Chapter 8.35 HAZARDOUS MATERIALS MANAGEMENT

(a) The purpose of this chapter is the protection of health, life, the environment, resources, and property through control of the management, handling, use, storage and disposal of hazardous materials.

(b) The city intends to act as its own local administering agency for hazardous materials regulations. This chapter is intended to provide for compliance with state-mandated regulation of underground storage tanks (Cal. Health & Safety Code Chapter 6.7 – Sections 25280 through 25299.7), and hazardous materials (Cal. Health & Safety Code Chapter 6.95 – Sections 25500 through 25521).

(c) This chapter is intended to be used in conjunction with the Uniform Fire, Plumbing, Mechanical, Electrical, and Building Codes most recently adopted by the city of Fremont.

(d) In the event of conflicting or overlapping regulatory provisions, the more stringent applicable requirement shall prevail. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12100.)

8.35.020 General obligation – Safety and care.

(a) No person, firm, corporation, city, county, district or department, or agency of the state shall cause, suffer, or permit the management or handling 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 an unreasonable risk of such unauthorized discharge or poses an unreasonable risk to the safety of the community and the environment.

(b) The city of Fremont shall have the discretion to exempt an applicant from any specific requirement in this chapter, to permit an applicant for different requirements or to require an applicant to meet additional requirements where the city judges such action would be appropriate and consistent with achieving the general obligation of this chapter for protecting public health, safety and the environment as long as these actions would not constitute a violation of federal or state regulations.

(c) Users of hazardous materials are expected to be in compliance with current rules, policies, and regulations regarding waste minimization. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12101.)

8.35.030 Specific obligations.

(a) Any person, firm, or corporation which handles any material regulated by Section 8.35.070, which is not excluded by Section 8.35.080, shall obtain and keep current a hazardous materials management permit.

(b) All regulated hazardous materials shall be used, handled, and stored in conformity with the standards established in Article III of this chapter.

(c) The storage, use, and handling of such hazardous materials shall be in conformance with the approved hazardous materials management plan. For additional requirements, see Section 8.35.010(c) and (d).

(d) Any city, county, district, department, or agency of the state of California which handles any hazardous substance, as defined in Cal. Health & Safety Code § 25281 and Section 8.35.040, in this city shall obtain and keep current a permit from the city which conforms, at a minimum, to Cal. Health & Safety Code Division 20, Chapter 6.95 and to this chapter. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12102.)

8.35.040 Definitions.

Unless otherwise expressly stated, whenever used in this chapter, the following terms shall have the meanings set forth below:

(1) “Abandoned,” when referring to a storage facility, means out of service and not safeguarded in compliance with this chapter.

(2) “Aboveground tank” means any one or combination of tanks, including pipes connected thereto, used for hazardous materials of which no more than 10 percent of the total volume is beneath the surface of the ground.

(3) “ACGIH” means the American Conference of Governmental Industrial Hygienists, which develops and publishes recommended occupational exposure limits for chemical substances and physical agents.

(4) “Acid” means a compound that reacts with metals to yield hydrogen gas; reacts with a base to form a salt; dissociates in water to yield hydrogen or hydronium ions; has a pH of less than seven; and neutralizes bases or alkaline media.

(5) “ANSI” means the American National Standards Institute that identifies the need for national consensus standards and coordinates the development of standards that relate to safe design/performance of equipment and procedures.

(6) “Atmosphere” means a pressure measurement equivalent to 14.7 pounds per square inch (760 millimeters of mercury).

(7) “Barrel” means a volume of 42 U.S. gallons.

(8) “Base” means a substance that liberates hydroxide (OH) anions when dissolved in water, receives a hydrogen atom from a strong acid to form a weaker acid, and gives up two electrons to an acid.

(9) “Binary explosives” are commonly sold as two separate components, both of which are inert or nonexplosive until mixed.

(10) “Boiling point” means the temperature at which a liquid changes to a vapor state at a given pressure, usually sea level or one atmosphere.

(11) “C” means Celsius or centigrade.

(12) “CAS” means the Chemical Abstract Service in Columbus, Ohio, and is associated with the American Chemical Society.

(13) “CFR” means the Code of Federal Regulations.

(14) “Chemical name” means the specific designation of a substance in accordance with the International Union of Pure and Applied Chemists (IUPAC) system, or by the nomenclature developed by the Chemical Abstracts Service.

(15) “City” means the city manager or his/her designee, except where it clearly is intended to refer to the geographical confines of the city of Fremont.

(16) “Common name” means any designation or identification such as code name, code number, trade name, or brand name frequently used to identify a substance other than by its chemical name.

(17) “Compressed gas” means a gas having, in a container, an absolute pressure exceeding 40 psi (2,068 mm Hg) at 70 degrees (21.1 degrees C), or an absolute pressure exceeding 104 psi (5,378 mm Hg) at 130 degrees F (54 degrees C) regardless of the pressure at 70 degrees F, or a liquid having a vapor pressure exceeding 40 psi (2,068 mm Hg) at 100 degrees F (37.8 degrees C).

(18) “Cryogenic fluids” means those fluids that have a normal boiling point below minus 150 degrees F (minus 101 degrees C).

(19) “DOT” means the United States Department of Transportation.

(20) “EPA” means the United States Environmental Protection Agency.

(21) “Emptied container” means any containing vessel that has been cleaned and purged of all residue within detectable limits or equivalent as approved by the city.

(22) “Evaporation rate” means the rate at which a material vaporizes (evaporates) compared to the rate of vaporization of n-butyl acetate (NBuAc) which is designated as one.

(23) “Explosives” and “explosive materials” mean any chemical compound, mixture, or device, the primary purpose of which is to function by explosion, including black powder, blasting agents, detonators, safety fuses, squibs, ignitors, and cords for ignition and detonation and all materials as defined in 49 CFR 173.53 through 173.100, inclusive.

(24) “F” means Fahrenheit.

(25) “Facility” means a building or buildings, appurtenant structures, and surrounding land area used by a single business or governmental entity at a single location or site.

(26) “Finished product” means a product that does not undergo further chemical change or change in physical composition, and is all of the following:

(A) Consistent in its physical characteristics;

(B) Chemically stable under normal storage, use and handling conditions; and

(27) “Gas” means a formless fluid that occupies the space of its enclosure and can be changed to its liquid or solid state only by increased pressure and/or decreased temperature.

(28) “Handling” means the management or use of a material including all activities that take place within a facility; the placing of a material into or taking it out of a facility; and the storage, use, and disposal, including recycling, of that material.

(29) “Hazardous chemical reaction” means any reaction which generates pressure or by-products which may cause significant injury, illness or harm to humans, domestic animals, livestock, wildlife, property or the environment.

(30) “Hazardous materials” (or “hazardous substances”), when used in this chapter, includes any of the following:

(A) Any material listed as a hazardous or extremely hazardous material and/or hazardous or extremely hazardous waste in Title 22 of the California Code of Regulations (CCR) Section 66680, or meets the “Criteria for Identification of Hazardous and Extremely Hazardous Waste” set forth in Title 22 CCR Article 11 as amended, beginning at Section 22-66693, whether or not the substance or material is characterized as a waste.

(B) Any material on the list of hazardous substances prepared by the Director of Industrial Relations of the Division of Occupational Safety and Health (Cal/OSHA) pursuant to Cal. Lab. Code § 6382.

(C) Any material listed in the California Code of Regulations (CCR) Division 21.5 “Safe Drinking Water and Toxic Enforcement Act of 1986,” Title 22, Section 22-1200, as a chemical known to cause cancer or reproductive toxicity.

(D) Any material defined by the U.S. Occupational Safety and Health Administration (OSHA) as a “hazardous chemical” in 29 CFR 1910.1200, Appendix A.

(E) Any material defined as a “hazardous material” by the U.S. Department of Transportation in 49 CFR Section 171.8.

(F) Any material listed as a hazardous substance or toxic pollutant by the U.S. EPA in 40 CFR Part 302, Table 302.4 and/or 40 CFR 401.15.

(G) Any material listed as an “extremely hazardous substance” by the U.S. EPA in 40 CFR Part 355, Appendix A.

(H) Any material designated as a hazardous substance under the Federal Water Pollution Control Act as stated in the U.S. EPA regulations at 40 CFR Part 116, Table 116.4A.

(I) Any material which exhibits the characteristics of hazardous waste, as stated at 49 CFR Part 261, Subpart C, beginning at Section 261.20, whether or not the material is characterized as a waste.

(J) Any material listed as a hazardous waste by the U.S. EPA 49 CFR Part 261, Subpart D, beginning at Section 261.30, whether or not the material is characterized as a waste.

(K) Any material which exhibits the hazardous characteristics of or is specifically listed in the hazardous material categories of the Uniform Fire Code, 1988 Edition, Appendix VI-A, paragraph 2.

(L) Any material (such as liquefied propane gas) which has been determined, through testing or other means, to be likely to create a significant potential or actual hazard to public health, safety or the environment. This subsection does not establish the requirement to test materials for the purposes of this article.

(M) In addition to the above, hazardous material, including wastes, shall mean any material which is subject to regulation pursuant to Article II of this chapter. In applying the above, a mixture shall be deemed to be a hazardous material if it contains one percent or more of any material regulated pursuant to Article II of this chapter or any such material in concentrations greater than the TLV, unless there are significant hazards remaining.

(N) The city may exempt any material from the requirements of this chapter where it has been demonstrated that the material in the quantity and/or concentration stored does not present a significant actual or potential hazard to the public health, safety or environment.

(31) “Hazardous materials facility” means any one or combination of tanks, sumps, wet floors, waste treatment facilities, pipes, vaults or other containers, used, or designed to be used, for the handling of hazardous materials at a facility.

(32) “Hg” means the chemical symbol for mercury.

(33) “Highly toxic materials” means materials with a health hazard rating of three or four when rated in accordance with the National Fire Protection Association’s rating system. Such materials are those which on short exposure could cause serious, temporary or residual injury or death.

(34) “Hypergolic materials” means any materials which are capable of igniting spontaneously upon contact with another substance.

(35) “IDLH” means the concentration of a substance which is immediately dangerous to life and health and is defined as the maximum concentration from which a healthy adult could escape within 30 minutes without any escape-impairing symptoms or any irreversible health effects.

