Ord 1601 - Amending Chapter 35 Relating to the Storage of Hazardous MaterialsORDINANCE NO. 1501
ORDINANCE AMENDING CHAPTER 35 OF THE TOWN CODE
RELATING TO THE STORAGE OF HAZARDOUS MATERIALS
The Town Council of Los Gatos hereby ORDAINS:
C,PrTTnm T
Chapter 35 of the Town Code is hereby amended, as follows:
"CHAPTER 35
STORAGE OF HAZARDOUS MATERIALS
Article I
Sec. 35.010.005
Purpose.
General Provisions
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 requirements of this Chapter, other than the
requirement for secondary containment in underground storage facilities, except
as provided in Section 35.030.010(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 35.020.005 which is riot excluded by Section 35.020.010 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.
(d) The'Town shi apply for, and the Enforcing 'icer shall consider
and issue where appropriate, a permit, in conformity wi,.,, this Chapter, for the
storage of hazardous materials by Town in an underground storage tank, as those
terms are defined in Chapter 6.7 of Division 20 of the California Health and
Safety Code, wherever the Town's storage facility may be situated. Any other
city, county, district or department, or agency of the state which stores any
hazardous substance, in an underground storage tank, as those terms are defined
in Chapter 6.7, in this Town without a permit meeting the requirements of said
Chapter 6.7 issued by such other local agency, shall obtain and keep current a
permit from Town which conforms at a minimum to Section 25284 and 25284.1 of the
Health and Safety Code.
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 safeguard- in compliance with this Chapter.
(b) Enforcing Officer means the agent designated by the Town to
administer this Chapter, or any designee of such agent.
(c) Facility means a building or buildings, appurtenant structures, and
surrounding a�l n—C 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, Flamma e1 q ids, 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 Article II of 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 (U) 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 Chapter as well as any additional approvals thereto.
(y) 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 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) Pipes means pipeline systems which are used in connection with the
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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 con ainer which comes into immediate contact on its.inner
surface with the hazardous material being contained.
(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 the primary containment.
(m) Singe- walled means construction with walls made of but one thickness
of material. Laminate ,.coated, or clad materials shall be considered as
single - walled.
(n) Storage facil 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) Surnp means a pit or well in which liquids collect.
(p) Unauthorized dischar a means any release or emission of any hazardous
material which aoes not conform to the provisions of this Chapter, unless such
release is in accordance 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 Duality 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 stars ing liquids or to transmit standing liquids on a more or less
continuous basis.
Sec. 35.010.025
Professional Assistance for Determinations
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.
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Article II Materials Regulate'_
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
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, 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- tent- Butyl- 2- chlorophenyl- methyl methylphosphoramidate;
Camphor; Carbon black; 2- Chloro -6 (trichloromethyl) pyridine;
Clopidol; Coal tar pitch volatiles; 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 -tent- butyl -m- cresol).
(e) Any material which has been determined to be hazardous based upon any
appraisal or assessment by or on behalf of the party storing this material in
compliance with the requirements of the EPA or the California Department of
Health Services, or which should have been, but was not, determined to be
hazardous due to the deliberate failure of the party storing the material to
comply with the requirements of the EPA and /or the Department of Health
Services; or
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(f) Any materia, which has been determined by th' ,tarty 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.
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, Coppe Lead Manganese, Molybdenum,
Nickel, Rhodium um Silver Te luriu m' , Tin, ainc. Furthermore, Tanta um,
Tit Tungsten, and Uranium s al'f 6e excluded from regulation under this
Chapter.
(b) Retail Products
Hazardous materials when contained solely in consumer products
packaged for distribution to, and use by, the general public or commercial
products used at the facility solely for janitorial or minor maintenance
purposes such as paint thinner or wax strippers.
(c) Feed.
Hazardous materials when contained in a substance intended for use as
animal feed.
(d) Work Station
Hazardous materials located at a work station in a quantity
reasonably required for use as determined by Enforcing Officer under the
circumstances.
(e) Exemption
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.
Sec. 35.020.015
Underyround Tanks
Notwithstanding Section 35.020.010 above and in addition to those
materials regulated pursuant to Section 35.020.005 above, a permit shall be
required for the storage in an underground storage tank as defined by California
Health and Safety Code 25280(m), of any material defined as a hazardous
substance, in accordance with California Health and Safety Code Section
25280(c).
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icle III Containment Standar
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.
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,
except that the discretion with regard to underground storage facilities shall
be exercised in accordance with Subsection 35.030.010(c)(4) below, or to impose
reasonable additional or different requirements in order to better secure the
purpose and general obligation of this Chapter for protection of public health,
safety, and welfare. The guidelines approved pursuant to Section 35.130.010
shall serve as an 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 Capability
All new storage facilities intended 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. The permittee shall monitor each facility, based on
materials stored and the type of monitoring installed. 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 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
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.