(36) “Ignitable materials” (gas, solid, or liquid) have a flashpoint less than 140 degrees F (60 degrees C).

(37) “Liquefied petroleum gas (LPG)” means any material which is composed predominantly of the following hydrocarbons or mixtures of them: propane, propylene, butane (normal butane or isobutane) and butylenes.

(38) “mm” means millimeter.

(39) “MSDS” means a material safety data sheet prepared pursuant to 29 CFR 1910.1200 which provides significant information on a substance’s properties, hazards, and protective measures.

(40) “NFPA” means the National Fire Protection Association.

(41) “Officer” means the city manager or any designee of the city manager.

(42) “Organic peroxide” means any compound containing the bivalent -o-o-(peroxide) structure and which may be considered a derivative of hydrogen peroxide where one or more hydrogen atoms have been replaced by organic radicals.

(43) “OSHA” means the Occupational Safety and Health Administration of the United States Department of Labor.

(44) “Oxidizing materials” means substances that readily yield oxygen to stimulate combustion.

(45) “Permit” means any hazardous materials management permit issued pursuant to this chapter as well as any additional approvals thereto.

(46) “Permit quantity limit” means the maximum amount of hazardous material that can be handled at a facility. Separate permit quantity limits will be set for each facility for which a permit is obtained in accordance with the requirements of this chapter.

(47) “Person” 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. “Person” also means any city, county, district, the state, or any department or agency thereof.

(48) “pH” means a value that represents the acidity or alkalinity of an aqueous solution; it is the logarithm to the base 10 of the reciprocal of the hydrogen ion concentration of a solution.

(49) “Pipes” means pipeline systems which are used in connection with the handling 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.

(50) “Poison, Class A” is a Federal Department of Transportation term for an extremely dangerous material of such a nature that a very small amount mixed with air is immediately dangerous to life or health as defined in 49 CFR 173.326.

(51) “psi” means pounds per square inch.

(52) “Primary containment” means the first level of containment, i.e., the inside portion of that container which comes into immediate contact on its inner surface with the hazardous material being contained or the conditions for which the containment is designed and/or intended.

(53) “Product-tight” means impervious to the material which is contained, or is to be contained, so as to prevent the seepage of the material from the containment. To be product-tight, the container shall be made of a material sufficient to withstand greater than the maximum working pressure and is not subject to physical or chemical deterioration by the material being contained.

(54) “Pyrophoric” means a material that ignites spontaneously in air at or below 130 degrees F (54 degrees C).

(55) “Radioactive material” means any material or combination of materials that spontaneously emits more than 10 milliroentgens of ionizing radiation in a 24-hour period or has a specific activity greater than two one-thousandths microcuries per gram.

(56) “Reactive materials” means those materials which can enter into a chemical reaction with other stable or unstable materials and that may thus produce a hazardous condition or material.

(57) “Secondary containment” means the level of containment external to and separate from the primary containment.

(58) “SIC Code” means the identification number assigned by the Standard Industrial Classification Code of the Federal Office of Management and Budget.

(59) “Single-walled” means construction with walls made of but one thickness of material. Laminated, coated, or clad materials shall be considered as single-walled.

(60) “Specific gravity” means the weight of a material compared to an equal volume of water where water is one.

(61) “Standard temperature and pressure (STP)” means a temperature of 32 degrees F (zero degrees C) and an atmospheric pressure of one atmosphere, or 760 millimeters mercury.

(62) “Sump” means a pit or well in which liquids collect.

(63) “TLV” means threshold limit value, which expresses the airborne concentration of a substance to which healthy adult workers may be exposed daily without adverse effects, as determined by ACGIH.

(64) “Toxicity” means the sum of adverse effects resulting from exposure to a material or as defined by the United States Environmental Protection Agency.

(65) “Unauthorized discharge” means any release or emission of any hazardous material which does 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 Quality Act, or with Union sanitary district sewer pretreatment requirements.

(66) “Underground tank” means any one or combination of tanks, including pipes connected thereto, used for hazardous substances, of which 10 percent or more of the total volume is beneath the surface of the ground.

(67) “Unstable materials” means those materials (other than explosives) which, when in the pure state or as commercially produced products, in the absence of an inhibitor, in the presence of contaminants, in contact with noncompatible materials or if exposed to heat, friction or shock, will vigorously polymerize, decompose, condense, become self-reactive, undergo other violent chemical changes, or will explode.

(68) “Vapor density” means the weight of a gas compared to the weight of an equal volume of air where air is defined as one.

(69) “Vapor pressure” means the force exerted by a gas in equilibrium with its own liquid in a closed container, measured at 68 degrees F (20 degrees C).

(70) “Wet floor” means a horizontal surface which is used to routinely collect, contain or maintain liquids or to transmit liquids on an intermittent or continuous basis.

(71) “Work station” means a defined space or an independent principal piece of equipment using hazardous material within a production area where a specific function, a laboratory procedure or a research activity occurs. Approved cabinets serving the work station shall be defined as a part of the work station. The station may contain ventilation equipment, fire protection devices, sensors for gas and other hazards, electrical devices and other processing and scientific equipment. This section is not to be construed as exempting any site from compliance with appropriate health, safety and fire regulations as determined by the city. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12103.)

8.35.050 Establishing limits in which hazardous materials regulated by this chapter are allowed.

Hazardous materials regulated by this chapter shall be allowed within the city limits, provided such use is in current compliance with the zoning ordinance and general plan. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12104.)

8.35.060 Enforcement officer.

“Enforcement officer” means the city manager, the officer named in Section 1.15.050(b)(3)(D) (power of arrest), Chapter 1.15 (penalty provisions), and/or any other persons designated by the city manager to administer and enforce the provisions of this chapter. (Ord. 1946 § 6, 11-27-90; Ord. 2004 § 8, 5-12-92. 1990 Code § 3-12105.)

Article II. Materials Regulated

8.35.070 Materials regulated.

The materials regulated by this chapter shall consist of the following:

(a) All hazardous and extremely hazardous materials as defined in Section 8.35.040(30) and Cal. Health & Safety Code § 25281.

(b) Any material which has been determined by the city to be hazardous, based upon any appraisal or assessment by or on behalf of the party handling this material or the manufacturer of the product, in compliance with the requirements of EPA or the California Department of Health Services.

(c) Any material which is rendered hazardous by its physical characteristics, such as compressed gases, or by its presence in the environment where it would not naturally occur in its existing concentration or state.

(d) Notwithstanding Section 8.35.090 and in addition to those materials regulated pursuant to subsections (a) through (c) of this section, a permit shall be required for the storage in an underground storage tank, as defined by Cal. Health & Safety Code § 25281(u), of any material defined as a hazardous substance, in accordance with Cal. Health & Safety Code § 25316. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12200.)

8.35.080 Exclusions.

This chapter does not apply to the following materials:

(a) Retail products. Hazardous materials contained solely in consumer products packaged for direct distribution to, and use by, the general public or commercial products used for janitorial or minor maintenance purposes such as paint thinner or wax strippers.

(b) Work station. Hazardous materials located at a work station in a quantity reasonably required for either (1) use during a single work shift as determined by the city or (2) as for which a maximum contaminant level has been established. This section is not to be construed as exempting any site from compliance with applicable health, safety, and fire regulations as determined by the city.

(c) Exemption. The city shall exempt any material from the requirements of this chapter where it has been demonstrated to the satisfaction of the city that the material in the quantity and/or solution handled does not present a significant, actual or potential hazard to the public health, safety or environment.

(d) Liquefied petroleum gas. When used solely for on-site residential space heating, ovens or furnaces in lieu of natural gas or nonresidential uses where the total quantity of LPG does not exceed 20 gallons per container.

(e) Finished products that are acceptable for surface transportation and do not require labeling and/or placarding per 49 CFR 172.101.

(f) Small quantities of hazardous materials that are not identified as acutely hazardous and/or extremely hazardous by either the state of California or the EPA, nor are identified as materials of special concern by the city, nor are identified as a poison Class A by the U.S. Department of Transportation, nor exceed, in aggregate quantity, 55 gallons of liquid, 500 pounds of solid, or 200 cubic feet of compressed gas (measured at STP).

(g) Any waste material excepted by the California Department of Health Services.

(h) Any storm water, process water or groundwater permitted by the California Regional Water Quality Control Board for discharge to state water. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12201.)

8.35.090 Alternate means.

Where specific requirements are not otherwise established, handling, storage, transportation or use of hazardous materials shall be in accordance with nationally recognized standards of good practices. This may require that the permittee retain a suitably qualified independent engineer, or chemist, or other appropriate professional, acceptable to the city, for the purpose of evaluating and rendering a professional opinion respecting the adequacy of such practice to achieve the purpose of this chapter. The city shall be entitled to rely on such evaluation and/or opinion of such engineer, chemist or professional consultant in making the relevant determinations provided for in this chapter. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12202.)

8.35.100 Safety provisions.

Satisfactory provisions shall be made for appropriate containment, neutralization and removal of spills or leakage of hazardous materials which may occur during storage, handling, transportation or use. This shall include necessary safety equipment for personnel. The city shall determine what provisions are “satisfactory” and what safety equipment is “necessary.” An inventory of the above items shall be provided to the city. Equipment shall be regularly tested and adequately maintained. For additional requirements, see Section 8.35.010(c) and (d). (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12203.)

8.35.110 Certification and training.

Certification and training programs may require approval by the city at the discretion of the city manager. At a minimum they must comply with 29 CFR 1910.1200, the OSHA Communication Standard, and related regulations of CAL-OSHA. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12204.)

Article III. Handling Standards

8.35.120 Handling of hazardous materials.

No hazardous material covered by this chapter shall be managed (stored, handled, created, used, moved, consumed, removed or delivered) without either a permit that has been issued pursuant to this chapter or written approval by the city. Appropriate plans, data, and all other requested information must be submitted by the applicant to demonstrate, to the satisfaction of the city, that adequate provisions have been made for the protection of the community and the environment.

The city of Fremont, a local administering agency, shall require reasonable, site-specific conditions beyond any other applicable codes, when it deems the conditions so warrant.

All plans for installation, construction, repair, modification, use, closure or removal of any underground facility involving hazardous materials covered under this chapter must be approved in advance by the city. Underground facilities include structures such as sumps, separators, storm drains, catch basins, oil field gathering lines, refinery pipelines, lagoons, evaporation ponds, well cellars, separation sumps, lined and unlined pits, and lagoons. Sumps, which are a part of a monitoring system, are not exempt.

Discretion and reasonable judgment will be used in the application of this chapter by the city. The city shall apply technical standards which, in their professional judgment, are appropriate, but in all cases, minimum standards established by relevant state and federal regulations will apply. For additional requirements, see Section 8.35.010(c) and (d).

Any hazardous materials handling procedure not specified in the hazardous materials management plan shall be governed by the criteria in this chapter and applicable minimum standards established in all local, state, and federal regulations will apply. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12300.)

8.35.130 New hazardous materials facilities.

(a) Requirement for Certificate of Occupancy. No person, firm or corporation shall receive a certificate of occupancy for any facility involving the handling of hazardous materials until a permit or approval has been issued pursuant to this chapter.

(b) Monitoring Capability. All facilities intended for the handling of hazardous materials shall be designed and constructed with a monitoring system capable of detecting when the material stored in the primary containment has entered the secondary containment. Daily visual inspection of the primary containment is the preferred method; however, other means of monitoring may be required. Where secondary containment may be subject to the intrusion of water, a means of monitoring for such water intrusion and for safe removal of the water shall be provided.

Whenever monitoring devices are provided, they shall, where applicable, be connected to attention-getting visual and audible alarms, tested at regular intervals and adequately maintained.

(c) Containment Requirements. Primary and secondary levels of containment shall be required for all facilities intended for the storage, use or handling of hazardous materials.

(1) All primary containment shall be product-tight.

(2) Secondary Containment.

(A) All secondary containment shall be constructed of materials of sufficient thickness, density, and composition so as not to be structurally weakened as a result of contact with the hazardous material and so as to be capable of containing hazardous material 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 material, but not less than 96 hours in any case.

(B) In the case of an installation with one primary container, the secondary containment shall be large enough to contain at least 110 percent of the volume of the primary container.

(C) In the case of a facility with multiple primary containers, the secondary container shall be large enough to contain 150 percent of the volume of the largest primary container placed in it, or 10 percent of the aggregate internal volume of all primary containers in the facility, whichever is greater.

(D) If the facility is open to rainfall, then the secondary containment must be able to additionally accommodate the volume of a maximum 24-hour rainfall as determined by a 100-year storm history.

(E) If water could enter into the secondary containment, the facility shall contain a means of removing the 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, by an authorized disposal method.

(F) If the facility is subject to internal fire suppression sprinklers, then the secondary containment must be able to additionally accommodate the volume of a maximum 20-minute sprinkler burst.

(G) Facilities must maintain all required permits with Union sanitary district, California Department of Health Services, and the Bay Area air quality management district.

(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.

(d) Piping.

(1) All piping, valves, and fittings shall be designed for maximum working pressures and structural stresses to which they may be subjected. They shall be of material suitable for use with the product being handled.

(2) All piping, both aboveground and underground, where subject to external corrosion, shall be cathodically protected in conformance with the requirements of the Uniform Fire Code.

(3) All piping shall be provided with secondary containment as in subsection (c)(2) of this section.

(4) The secondary containment of the piping may lead back to the container’s secondary containment.

(5) Underground pressurized piping that conveys a hazardous substance shall be equipped with an automatic line leak detector which shall be tested at least annually.

(e) Spill and Overflow Protection. Means of spill and overflow protection may be required for any primary container. Underground tanks must have a minimum of 15 gallons of overfill protection for each primary container.

(f) Separation of Materials. Materials which, when combined, may result in a hazardous condition, or 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.

(g) Drainage System. Drainage of precipitation from within a facility containing hazardous materials shall be controlled in a manner approved by the city so as to prevent hazardous materials from being discharged to the sanitary sewer or to navigable waterways without the appropriate permits.

(h) Professional Engineer Stamp. The city may require design submittals to bear the signature and stamp of an engineer, or other professional, registered with the state of California.

(1) Technical assistance for completing required documentation may be provided by environmental consultants in the private sector. Reports, documents, and plans which contain engineering, geology, and/or geophysical information must be prepared under the direction of properly licensed individuals in the state of California (Cal. Bus. & Prof. Code §§ 6735, 7835 and 7835.1). Responsibility for the technical information is indicated by the signature and stamp of the seal of the licensed individual. More than one signature and seal may be required where more than one professional specialty is included in the technical document submitted.

(2) All borehole and monitoring well logs, excavation procedures, and soil/ground water samplings are to be certified by a registered geologist, certified engineering geologist, or registered engineer.

All subsurface geologic data from boreholes, monitoring wells, trenches, etc., are to be displayed on geologic cross-sections.

(i) Installation of Equipment. All hazardous materials equipment shall be properly installed. Proper installation shall include, but not be limited to, adequate anchoring and support.

(j) Operation and Maintenance of Equipment. All emergency equipment and other equipment, the failure of which may result in an unauthorized spill or significant harm to the environment, the community, or employees, will receive appropriate preventative maintenance, which will be recorded. Calibration, testing and major repairs will be recorded and performed in a timely manner.

(1) All equipment shall be operated only within design limitations and maintained in good working order.

(2) No hazardous materials equipment shall be exposed to significant damage from the routine operation of forklifts, normal traffic, or vandalism. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12301.)

8.35.140 Existing hazardous materials facilities.

Any existing facility at which hazardous materials are handled must be permitted pursuant to this chapter. Such facilities must be outfitted with a monitoring system (which may be visual inspection) capable of detecting unauthorized releases of any hazardous material(s) therein. Facilities which contain hazardous materials must be monitored in accordance with a plan approved by the city.

(a) A monitoring plan for each facility containing hazardous materials shall be submitted to the city 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 visual inspection is not practical, an alternative method of monitoring each facility on a frequent basis may be approved by the city.

(c) Alternative method(s) of monitoring may include, but are not limited to: pressure testing, vacuum testing or hydrostatic testing of systems; vadose and groundwater monitoring well(s) which are downgradient and adjacent to the facility; vapor analysis within the well(s), and an analysis of the soil boring(s) at the time of initial installation of the well(s). The number, depth, location of well(s), and sampling frequency shall be approved by the city and the Alameda County water district.

(d) The continued use of and permit approval for existing facilities is subject to review and modification or termination by the city whenever there has been any reportable unauthorized discharge. It may also be reviewed by the city each time the permit is renewed. In determining whether continued use of a facility is safe, the city shall consider the age and history of the facility, the methods of containment, the methods for monitoring, the feasibility of the 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. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12302.)

8.35.150 Inactive hazardous materials facilities.

(a) No facility shall be abandoned.

(b) Facilities which are temporarily out of service, and are intended to be returned to use, must continue to be monitored and inspected. Unless specifically exempted by the city through the HMMP process, such inactive facilities must be returned to use, or closed, within one year of becoming inactive. City may require additional safeguards for any and all inactive facilities as the city deems required to protect the community and/or the environment.

(c) Any facility which is not being monitored and inspected in accordance with this chapter must be closed in a manner approved by the city as specified in the hazardous materials management plan and in accordance with Section 8.35.410(b).

Facilities must submit a closure plan no less than 30 days prior to intended closure or within 60 days of knowledge of intent to close, whichever is earlier.

(d) Any person, firm or corporation having an interest, including a leasehold interest, in real property and having reason to believe that an abandoned hazardous materials facility is located upon such property shall make a reasonable effort to locate such facility and notify the city of its belief.

(e) Whenever an abandoned facility is located, a plan for the closing or the upgrading and permitting of such facility shall be filed by the property owner within 90 days of its discovery. A closure plan, if submitted, shall conform to the standards of a closure plan, as specified in Section 8.35.230(a)(12). (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12303.)

8.35.160 Monitoring, testing and inspection.

Every permittee under this chapter shall provide testing, certification, maintenance schedules, monitoring, and inspections in compliance with an approved hazardous materials management plan and shall maintain records adequate to demonstrate compliance therewith. A copy of all monitoring reports must be submitted to the city for review upon request by the city. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12304.)

8.35.170 Maintenance, repair or replacement.

(a) Permittee shall carry out maintenance and upkeep, including minor repairs, in a careful and safe manner. No permit or additional approval will be required for such maintenance and upkeep for aboveground facilities. However, advanced notification for such maintenance is required for underground facilities.

(b) Any substantial modification or repair of a storage facility, other than emergency repairs, shall be in accordance with plans to be submitted to the city and approved in accordance with Section 8.35.410 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 required to prevent or contain an unauthorized discharge or to protect the integrity of the containment. However, within three working days after such a discovery is made, permittee shall seek approval pursuant to Section 8.35.410 and notify the city of the situation and planned response.

(d) Replacement or significant alteration of any facility or equipment for hazardous materials must be in accordance with the new installation standards for Section 8.35.130.

(e) Access to all equipment for service, maintenance, and inspections shall not pose a hazard to personnel or equipment.

(f) All hazardous material handling equipment will receive appropriate preventative maintenance, which will be recorded. Repairs will be recorded and performed in a timely manner. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12305.)

8.35.180 Storage cabinets for hazardous materials.

Cabinets for the storage of hazardous materials shall be of approved construction. Doors shall be self-closing. Cabinets shall be brightly painted and conspicuously labeled on a contrasting background with hazard identification in accordance with NFPA Standard Identification Symbols. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12306.)

8.35.190 Aboveground containers and pressure vessels.

(a) All aboveground tanks, pressure vessels and containers permanently installed, mounted or affixed and used for the handling of hazardous materials regulated by this chapter shall be identified in accordance with the Uniform Fire Code. Labels shall conform with the fire code and NFPA Standards for size and color and shall be affixed to each tank, vessel or container so as to be conspicuously visible at all times.

(b) When any tank covered by this section is housed within a building, the building shall have the same hazard identification label in a conspicuous location on the exterior of the building.

(c) Additional means of identification, such as signs containing chemical name, percentage concentration, hazard class, and the posting of inventories or emergency procedures may be required by the city.