(Z) Secondary containment:
(i) All secondary containment shall be constructed of
materials of sufficient thickness, density, and composition so
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at not to be structural weakened as a result of conta� with the discharged
hazardous materials anu so as to be capable of containit., nazardous 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 to
contain at least 110% of the volume of the primary container.
(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 one hundred (100) 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.
(i) A variance from the requirement for secondary containment
for 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 Town Council, that based on
the special circumstances:
A. The requirement of secondary containment creates an
unusual and particular hardship; and
B. An equivalent degree of protection is provided by the
proposed alternative; and
C. The proposed alternative has been appropriately so
certified as providing an equivalent degree of protection, by
independent consultant retained in accordance with Section
35.010.025, or has been specified as potentially appropriate for
a variance in the guidelines approved pursuant to Section
35.130.010.
(ii) The Town Council shall consider the variance, at a public
meeting, at which oral or written presentation on the matter may
be made. A notice which includes a statement that a variance
from secondary containment for hazardous materials will be
considered, and which specifies the address of the facility
seeking the variance, and the time and place of the meeting
shall be given in the following manner.
A. The Town Clerk shall cause a copy of the notice to be
published once in a newspaper of general circulation in the
Town, not less than ten (10) days prior to the meeting; and
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B, The Town Clerk shall cause a c of the notice to be
mailed ,c least ten (10) days prior to ...,s meeting to any party
who files a written request with the Town Clerk, for mailed
notice of meetings at which such variance is to be considered.
Such written request for notice shall be valid for one year from
the date on which it is filed unless a renewal request is
filed. Renewal request for such mailed notices shall be filed
on or before April 1st of each year.
(4) Variance - Construction and Monitoring Requirements
Underground storage tanks may be granted a variance from the
standards for construction and monitoring set forth in this
Article, other than from the requirement for double containment,
only upon a written finding by the officer issuing the permit
that the applicant has demonstrated by clear and convincing
evidence:
A. That because of special circumstances not generally
applicable to other property or facilities, including size,
shape, design, topography, location, or surroundings, the strict
application of the standards of this Chapter would be
unnecessary to adequately protect the soil and beneficial uses
of the waters of the state from an unauthorized release; or
B. That strict application of the standards of this
Chapter would create practical difficulties not generally
applicable to other facilities or property; and that the
proposed alternative will adequately protect the soil and
beneficial uses of the waters of the state from an unauthorized
release.
(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 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. If water could enter into the secondary
containment by precipitation or infiltration, the facility shall contain a means
of removing the water by the permittee. 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.
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Sec. 35.030.015 Existing Storage Facilities
Any storage facility inexistence 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 Chapter as long as it is providing
suitable storage for hazardous materials. In addition, storage facilities which
contain hazardous materials which are liquids or solids at standard temperature
and pressure (STP) must be monitored in accordance with a plan approved by
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
monthly 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, vacuum testing or hydrostatic testing of the piping
systems or underground storage tanks; 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),
location 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
35.140.003(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 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 0._, of Service Storage 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 that an
abandoned storage facility is located upon such property shall make a reasonable
effort to locate such storage facility within six (6) months of the effective
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 (90) days of its discovery. A closure plan shall
conform to the standards specified in Section 35.080.040.
Sec. 35.030.025 Monitoring
(a) Monitoring Methods. Monitoring methods shall include at least one
system for de�tectiny leakage - 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 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 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.
(b) Monitoring, Testing and Inspection. Every permittee under this
Chapter shall provide testing, monitoring (if applicable), and inspections in
compliance with the Hazardous Materials Management Plan and shall maintain
records adequate to demonstrate compliance therewith.
Sec. 35.030.030 Maintenance, Repair or Replacement
(a) Permittee will carry out maintenance, ordinary upkeep, and minor
repairs in a careful and safe manner. No permit or other approval will be
required for such maintenance and upkeep.
(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 accordance 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
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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 35.0£30.040 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. 35.030.035 Handling
(a) Dispensing and mixing of hazardous materials must not be done in such
a manner as to substantially increase the risk of an unauthorized discharge.
(b) When hazardous materials are moved into or 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. 35.030.040
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 Equipment
Emergency equipment shall be provided which is reasonable and appropriate
for potential emergencies presented by the stored hazardous materials. Such
equipment shall be regularly tested and adequately maintained.
Sec. 35.030.050.
Posting of Emergency Procedures
Simplified emergency procedures shall be posted conspicuously in locations
where hazardous materials are stored.
Article IV Hazardous Materials Management Plan
Sec. 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 .
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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 Description
(1) General Information
The HMMP shall contain the name and address of the facility and
business phone number of applicant, the name and titles and emergency
phone numbers of the primary response person and an alternate, the
number of employees, number of shifts, hours of operation, and
principal business activity.