(d) Tanks used for manufacturing, or in a batch process, where the characteristics of the materials change to the extent that identification of the actual contents of the tank is not practical, are exempted from these identification requirements. However, at a minimum, they must be labeled “hazardous material” or equivalent.

(e) Handling, dispensing and mixing of hazardous materials must not be done in such manner as to cause or significantly increase the risk of an unauthorized discharge.

(f) When hazardous materials are moved into or out of a 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 cause or substantially increase the risk of an unauthorized discharge.

(g) All handling, storage, and transportation equipment must be appropriately labeled. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12307.)

8.35.200 Secured facilities.

Facilities shall be appropriately secured to prevent unauthorized access. Facilities shall be kept secure when unattended. In some cases, the city may require more protective measures than fences and/or locks. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12308.)

8.35.210 Regulations applicable to specific materials.

(a) The information in this section is provided for purposes of ensuring the safe and secure handling of the listed hazardous materials, as well as the protection and safety of emergency response personnel:

(1) Radioactive materials;

(2) Ozone generating facilities;

(3) Extremely toxic gases;

(4) Explosives;

(5) Ammonia.

(b) Regulations applicable to each of the aforementioned materials are discussed in detail in the following subsections:

(1) Radioactive Materials.

(A) Durable, clearly visible signs of warning of radiation dangers shall be placed at all entrances to areas or rooms where radioactive materials are used or stored. In addition, each container in which radioactive materials are used, stored or transported shall bear a durable, clearly visible, appropriate warning sign. Such signs shall bear the three-bladed radiation symbol.

(B) Signs are not required for storage of manufactured articles such as instruments or clock dials or electronic tubes or apparatus of which radioactive materials are a component part, and luminous compounds, when securely packed in strong containers, provided the gamma radiation at any surface of the package is less than 10 milliroentgens in 24 hours. Signs are required for radioactive gases and liquids.

(C) When not in use, radioactive materials shall be kept in adequately shielded fire resistant containers of such design that the gamma radiation will not exceed 200 milliroentgens per hour or equivalent at any point of readily accessible surface.

(D) All storage, handling, and use must comply with the rules and regulations of the State Department of Health Services office of radiological safety.

(2) Ozone Generating Facilities. This subsection shall be effective immediately for all facilities. However, facilities which received an occupancy permit before January 1, 1991, may apply for partial or complete exemption from compliance. The city may approve in writing such exemption, at its discretion, for a period of time not to exceed three calendar years.

(A) This chapter applies to generators using corona discharge for ozone production, and to applications in which more than one ultraviolet (UV) generator are connected together. Single ultraviolet (UV) ozone generators for consumer use are exempt.

(B) Cabinets for outdoor use must meet National Electrical Manufacturers Association (NEMA) Standard 250 of Type 3R or better.

(C) Indoor ozone generators must be in an approved sprinklered cabinet vented to an outside safe area. Any discharge to the atmosphere must meet applicable standards. The city may approve a room to act as the secondary containment cabinet if there are adequate safeguards.

(D) The room containing ozone generating equipment is considered to be a hazard area. It shall contain a smoke detector.

(i) The room shall be built with one-hour fire rated separations.

(ii) One exit must be provided for each 500 square feet of floor space.

(iii) There shall be an ozone gas monitoring system which will sound a local alarm, provide a readily visible alarm, and shut down the generator in the event of a leak. It shall alarm to a central emergency control station.

(iv) Background ozone levels are not allowed to exceed the TLV as established by the ACGIH.

(E) Primary ozone piping shall be stainless steel.

(i) Ozone piping will be secondarily contained.

(ii) All ozone piping shall be impervious to ozone.

(iii) All ozone piping shall have the appropriate pressure rating for its use and have welded connections.

(iv) Primary ozone piping does not require secondary containment if the line is operated at negative pressure such that any failure of the pipe would result in ambient air being drawn into the pipe rather than released to the environment.

(F) All regulated ozone generating facilities shall be properly labeled and have an automatic shutdown system which is accessible from a central emergency control station and will operate under any of the following conditions:

(i) When there is a failure of the ventilation of the cabinet and/or room. The preferred method to monitor for an exhaust failure is by detection of a decrease in the exhaust air flow.

(ii) When there is no process demand; i.e., the process is shut down.

(iii) When the aqueous phase oxidation reduction potential is in excess of 1,200 millivolts (mv) or the dissolved ozone concentration exceeds two milligrams per liter (mg/L). The measurement is made in the process water as it is exposed to the atmosphere.

(iv) When the primary containment system is breached, unless there is an operating system which prevents the unsafe buildup of ozone.

(3) Extremely Toxic Gases. This subsection shall be effective immediately for all facilities. However, facilities which have received an occupancy permit before January 1, 1991, may apply for partial or complete exemption from compliance.

The city may approve in writing such exemption, at its discretion, for a period of time not to exceed three calendar years.

(A) Materials regulated under this subsection:

(i) Gases which are listed by EPA as acutely hazardous, gases classified as a Poison A by the United States Department of Transportation, and gases with a TLV of 10 parts per million or less, or equivalent as determined by the city, and are not specifically regulated under other sections of this chapter.

(ii) Materials meeting requirements above and in compressed gas cylinders and act as a gas upon release at ambient temperature and pressure.

(B) All piping and containment vessels shall be secondarily contained.

(i) Secondary containment shall be capable of directing a sudden release into a city-approved discharge abatement system.

(ii) Secondary containment shall be continuously monitored with an approved gas monitoring system.

(C) An automatic shut-off valve which is of a fail-safe-to-close design shall be provided on the system. It shall activate automatically under each of the following conditions:

(i) Gas detection;

(ii) Failure of primary power unless there is an automatic battery power carry-over to emergency power;

(iii) Seismic activation;

(iv) Failure of primary containment;

(v) Activation of automatic or manual fire alarm.

(D) A flow restricting overfill or flow-limiting device shall be installed except in those cases where the corrosive nature of the gas would preclude the installation and/or safe use.

(E) Piping and tubing shall have welded connections throughout unless an exhausted enclosure is provided.

Gases which are incompatible with ferrous piping may be installed in approved nonferrous piping with approved connections.

(F) Emergency power shall be provided for the following unless the facility demonstrates to the city’s satisfaction that it is not necessary to provide standby emergency power to reduce the risk to the community to an acceptable level:

(i) Exhaust ventilation;

(ii) Emergency abatement system;

(iii) Gas detection systems;

(iv) Emergency alarm systems;

(v) Temperature control systems;

(vi) Automatic shut-off valves.

(G) Tanks and cylinders intended for the purpose of dispensing and/or storage shall be provided with excess flow control valves marked with their maximum design flow rate except in those cases where the corrosive nature of the gas would preclude their installation and/or safe use.

(H) An approved continuous gas detection system shall be provided to detect the presence of gas at or below the permissible exposure limit. The detection system shall initiate a local alarm and an alarm at a remote location.

(I) An approved seismically activated valve shall be provided to automatically shut off regulated materials during significant seismic events.

(J) When regulated materials are transported through exit corridors there shall be a local manual alarm station at not more than 150-foot intervals and at each exit doorway throughout the transport route.

(K) Regulated gas systems shall be provided with an individually dedicated inert gas purge system.

(L) Storage of cylinders shall be within independently ventilated gas cabinets or exhaust enclosures without other occupancy or use.

(i) Such exhaust systems shall be designed to abate the accidental release of the total volume of regulated materials that may be contained.

(ii) Such exhaust systems shall be capable of diluting, adsorbing, absorbing, neutralizing or burning the entire contents of regulated material that may be stored within the enclosure and can be released within a five-minute period.

(M) Gas cabinets shall be compatible with the material to be contained within.

(i) They shall be operated at negative pressure in relation to the surrounding area.

(ii) They shall be provided with self-closing limited access ports or fire-rated windows for access to equipment controls.

(iii) The average velocity of ventilation at the face of access ports or windows shall be not less than 200 feet per minute (fpm) with a minimum of 150 fpm at any point of the access port or window.

(iv) They shall be connected to an exhaust system as specified in subsection (b)(3)(L)(ii) of this section.

(v) They shall be provided with self-closing doors.

(vi) They shall be constructed of not less than 12 gauge steel.

(N) Abatement systems or equivalents shall be utilized to process all exhaust ventilation of regulated materials.

(i) Abatement systems or equivalents shall reduce the maximum allowable concentration at the point of discharge to one-half IDLH or less.

(ii) Abatement systems or equivalents shall be designed to process the maximum worst case release possible.

(O) No regulated material may be within 75 feet of any air intake.

(4) Explosives.

(A) All explosive materials, including binary explosives, must be stored, handled and transported in compliance with all relevant regulations of the Department of the Treasury Federal Bureau of Alcohol, Tobacco, and Firearms.

(B) No magazine storage for explosive materials may be located closer to inhabited buildings, railway lines, or public highways than the maximum explosive force capacity of the largest quantity of stored material.

(5) Ammonia as a Refrigerant. This subsection shall be effective immediately for all facilities. However, facilities which received an occupancy permit before January 1, 1991, may apply for partial or complete exemption from compliance. The city may approve in writing such exemption, at its discretion, for a period of time not to exceed three calendar years.

(A) A facility with more than 1,000 pounds of ammonia must meet the standards or equivalents set forth in subsection (b)(5)(B) of this section as approved by the city.

(B) Building structure for all new facilities shall comply with the following:

(i) The construction of exterior walls shall be of noncombustible materials.

(ii) Engine room shall be constructed of noncombustible materials.

(iii) Engine room shall be sprinklered.

(iv) For all new facilities, an emergency ventilation system(s) shall be provided, which exhausts to the atmosphere through a water deluge system which can be operated from outside the structure and is easily accessible to emergency responders.

(v) Ammonia receiving units shall be located on the outside of the structure and secured from access by unauthorized personnel.

(C) Appropriate safety cutoffs and control valves shall be installed in an exterior location easily identified and accessible to emergency responders.

(D) All ammonia refrigeration systems shall have approved dual safety relief valves properly installed on all vessels, a remote control system for the king valve, and a remote automatic emergency control for ventilation and compressors easily accessible to emergency responders.

(E) All ammonia compressors must be positively identified through casing numbers and/or the manufacturer’s name plate and identification number.

(i) All ammonia compressors must be specifically designed for use with ammonia refrigerants and operated within design limitations.

(ii) Each ammonia compressor shall have automatically operated internal and external relief valves.

(iii) Multiple compressor plants’ common discharge shall have suction stop valve(s), discharge stop valve(s), and discharge check valve(s).

(iv) Each compressor shall be equipped with a high pressure and a low pressure cutoff switch, and a low differential oil pressure cutoff switch.

(v) No compressor shall be altered, modified, or repaired in such a manner that the integrity of the casing may be impacted unless it has been pressure-recertified by the manufacturer or the insurance underwriter.

(vi) All compressors shall be equipped with readily observable gauges to accurately indicate oil suction and discharge pressures.

(F) All ammonia vessels and heat exchangers over three cubic feet in internal refrigerant volume capacity shall be positively identified through the manufacturer’s name plate and identification number as required in the most recent edition of ANSI/II AR standards.

(i) They shall only be operated within their design limitations.

(ii) Each vessel and heat exchanger shall have appropriate valving as required in the most recent edition of ANSI/II AR standards.

(iii) If signs of surface corrosion appear, they shall be inspected for soundness by a qualified professional with expertise in the field.

(iv) Level indicators shall be installed on each vessel and heat exchanger to accurately reflect the refrigerant level within each unit. They shall be easily read and protected from accidental damage.

(G) Single or dual safety relief valves shall be provided on all vessels, heat exchangers, oil pots, oil stills, and elsewhere on refrigeration equipment wherever appropriate.

(i) Safety relief valves shall be replaced at regular intervals no greater than five years.

(ii) All safety relief valves protecting vessels shall be connected above any liquid level.

(iii) There shall be no stop valves located between a safety relief valve and the part(s) of the system that the valve is designed to protect. A dual relief valve and three-way valve manifold is an acceptable arrangement.

(iv) Safety relief valves shall be appropriately piped to an approved discharge pipe located above any adjacent structure.

(v) No relief valves shall be located in a refrigerated space unless adequate precautions have been taken to prevent the migration of moisture into the valve body and/or the relief vent line.

(H) Ammonia piping and accessories shall be installed as required in the most recent edition of ANSI/II AR standards.

(i) Refrigerant piping shall be coated with a rust preventative and routinely inspected for corrosion.

(ii) Signs of vapor barrier failure shall result in immediate replacement of the insulation and/or vapor barrier.

(iii) All ammonia piping shall have appropriate pipe markers to indicate use and flow direction.

(iv) All oil pots, oil stills, pumps, and evaporators, regardless of size, shall be fitted with a safety relief valve.

(v) All vessels containing liquid ammonia, which can be isolated by valves, shall be protected by safety valves vented either to the atmosphere or to system suction.

(vi) Accumulators or interstage coolers shall be equipped with high-level float switches which will sound an alarm when a level point beyond standards is reached and, where practical, shall cause the compressor(s) to shut down automatically when high levels of refrigerant are detected.

(vii) There shall be a sign in the engine room displaying:

a. Name and address of the installing/servicing contractor;

b. Average and maximum allowed quantities of refrigerant in the system; and

c. The field test pressures.

(viii) There shall be no ammonia cylinders, tank cars, or tank trucks connected to the system unless trained personnel are actually conducting a transfer of ammonia.

(ix) Ice formations that endanger refrigerant piping or other components are prohibited.

(x) Ammonia leaks of any size are prohibited. In the event of the discovery of a leak, it must be repaired as quickly as possible. In the event an ammonia leak is suspected, it must be immediately investigated and receive appropriate mitigation.

(xi) A safety shower and eyewash shall be available within 25 feet of the ammonia engine room.

(I) Unrefrigerated containers shall contain sufficient space to prevent them from being completely full of liquid at temperatures below 130 degrees F (54 degrees C).

(J) All refrigeration equipment shall be designed and operated to prevent the entrance of any liquid.

(K) All liquid ammonia containers shall have a manually operated pressure relief valve which is able to release vapor through an approved diffuser, able to be operated from an external location and easily accessible to emergency responders.

(L) All rooms enclosing containers of liquid ammonia shall have adequate ventilation to provide a minimum of 10 complete exchanges of room air with outside air, every hour. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12309.)

Article IV. Hazardous Materials Management Plan

8.35.220 Hazardous materials management plan (HMMP).

Each applicant for a permit pursuant to this chapter and as described in Article VIII shall submit a written plan, for approval by the city, to be known as a hazardous materials management plan (HMMP), which shall demonstrate the safe storage, transportation, use and handling of hazardous materials. The HMMP may be amended at any time with the consent of the city. The HMMP shall be a public record except as otherwise specified. For additional requirements, see Section 8.35.010(c) and (d). (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12400.)

8.35.230 Information to be submitted.

The hazardous materials management plan (HMMP) must be submitted for each facility handling hazardous materials in an amount specified in Section 8.35.250(a). The applicant may seek preliminary permit approval based on the plans for all facilities in accordance with Section 8.35.120 and the HMMP submittal. The information in this section is provided for purposes of ensuring the safe and secure management of hazardous materials as well as the protection and safety of emergency response personnel.

(a) Content of Standard Form HMMP.

(1) Facility Description.

(A) General Information. The HMMP shall contain the name and address of the facility and business phone number of applicant, the address and phone number of the company’s home office, the name and title and business phone number of the responsible official, number of employees, number of shifts and their hours of operation; the principal business activity; mailing address if different from above; the name and address of the property owner; SIC code; Dun and Bradstreet number, the name of the company’s fire policy insurance carrier, inspection contact and emergency contact(s) with 24-hour phone numbers; and the length of time the business has been in operation. The general information required under this section must be kept current. The city must be notified within 30 days of any changes in ownership, responsibilities, phone numbers and other information in the HMMP.

(B) Site Map. The HMMP shall contain a site map indicating the general facility description drawn at a legible scale on eight and one-half-inch by 11-inch paper(s). It shall show the location of all buildings and structures; chemical loading areas; indicate the north direction; scale; evacuation areas; access and egress points; parking lots; external and internal roads; storm and sewer drains; and it shall specify the uses of adjacent properties.

(C) Additional Site Information. Information related to the location of wells, floodplains, earthquake faults, surface water bodies, land uses for sensitive receptors (schools, hospitals, institutions, residential areas) within 1,000 feet of the facility boundaries is also required.

(D) Facility Storage Map. The HMMP shall contain a facility storage map drawn in a legible scale and presented on eight and one-half-inch by 11-inch paper(s).

The facility’s storage map shall indicate the location of each hazardous materials area, including all transfer, interior, exterior and underground facilities, as well as access to such 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 facility, the map shall contain information as prescribed below:

(i) Include a detailed floor plan drawn to scale which indicates the maximum quantity stored in each area.

(ii) For each hazardous material specified in Section 8.35.250(a), include the general chemical name, common/trade name, major constituents for mixtures, United Nations (UN) or North America (NA) number, CAS number, and physical state. Indicate the presence and quantity of each waste hazardous material within the facility.

(iii) For all acutely and/or extremely hazardous materials, including wastes stored in each facility, indicate the NFPA hazard class or classes and the respective quantity range within each facility.

(iv) For any amount of material that is pyrophoric, hypergolic, or a class three explosive, indicate the hazard classes, aggregate quantities and locations within each facility.

(v) For materials not regulated under this chapter, but regulated under the Uniform Fire Code, or for materials in facilities exempted by Section 8.35.740(a) or (b), the city may require some or all of the HMMP requirements to apply.

(2) Hazardous Materials Inventory Statement. The HMMP shall contain a hazardous materials inventory statement in accordance with Article V of this chapter.

(3) Hazardous Materials Handling. The HMMP shall contain a detailed description of the handling of hazardous materials, including empty containers, to demonstrate that such handling shall be conducted in a manner to prevent the accidental release of such material and is appropriately secondarily contained in accordance with Article III of this chapter.

(4) Separation of Materials. The HMMP shall contain a description of the methods utilized to ensure separation and protection of 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.

(5) Monitoring Program. The HMMP shall contain an appropriate description of the location, type, manufacturer specifications (including sensitivity, calibration, testing procedures and intervals) and suitability of monitoring methods to be used in each facility with hazardous materials.

(6) Security Precautions. The HMMP shall contain a description of the security precautions which will be utilized to prevent the unknowing or unauthorized entry of persons or animals into the storage facilities.

(7) Hazard Labeling and Warning Signs. The HMMP shall contain a plan to provide warning markings on containers, storage areas, storage structures, surrounding fences, gates, and accessways, in a manner acceptable to the city.

(8) Facility Inspection.

(A) Inspection and Record Keeping. The HMMP shall contain a schedule and procedures in accordance with Article VII of this chapter for inspecting each facility and its related monitoring, safety, and emergency equipment, security devices, operating and structural equipment. The HMMP shall contain a written inspection procedure acceptable to the city for inspecting the facility for malfunctions and deterioration, operators’ errors, poor housekeeping practices, and unauthorized discharges of hazardous materials. Reporting of unauthorized releases shall be in accordance with Article VI of this chapter.

These inspections must be scheduled at appropriate frequencies and must be recorded in an authorized checksheet or log to be maintained for three years from the date of inspection.

(B) The HMMP shall contain an inspection checksheet or log designed to be used in conjunction with routine inspections. The checksheet or log shall provide for the recording of the date and time of inspection, the date and time of any corrective action taken, the name of the inspector, and the counter signature of the designated safety manager for the facility or the responsible official as designated in the HMMP.

(9) Employee Training. The HMMP shall contain a summary of the applicant’s employee training program designed to be appropriate to the types and quantities of hazardous materials on site. Training must prepare employees to safely handle hazardous materials on a daily basis and during emergencies, including:

(A) Instruction in safe storage and handling of hazardous materials;

(B) Instruction in emergency procedures for leaks, spills, evacuations, fires or explosions, including shutdown of operations and notification of the proper authorities;

(D) Personal protective equipment.

(10) Emergency Equipment. The HMMP shall describe emergency equipment availability, testing, and maintenance to assure that it is adequate and appropriate for potential emergencies involving the hazardous materials.