(2) General Facility Description
The HPIMP 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;
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B. for each nonwast ha.�-ardous material which is stored in a
quantity greater than tha luantities 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:
Quantity Range Number Range Amounts
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:
U. for materials not regulated under this Chapter, but
regulated under the Uniform Fire Code, such as radioactives or
cryogens, or for materials stored in storage facilities exempted
by Sections 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
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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
ordered to do so by a court of competent jurisdiction. Permittee or
permit applicant shall be deemed a real party in interest in any such
action. Prompt notice of a lawsuit to compel disclosure 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 required to be amended
pursuant to Section 35.50.005.
(b) Hazardous Materials 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 H14MP 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) R ecordkeeping 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
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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.
Sec. 35.040.015
Short Form HMMP - Minimal Storage Site
(a) A facility shall qualify as a minimal storage site if the quantity of
each hazardous material stored in one or more storage facilities in an aggregate
quantity for the facility is 500 pounds or less for solids, 55 gallons or less
for liquids, or 200 cubic feet 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 5219 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.
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(4) Information describing that the hazardous materials will be
stored in a suitable 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 520£3 -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 35.05U.UIU(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 H1 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.
Butz
(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)B 2 -5 above.
(d) The HMIS shall also include a carcinogen identification form which
shall indicate the storage of any quantity of any carcinogen listed in Sections
52U8-5215 and Section 5219 of Title B 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.
(e) Where a claim for trade secret protection is made for any hazardous
material pursuant to Section 35.050.420, the HMIS to be publicly disclosed shall
indicate the number of materials claimed to be trade secrets and the aggregate
quantity range stored at the facility for each such hazardous material stated in
terms of the quantity ranges set forth in 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 number of carcinogens claimed to be trade
secrets.
Sec. 35.050.015 Public Records
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.U5U.U20
Trade Secrets
(a) Permittee or permit applicant may make a claim for the protection of
the identity of any hazardous material which is its trade secret by filing a
declaration under penalty of perjury on a form provided by 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 permittee's 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.
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(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,
clearly and conspicuously marked or labeled as containing 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
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 her
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 identify 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 35.060.005 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.
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Article VI Responsibility
Sec. 35.060.005
Reporting Unauthorized Discharge
(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 aboveground 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
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
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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 and authority to undertake and direct an
emergency response in order to protect the public health
and /or safety.
(2) Unconfirmed Unauthorized Discharge
M 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
other means, 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 a 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 Ufficer if such discharge presents a threat of
imminent danger to public health and safety.
(c) Office of Emergency Services
The Enforcing Officer shall submit a
Emergency Services within ten (M) working days
Officer is notified of an unauthorized discharge
tank.
written report to the Office of
from the date that the Enforcing
from an underground storage
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Sec. 35.U6U.010 anup 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
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. 35.060.015 Indemnification
The permittee shall indemnify, hold harmless and defend the Enforcing
Officer, its officers, employees and agents, and the Town, its officers,
employees and agents 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
ne�l %ence.
Article VII Inspections and Records
Sec. 35.070.005
Inspections by Town
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.
Permittees 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
y
discharge related to the storage facility in which the trade secret material is
contained. Therefore, perwittee 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 be'occupied, the officer shall first make a reasonable
-22-
attempt to contact a responsible person from such firm ur corporation and
request entry, except in emergency circumstances. If such entry is refused, the
officer seeking entry shall have recourse to every remedy provided by law to
secure entry.
(b) Inspections by Enforcing Officer - Discretionary
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 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.
Sec. 35.00.00
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 Special Inspections
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 Inspections
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. 35.07U.025
Maintenance of Records
All records required by this Cha ter 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.
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i
Article VIII
Sec. 35.U80.UU5 Permit
Application for 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.OiO
Application 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 Ufficer. 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 storaqe facility.
Sec. 35.080.015
Investigation
The officer to whom an application
make such investigation of the applicant
as such officer deems necessary to carry
Sec. 35.080.020 Approval of Permit
for a new or renewed permit is made may
and the proposed facility or activity
out the purposes of this Chapter.
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.U30 Temporary Permit
A temporary permit for storage may be issued where storage does not exceed
thirty (3U) days and occurs no more frequently than every six (G) months. The
Containment Standards of Article III, the Hazardous Materials Management Plan of
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.
-24-
, Sec. 35.080.035
(a) Issuance
issuance of Permits
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.
ri (a) 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 HMNP.
(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
(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.
-25-
,Sec. 35.U80.045
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
(90) days from the date that the application has been completed, or compliance
with the appropriate provisions of the California Environmental duality 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.