(11) Contingency Plan. The HMMP shall contain a contingency plan which describes the procedures which facility personnel must take in response to fires, seismic events, explosions, or any unauthorized discharge of a hazardous material.

The HMMP shall have simplified emergency procedures to be provided to each employee who is, or who may be, exposed to hazardous materials and posted in conspicuous locations where the regulated hazardous materials are handled.

If the permittee or permit applicant has already prepared an approved contingency plan in accordance with California Department of Health Service and/or federal regulations, that plan, or relevant portions thereof, may be submitted. The contingency plan must include the name, business address and emergency telephone number of the primary emergency response person and an alternate, the list of emergency equipment, an evacuation plan, and a list of emergency assistance numbers to be called.

(12) Closure Plan. The HMMP shall contain a closure plan which describes procedures for terminating the handling of hazardous materials in each facility in a manner that:

(A) Eliminates the need for further maintenance;

(B) Controls, to the extent possible, any threat to public health or safety or to the environment from residual hazardous materials in the facility which have not been eliminated; and

(C) Demonstrates that hazardous materials that were in the facility will be removed, disposed, neutralized, or reused in an appropriate manner.

(13) Access to HMMP. Each facility must have a complete copy of their HMMP on site and readily available to employees, emergency response personnel and regulatory personnel.

(14) Responsible Officers. All HMMP must be signed by a responsible officer of the company and dated as to submittal.

(15) The HMMP shall provide a full right of entry, authorizing the city manager and his/her designee to enter the permittee’s or applicant’s premises at any reasonable time for the purpose of inspection, photographing, videotaping, sampling, interviewing employees and other concerned parties, as well as other activities whose purpose is to investigate and/or document the record, an activity, or nonaction.

(b) Variations in Submittals.

(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 by the city manager or his/her designee where such information is not reasonably necessary to meet the intent of this chapter.

(1) The HMMP shall be updated at least annually and within 30 days of any significant change involving a hazardous materials facility or whenever there is an unplanned release of hazardous materials.

(2) The contingency plan must be reviewed and amended as soon as is reasonable, but in no case more than 30 days after:

(A) Applicable regulations are revised;

(B) The plan fails in an emergency;

Article V. Hazardous Materials Inventory

8.35.240 Hazardous materials inventory statement.

A hazardous materials inventory statement (HMIS) shall be filed with the city as part of a complete HMMP. Any person, firm, or corporation which handles any hazardous material specified in Section 8.35.250(a) is required to file an HMIS. Such person, firm or corporation shall amend the HMIS within 30 days of a hazardous material not listed thereon but required to be listed by Section 8.35.250(a) or of any significant increase beyond the maximum quantity indicated on the approved HMIS. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12500.)

8.35.250 Information required.

(a) Information shall be included in the HMIS for each hazardous material in a facility (aggregated over all such material in one or more facilities) unless the aggregate quantity throughout the facility is less than 55 gallons of liquid, 500 pounds of solids, or 200 cubic feet of compressed gas (measured at STP) and is not an acutely hazardous material or covered under a specific section of this chapter or designated a chemical of concern by the city. (See Section 8.35.040(30).)

(b) The information in the HMIS shall include for each regulated chemical either:

(1) (A) The general chemical name, common/trade name, CAS number, physical state, major constituents for mixtures, the manufacturer, United Nations (UN) or North American (NA) number, if available, the hazard class or classes, the four-digit identification number listed in the DOT Emergency Response Guidebook; and

(B) The material safety data sheet (MSDS) for each chemical must be attached; and

(2) A copy of a department of health services manifest for each waste or its equivalent, the hazard class or classes and an estimate of the annual quantity produced.

(c) In addition, the HMIS shall state the maximum and average daily quantities at each facility of each hazardous material specified in subsection (a) of this section and indicate if it is an acutely hazardous material.

(d) Where a claim for trade secret protection is made for any hazardous material pursuant to Section 8.35.270, the HMIS to be publicly disclosed shall indicate the number of materials claimed to be trade secrets. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12501.)

8.35.260 Public records.

The HMIS is a public record except for those materials designated for trade secret protection pursuant to Section 8.35.270. Any request for a public record hereunder shall be submitted in writing to the city. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12502.)

8.35.270 Trade secrets.

(a) The city shall protect from unauthorized disclosure any and all trade secret information which comes into the city’s possession through written documents or information furnished by permittee or permit applicant as required under this chapter; provided, that:

(1) Such claimed trade secret(s) is submitted in writing to the city; and

(2) The trade secret information sought to be protected is submitted to the city on a separate form or forms on colored paper, clearly and conspicuously marked or labeled as containing trade secret information; and

(3) Said form or forms containing the trade secret information is submitted only to the city; and

(4) Accompanying each item of information for which a claim of trade secret is asserted, a declaration under penalty of perjury, signed by the permittee or permit applicant, supporting the asserted trade secret status.

(b) Any other provision of this section to the contrary notwithstanding, there shall be no criminal or civil liability for disclosure of the identity of any trade secret material where there has been any unauthorized discharge related to such trade secret material or where such disclosure arises out of any official emergency response relating to the facility(s) by public safety personnel of the city, or is requested by a licensed physician who certifies in writing that the information is necessary for the medical treatment of a patient or patients. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12503.)

Article VI. Responsibility

8.35.280 Reporting of discharges.

As soon as any person in charge of a hazardous materials facility or responsible for emergency response for a facility has knowledge of any confirmed or unconfirmed unauthorized discharge of a hazardous material, such person shall take all necessary steps to ensure the discovery, containment and clean-up of such discharge. They shall notify the appropriate agencies of the occurrence, as required. All actions must be taken in a timely manner.

(a) Any person in charge of a facility or responsible for emergency response for a 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 city if such discharge presents a threat or imminent danger to the environment, public health, and safety.

(b) Confirmed Unauthorized Discharge.

(1) 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 release or emission of a hazardous material which meets all of the following criteria:

(A) The release is from primary containment to secondary containment or to an aboveground surface capable of containing the discharge until clean-up of the hazardous material is completed;

(B) The permittee is able to adequately clean up the liquid or solid discharge before it escapes from such secondary containment or such aboveground surface, but if the clean-up requires more than eight hours, it becomes a reportable discharge in accordance with subsection (b)(2) of this section; and

(C) There is no significant increase in the hazard of fire or explosion, nor is there any production of a flammable or poisonous gas, nor is there any significant deterioration of such secondary containment or aboveground surface, nor is there any significant increase of risk to people or the environment.

(2) Reportable Unauthorized Discharge. Any other unauthorized discharge which is not covered under subsection (a) of this section, and which is determined not to be only recordable under subsection (b)(1) of this section, must be reported to the city immediately. The reporting party shall provide information to the city relating to the ability of permittee to contain and dispose of the hazardous material, the estimated time it will take to complete containment and disposal, and the degree of hazard created. The city may verify that the hazardous material is being contained and appropriately disposed.

The city, at any time upon a determination that permittee is not adequately containing and disposing of such material, shall have the power and authority to undertake and direct an emergency response in order to protect the public health and/or safety. Any such emergency response will be governed by the procedures set forth in Section 8.35.290 and Article X of this chapter.

(3) Losses aboveground within secondary containment that are less than one percent of the reportable quantities specified in 40 Code of Federal Regulations Part 302, and are cleaned up adequately, are exempted from this section.

(1) Indication of Loss in Facility Records. Whenever a material balance or other information indicates a loss of hazardous material from a facility without secondary containment, or a gas, and no unauthorized discharge has been confirmed by other means, permittee shall have 48 hours 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 time, to determine that there has been no unauthorized discharge, an unauthorized discharge is deemed confirmed and permittee shall proceed in accordance with subsection (b) of this section.

Whenever a material balance or other record indicates a statistically significant loss of hazardous materials from an underground tank with secondary containment, or an aboveground facility, the secondary containment must be monitored to confirm or refute the indication of an actual unauthorized discharge. If there is evidence of an unauthorized discharge, it must be reported in accordance with subsection (b) of this section.

(2) 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 48 hours 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 time period that there has been no unauthorized discharge, an unauthorized discharge is deemed confirmed and permittee shall proceed in accordance with subsection (b) of this section. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12600.)

8.35.290 Responsibility.

Any person, firm or corporation responsible for a hazardous material facility, or property owner, shall institute and complete all actions necessary to remedy the effect of any unauthorized discharge, whether sudden or gradual. The city shall undertake actions to remedy the effects of such unauthorized discharge if it determines that it is reasonably necessary under the circumstances for the city to do so. The responsible party and/or property owner shall be liable to reimburse to the city all costs incurred by the city in remedying the effects of such unauthorized discharge including overhead and administration costs.

This responsibility is not conditioned upon the evidence of willfulness or negligence of the property owner or the party handling the hazardous material(s) in causing or allowing such discharge. Any responsible party who undertakes actions to remedy the effects of unauthorized discharges shall not be barred by this chapter from seeking to recover appropriate costs and expenditures from other responsible parties. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12601.)

Article VII. Inspections and Records

8.35.300 Inspection by city.

The city may conduct inspection, at its discretion, for the purpose of ascertaining compliance with this chapter and may require correction of any conditions which would constitute any violation of this chapter or of any other statute, code, rule or regulation affecting the handling of hazardous materials or protection of the environment.

(a) Inspection by Consent. Whenever necessary for the purpose of investigating or enforcing the provisions of this chapter, or whenever an enforcement officer has reason to believe that there exists in any structure or upon any premises a condition which constitutes a violation of this chapter, said officer may enter such structure or premises at any time to inspect the same, or to perform any duty imposed upon said officer by law with the consent of the owner or the consent of a responsible person in possession of the structure or premises. The right of entry provided in the hazardous materials management plan is deemed consent for inspection.

(b) Emergency Inspection. In any circumstance where there appears an immediate threat to the public health or safety, an enforcement officer may enter any structure or premises without the consent of any person or court process.

(c) Open Space Inspection. In any circumstance when it is necessary for the purpose of investigating or enforcing the provisions of this chapter, an enforcement officer may enter open space areas without forcing entry. Said officer may enter such premises at any time to inspect the same, or to perform any duty imposed by law.

(d) Inspection Warrant Procedure. In the absence of an emergency, open space circumstance or consent by the owner or responsible person, the enforcement officer shall obtain an inspection warrant as provided in Cal. Civ. Proc. Code § 1822.51.

(e) Inspection Procedure. During all inspections as provided herein, the officer may take any pictures, videotape, audiotape or samples deemed necessary to aid in the pursuit of the inquiry or in the recordation of the activities on site and shall take statements of witnesses and persons on the premises. While executing the duties prescribed in this chapter an enforcement officer shall not intrude on the reasonable privacy expectation of any person.

(f) Inspections by City – Discretionary. All inspections specified herein shall be at the discretion of the city and nothing in this chapter shall be construed as requiring the city to conduct any such inspection, nor shall any actual inspection made imply a duty to conduct any other inspection. Furthermore, nothing in this chapter shall be construed to hold the city or any officer, employee or representative of the city responsible for any damage to persons or property by reason of making an inadequate or negligent inspection or by reason of any failure to make an inspection or reinspection. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12700.)

8.35.310 Inspections by permittee.

The permittee is required to conduct self-monitoring inspections of its own facilities and to maintain logs or file reports in accordance with its hazardous materials management plan. The inspector conducting such self-monitoring inspections shall be qualified to conduct such inspections. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12701.)

8.35.320 Special inspections.

In addition to the inspections specified in Sections 8.35.300 and 8.35.310, when unique and/or complex technical situations are involved, the city may require the employment of special inspectors to conduct an audit or assessment of permittee’s facility to make a hazardous material evaluation and to determine compliance with the provisions of this chapter and other statutes, codes, rules or regulations affecting the handling of hazardous materials.

(a) The special inspector shall be a qualified person or firm who shall demonstrate his/her expertise to the satisfaction of the city.

(b) The special inspection shall be limited to the area of concern specified by the city.

(c) The permittee shall have 10 working days after receiving written notification from the city to appeal the special inspector requirement. If the appeal is denied, the permittee shall have 30 days from the date of denial to arrange for the inspection.

(d) The special inspection report shall include an evaluation of the facility/facilities and recommendations consistent with the provisions of this chapter, where appropriate. A copy of the report shall be filed with the city at the same time that it is submitted to the permittee.

(e) The permittee shall, within 30 days of said report, file with the city a plan to implement all recommendations, or shall demonstrate to the satisfaction of the city why such recommendations shall not be implemented.

(f) All expenses related to a special inspection will be paid by the permittee, with no cost to the city. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12702.)

8.35.330 Substitute inspections.

An inspection by an employee of any other public agency charged with the responsibility for hazardous material management may be deemed by the city as a substitute for any requirement in Sections 8.35.300, 8.35.310 and 8.35.320. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12703.)

8.35.340 Maintenance of records.

All records required by this chapter shall be maintained by the permittee for a period not less than three years. Said records shall be made available to the city for review upon reasonable notice. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12704.)

Article VIII. Application for Permit

8.35.350 Permit.

Any person, firm, or corporation which handles, uses, or stores any hazardous material shall obtain and keep current a hazardous materials permit issued pursuant to this chapter. One such permit shall be issued for a single facility.

Additional approvals shall be obtained for any facility thereafter connected, installed, constructed, or repaired, as required by Section 8.35.170, substantially modified, replaced, closed, or removed, or for any change or addition in hazardous materials handling not in accordance with the prior approval for types of materials, hazard classes, or quantities involved. When requested, applicants shall also submit evidence of financial responsibility for taking corrective action and compensating third parties for damages from releases of hazardous materials as required by Cal. Health & Safety Code § 25292.2. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12800.)

8.35.360 Application for permit.

Application for a new, amended, or renewed permit or an additional approval shall be made to the city on the form provided. In addition to the information required by such form, applicant shall submit the hazardous materials management plan required by Section 8.35.220, the State Water Resources Control Board form required by the California Health and Safety Code, and construction plans, if any, in conformity with Sections 8.35.120 and 8.35.210. Applicant shall specify the quantity limit requested to be permitted for each facility. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12801.)

8.35.370 Investigation.

The city may make such investigations of the applicant and the proposed facility or activity as the city deems necessary to carry out the purposes of this chapter. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12802.)

8.35.380 Approval of permit.

A permit shall not be approved until the city is satisfied that the facility adequately conforms to all provisions of this chapter and relevant state and federal codes and regulations. Such conformance can be based on substitutions for specific requirements if such substitutes are found to provide at least equivalent environmental, health and safety protection.

A list of new permits shall be posted at the city government building. Within 10 working days of such posting, a permit may be appealed to the city manager, in writing, setting forth with particularity the grounds for appeals. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12803.)

8.35.390 Temporary permit.

If the city finds that the applicant’s proposal does not completely conform to the provisions of this chapter, the city may approve a temporary permit not to exceed 90 days in duration, subject to conditions to be imposed by the city, when such a temporary permit is feasible and does not appear to be detrimental to the public interest. Notwithstanding the above, a temporary permit for hazardous materials facilities shall conform to the express provisions of Article III of this chapter at all times. The applicant shall be informed in writing of the actions necessary to enable the issuance of a full-term permit. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12804.)

8.35.400 Issuance of permits.

(a) Issuance. Upon the approval of a temporary or full-term permit and upon the payment of any applicable fee, the city 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) The date the permit is effective;

(4) The date of expiration;

(5) When applicable, a designation that the permit is temporary; and

(6) Any special conditions of the permit.

(b) Issuance of Conditional Permit. Subsequent to the city’s review substantiating evidence that all conditions required to be fulfilled prior to the issuance of the permit have been satisfied, the city manager or his/her designee shall issue the necessary permit as set forth in subsection (a) of this section.

(c) Records. The city shall keep a record of all permits issued and all conditions attached thereto. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12805.)

8.35.410 Additional approvals.

(a) The procedures set forth in this chapter for an application for a permit shall also apply to an application for an additional approval as required by Section 8.35.350. Each additional approval shall be accompanied by an appropriate amendment to the HMMP.

(b) If the additional approval request is for closure of a facility, permittee shall apply for approval to close such facility 30 days prior to the termination of management of hazardous materials at the facility. Such closure shall be in accordance with the facility closure plan which meets the requirements of Section 8.35.230(a)(12), unless an alteration or change in the facility closure plan is necessary, in which case the application for closure shall contain such change(s) or alteration(s). This 30-day period may be waived by the city if there are special circumstances requiring such waiver. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12806.)

8.35.420 Term.

A permit may be issued for a term of one year, as specified in this chapter, excepting temporary permits which may be issued for any period of time not to exceed 90 days. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12807.)

8.35.430 Renewal.

Every application for the renewal of a permit or extension of a temporary permit shall be made at least 30 days prior to the expiration date of such permit. If a timely application for renewal has been submitted, the permit shall remain in effect until the city has made its determination pursuant to Section 8.35.440 and any appeal pursuant to Article IX of this chapter has been exhausted unless the city manager determines there is a significant risk to the environment or public welfare. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12808.)

8.35.440 Fees.

The city shall establish fees sufficient to recover its costs in administering this chapter and no application shall be approved unless and until the fees have been paid.

(a) Delinquent Fees. All permit fees delinquent for 30 days or more shall be subject to an additional charge to be determined by the city 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. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12809.)

8.35.450 Transfer of permit.

No permit may be transferred to new owners or new operators of a facility or a property. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12810.)

Article IX. Denial

8.35.460 Denial of application.

If the city has cause to deny the application and determines that it would not be feasible or in the public interest to approve a permit, then the officer shall deny the application. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12900.)

8.35.470 Grounds for denial.

A permit shall be denied if the applicant fails to demonstrate adequate conformity to all applicable 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 of this chapter. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12901.)

8.35.480 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. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12902.)

8.35.490 Appeal.

(a) Within 30 days after the date of deposit of the decision in the mail in accordance with Section 8.35.400(a), the applicant may appeal the denial in writing to the city manager, setting forth with particularity the factual and legal grounds for the appeal.

(b) Within 10 days after the date of posting in accordance with Section 8.35.380, a permit may be appealed to the city manager, in writing, setting forth with particularity the factual and legal grounds for the appeal. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12903.)

8.35.500 Hearing on appeal.

The city manager shall set a time and place for the hearing on the appeal as provided in Article XI of this chapter and shall notify the applicant in writing of such date and time not later than 30 working days from the date the appeal was received by the city manager. The hearing shall be conducted within 45 days from the date the appeal was received by the city manager. In any hearing under this section, the applicant shall bear the burden of proof to establish entitlement to the permit requested by a preponderance of the evidence. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12904.)

8.35.510 Disposition of appeal.

(a) After the hearing on the appeal, the city hearing 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 temporary permit as provided in Section 8.35.390, or may approve the application with or without conditions.

(b) The decision of the city hearing officer shall be the final administrative determination and is subject to judicial review.

(c) In any appeal hearing under this article, the city hearing officer shall award all costs of the hearing and reasonable attorneys’ fees to the city whenever the city prevails. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12905.)

Article X. Remedial Action

8.35.520 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:

(a) Fraud, willful misrepresentation, or any inaccurate or false statement in applying for a new or renewed permit;

(b) Fraud, willful misrepresentation, or any inaccurate or false statement in any report required by this chapter;

(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;

(e) Failure to abide by the remedial action imposed by the city; or

(f) Failure to appropriately characterize and remediate, in a timely manner, any known or suspected environmental contamination on site. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121000.)

8.35.530 Notice of noncompliance.

Unless city finds that an immediate suspension under Section 8.35.550 is necessary to protect the public health or safety from imminent danger, the city shall, prior to taking remedial action, issue a notice of noncompliance for failure to comply with the provisions of this chapter for any permit conditions or any provisions of the hazardous materials management plan. Such notice shall be sent by certified mail to permittee and such notice may be copied by first-class mail to other parties interested in the facility. If the noncompliance is not abated, corrected, or rectified within the time specified, remedial action may be taken. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121001.)

8.35.540 Notice and hearing.

(a) A notice of hearing shall be sent to the permittee by the city, 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 mailed at least 15 calendar days prior to the hearing date.

(b) The hearing shall be held before a city hearing officer following the procedures set forth in Article XI of this chapter. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121002.)