Sec. 35.U80.065
Transfer of Permit
The permit may be transferred to new owners of the same business only if
the new owners accept responsibility for all obligations under this Chapter at
the time of the transfer of the business and document such transfer on a form
provided by Enforcing Officer within thirty (30) days of transfer of ownership
of the business. Such transfer shall be subject to the approval of Enforcing
Ufficer.
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 Auulication.
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.
Sec. 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 Appeal to Enforcing 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 Ufficer 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.U9U.030 Disposition of Appeal
After the hearing on the appeal, the Enforcing Officer may refer the
matter back to the originating officer for a new investigation and decision, may
affirm the decision of the originating officer, may approve a provisional permit
as provided in Section 35.030.025 or may approve the application with or without
conditions. 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.
Article 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 or
after a permit is issued:
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(a) Fraud, willful misrepresentation, or any willful inaccurate )r 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 Noncompliance
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
35.100.005(d). Such notice shall be sent by
the noncompliance is not abated, corrected, o
specified, remedial action may be taken.
Sec. 35.100.015 Notice of Hearing
pursuant to Section
certified mail to permittee. If
r rectified within the time
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 Hearing
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
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 the hearing, finds that cause exists for
remedial action, the Enforcing Officer shall impose one or more of the
followiny:
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(a) A warning;
(b) An order to correct the particular noncompliance specified in the
notice 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 riot 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 Suspension, Revocation or Expiration
The suspension, revocation or expiration of a permit issued under this
Chapter shall not prevent any proceedings to investigate such permit, any
remedial action against such permittee or any proceeding against such permittee.
Sec. 35.100.040 Return of Permit.
In the event that a permit issued under the provisions of this Chapter is
suspended or revoked, the permittee shall forward it to the issuing officer not
later than the end of the third business day after notification of such
suspension or revocation.
Article XI.
Sec. 35.110.005
Hearing Rules
Hearing Procedure
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 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.
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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. 35.120.010
Civil Penalties
Any person, firm, or corporation who intentionally or negligently violates
any provision of this Chapter, except that an unauthorized discharge which is
recordable and recorded in compliance with Section 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.UU) 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, in which the Enforcing
Ufficer 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.
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.
Sec. 35.120.020 Public Nuisance
A violation of any provision of this Chapter shall constitute a public
nuisance.
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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
Sec. 35.130.OU5
Miscellaneous
Disclaimer of Liability
(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, employee, or
agent thereof or the'Town, any officer, employee or agent 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
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
Office of the Town Clerk. Such guidelines, in the areas addressed therein,
shall serve as an 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 �)f
judgment and discretion.
Sec. 35.130.020
Conflict with Other Laws
Notwithstanding any other provision of this Chapter:
(a) A storage facility regulated by any state or federal agency will be
exempted from any conflicting provisions of this Chapter.
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(b) If the storage facility is required to have a permit from the
Departuient of Health Services under Health and Safety Code Section 25100 et
sec. it shall be exempted from any provision of this Chapter which is covered
y�the 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 Severability
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.
Sec. 35.130.030
Report to the State Water Resources Control Board
The Town will require its permit applicants and permittees to fill out, in
audition to forms required for Town's own purposes under this Chapter,
standardized forms based on the application form and annual report form prepared
by the State Water Resources Control Board as specified by California Health and
Safety Code Section 25283.2, and the Enforcing Officer will forward these forms
to the State Water Resources Control Board.
However, where any of the information required on such standardized forms
is claimed by the permit applicant or permittee to be a trade secret, the permit
applicant or permittee shall leave that portion of the form submitted to Town
blank, except to indicate the words "trade secret," and the permit applicant or
permittee shall thereafter, within ten (10) days of submitting the incomplete
form to Town, submit the completed form including the trade secret information
directly to the State Water Resources Control Board. Town shall have no
obligation to protect, as a trade secret, any information which is furnished to
it for forwarding to the State Water Resources Control Board on these
standardized forms.
Article XIV Compliance Schedule
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 Permit 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 Plan must be filed at the time
of application for a Hazardous Material Storage Permit.
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(b) Existing St! . ge Facilities
(1) A facility which has any existing hazardous materials storage
facilities or had obtained a building permit for such a storage facility prior
to the effective date of this Chapter, and to which no new storage facility is
added, shall have one (1) year from such effective date to file a 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 December 5th, 1983, and adopted by the following vote
as an ordinance of the Town of Los Gatos at an adjourned regular meeting of the
Town Council on December 12th, 1983.
AYES: COUNCILMEMBERS Joanne Benjamin, Eric D. Carlson, Brent N.
Ventura and Mayor Thomas J. Ferrito
NOES: COUNCILMEMBERS Non
ABSTAIN: COUNCILMEMBERS None
ABSENT: COUNCILMEMBERS Terrence J. Dail
SIGNED
' MAYOR OF /1 TO - OF LOS GATOS
ATTEST:
f
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