8.35.550 Suspension prior to hearing.

Whenever the city finds that suspension of a permit prior to a hearing for remedial action is necessary to protect the environment, public health or safety from imminent danger, the city may immediately suspend any permit pending the hearing. The city shall make a reasonable effort to immediately notify the permittee of such suspension by personally serving a written notice of the suspension on the permittee. Permittee shall have the opportunity for a preliminary hearing with regard to such prehearing suspension within three working days of receiving written notice of such suspension.

A request for a preliminary hearing shall be directed to the city manager. The city manager shall arrange a preliminary hearing within 10 days of receiving the request. Following the preliminary hearing, the permit may be reinstated by the city manager at his or her sole discretion pending the full remedial action hearing. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121003.)

8.35.560 Remedial action.

If the city hearing officer finds that cause exists for remedial action, he or she shall impose one or more of the following:

(a) A warning;

(b) An order to correct the particular noncompliance specified in the notice issued pursuant to Section 8.35.530;

(d) Suspension of the permit for the facility for a specified period not to exceed six months;

(e) Modification or addition of conditions to the permit;

(f) Revocation of the permit with no reapplication permitted for a specified period, not to exceed five years.

In a remedial action hearing under this article, the city shall have the burden of proof to establish good cause for the remedial action by a preponderance of the evidence.

If the grounds for remedial action are based on Section 8.35.010, and if such grounds are limited to one facility, the remedial action taken shall not be limited to that facility, but may apply to all facilities in which the responsible party has a significant interest.

The city hearing officer shall award all costs of the hearing and reasonable attorneys’ fees to the city whenever the city prevails in a remedial action hearing under this article. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121004.)

8.35.570 Transmittal of decision.

Within 10 working days of the hearing, the city hearing 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 city hearing officer shall be the final administrative determination and is subject to judicial review. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121005.)

8.35.580 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 or any proceeding against such permittee. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121006.)

8.35.590 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. The permittee shall immediately cease the handling, use, or storage of hazardous materials at the unpermitted site. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121007.)

Article XI. Hearing Procedure

8.35.600 Hearing rules.

(a) The city manager, or his/her designee, shall have the sole discretion to select a city hearing officer for all hearings under this chapter. The city manager or his/her designee shall schedule all hearings in accordance with this chapter and the convenience of parties, witnesses and counsel; shall provide written notice of the date, time and location of hearings; and shall arrange for the issuance of subpoenas by the city clerk’s office.

(b) Subpoenas and subpoenas duces tecum shall be issued at the request of the city hearing officer or any party to a hearing under this chapter. Subpoenas shall be issued and attested by the city clerk in the name of the city. A subpoena duces tecum shall issue only upon the filing with the city clerk of an affidavit showing good cause for the production of the matters and things described in the subpoena, specifying the exact matters and things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the proceeding, and stating that the witness has the desired matters or things in the witness’ possession or under the witness’ control. A copy of such affidavit shall be served with the subpoena.

(c) Any subpoena requiring that a witness personally appear to give testimony, issued pursuant to the provisions of this chapter, must be served in person at least five days before the hearing for which the attendance is sought. Any subpoena duces tecum issued pursuant to the provisions of this chapter requiring the production of documents only may be served by first-class mail, and must be served at least 20 days before the date set forth on the face of the subpoena. Time limits set forth herein may be extended by the city hearing officer for good cause.

(d) In any hearing under this chapter, all parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues, to be represented by counsel, and to confront and cross-examine any witnesses against them. Any hearing under this chapter may be continued by the person conducting the hearing for a reasonable time for the convenience of a party or a witness. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121100.)

8.35.610 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. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121101.)

Article XII. Enforcement

8.35.620 Criminal penalties.

Any person who shall violate any of the provisions of this chapter or fail to comply therewith, or who shall violate or fail to comply with any order made thereunder, shall severally, for each and every violation and noncompliance respectively, be guilty of an infraction or a misdemeanor at the discretion of the enforcement officer and punished pursuant to Sections 1.15.010 through 1.15.060.

The imposition of one penalty for any violation shall not excuse the violation nor permit it to continue; and all such persons so penalized shall be required to correct or remedy such violations or defects within a reasonable time. When not otherwise specified, each day that prohibited conditions are maintained shall constitute a separate offense.

The application of the above penalty shall not be held to prevent the enforced removal of prohibited conditions. (Ord. 1946 § 6, 11-27-90; Ord. 2004 § 9, 5-12-92. 1990 Code § 3-121200.)

8.35.630 Civil penalties.

Any person, firm or corporation who intentionally or negligently violates any provision of this chapter, or fails to comply with any order issued thereunder, shall be liable for a civil penalty not to exceed $1,000 per day for each violation which shall be assessed and recovered in a civil action brought in the name of the people by the city attorney. In determining the penalty, the court shall consider all 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;

(d) The nature and frequency of past violations;

(e) The permittee’s record of maintenance;

(f) Corrective action, if any, taken by the permittee.

In any civil action, including mandamus or other equitable proceedings, brought pursuant to this chapter in which the city prevails, the court shall award all costs of investigation and preparation for trial, the costs of trial, reasonable expenses including overhead and administrative costs incurred in prosecuting or defending the action and reasonable attorneys’ fees to the city. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121201.)

8.35.640 Remedies not exclusive.

Remedies under this chapter are in addition to and do not supersede or limit any and all other remedies, civil or criminal. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121202.)

8.35.650 Authorization to cite violators.

Pursuant to the authority of Cal. Penal Code § 836.5, the enforcement officer is hereby authorized to cite or arrest any person without a warrant whenever there is reasonable cause to believe that the person to be cited or arrested has committed a misdemeanor in her or his presence which is a violation of this chapter. (Ord. 1946 § 6, 11-27-90; Ord. 2004 § 9, 5-12-92. 1990 Code § 3-121203.)

8.35.660 Authorization to issue citation in lieu of arrest for misdemeanors.

Pursuant to the authority of Cal. Penal Code § 836.5, the enforcement officer is hereby authorized to cite and release without arrest any misdemeanor violator of this chapter in accordance with the procedures of Cal. Penal Code § 853.6. (Ord. 1946 § 6, 11-27-90; Ord. 2004 § 9, 5-12-92. 1990 Code § 3-121204.)

8.35.670 Authorization to issue citations in lieu of arrest for infractions.

Pursuant to the authority of Cal. Penal Code § 836.5, the enforcement officer is hereby authorized to cite and release without arrest any infraction violator of this chapter in accordance with the procedures of Cal. Penal Code § 853.5. (Ord. 1946 § 6, 11-27-90; Ord. 2004 § 9, 5-12-92. 1990 Code § 3-121205.)

8.35.680 Assessment of costs – Lien on property.

All costs and attorneys’ fees imposed pursuant to this chapter are declared to be costs of nuisance abatement and shall be assessed by the hearing officer against the property where the violation of this chapter occurred. Such costs and attorneys’ fees, if not paid within 30 days after order by the hearing officer, shall constitute a special assessment against the property and shall be a lien on such property for the amount thereof from the time of recordation of the notice of lien. The lien shall continue until the assessment is paid or until it is discharged of record. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121206.)

8.35.690 Notice of lien – Manner of collection.

From and after the date of recording of the notice of lien, all persons shall be deemed to have notice of the contents thereof. The notice of lien shall be delivered by the city finance director to the county auditor, who shall enter the amount thereof on the county assessment book opposite the description of the particular property. The amount shall be collected together with all other taxes thereon against the property. The notice of lien shall be delivered to the county auditor before the date fixed by law for the delivery of the assessment roll to the county board of equalization. Thereafter, the amount of the lien shall be collected at the same time and in the same manner as ordinary county taxes are collected and shall be subject to the same penalties and interest and to the same procedure under foreclosure and sale in case of delinquency as provided for ordinary county taxes. All laws applicable to the levy, collection, and enforcement of county taxes are hereby made applicable to such special assessment taxes. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121207.)

8.35.700 Costs and attorneys’ fees a debt.

All costs and attorneys’ fees imposed pursuant to the provisions of this chapter shall be deemed a debt to the city. An action may be commenced in the name of the city in any court of competent jurisdiction for the amount of such debt. The time for commencement of any such action shall be within three years from the date of the award imposed pursuant to the provisions of this chapter. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121208.)

Article XIII. Miscellaneous

8.35.710 Disclaimer of liability.

The degree of protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. The standards set forth herein are minimum standards and this chapter does not imply that compliance will ensure that there will be no unauthorized discharge of hazardous material. This chapter shall not create liability on the part of the city, any officer or employee thereof for any damages that result from reliance with this chapter or any administrative decision lawfully made thereunder. All persons handling, storing, using, processing, and disposing of hazardous materials within the city 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 there is no unauthorized discharge of hazardous materials. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121300.)

8.35.720 Report to the State Water Resources Control Board.

The city may require its permit applicants and permittees to fill out, in addition to forms required for the city’s own purposes under this chapter, standardized forms prepared by the State Water Resources Control Board as specified by Cal. Health & Safety Code § 25283.2.

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 the city blank, except to indicate the words “trade secret,” and the permit applicant or permittee shall thereafter, within 10 days of submitting the incomplete form to the city, submit the completed form including the trade secret information directly to the State Water Resources Control Board. The city shall have no obligation to protect as a trade secret any information which is furnished to it on these standardized forms. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121301.)

8.35.730 Duties are discretionary.

Subject to the limitations of due process, notwithstanding any other provision of this code, whenever the words “shall” or “must” are used in establishing a responsibility or duty of the city, its elected or appointed officers, employees, or agents, it is the legislative intent that such words establish a discretionary responsibility or duty requiring the exercise of judgment and discretion. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121302.)

8.35.740 Conflict with other laws.

Notwithstanding any other provisions of this chapter:

(a) A facility regulated by any state or federal agency will be exempt from any conflicting provision of this chapter.

(b) Whenever any provision of this chapter conflicts with the fire code as adopted by the city, the most strict provision shall prevail.

(c) The requirements of this chapter shall be interpreted so that compliance with this chapter shall also provide compliance with state requirements regulating the storage and management of hazardous materials, including those provisions of state law contained in Cal. Health & Safety Code Chapters 6 and 6.95. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121303.)