Chapter 8.20 CERTIFIED UNIFIED PROGRAM AGENCY (CUPA)

A. The purpose of this chapter is to implement within the Healdsburg fire department all hazardous materials and hazardous waste programs covered under Health and Safety Code Section 25404, et seq., “Unified Hazardous Waste and Hazardous Material Management Regulatory Program.” These programs include those programs described in subsection (C) of this section.

B. The Healdsburg fire department enforces the hazardous materials management plan requirements of the Uniform Fire Code, and Health and Safety Code programs for hazardous materials business plan, risk management and prevention plan, underground storage tanks, hazardous waste generator, on-site treatment of hazardous waste (authorized lower three tiers of the tiered permitting program), and aboveground storage tank – spill prevention, control and countermeasure plan. The purpose of this chapter is to bring all hazardous material and hazardous waste regulatory authority and compliance requirements within one chapter.

C. It is the intent of the City Council that the Healdsburg fire department, as the certified unified program agency (“CUPA”), shall regulate and enforce all applicable provisions of law, including:

1. Hazardous Waste Control – Health and Safety Code Section 25100, et seq., and California Code of Regulations, Title 22, Division 4.5.

2. Underground Storage of Hazardous Substances – Health and Safety Code Section 25280, et seq., and California Code of Regulations, Title 23, Division 3.

3. Aboveground Storage of Petroleum – Health and Safety Code Section 25270, et seq.

4. Hazardous Materials Release Response Plans and Inventory – Health and Safety Code Section 25500, et seq., and California Code of Regulations, Title 19

5. Hazardous Materials Management Plan – Health and Safety Code Section 18935, et seq., and California Code of Regulations Section 80.103.

6. All other provisions of law enforceable by CUPA, including any amendments to the statutes and regulations listed in subsections (C)(1) through (C)(5) of this section.

D. It is the intent of the CUPA to utilize all resources available to gain compliance which may include but is not limited to civil, criminal and administrative actions and penalties.

E. It is the intent of this chapter to be no less stringent than state law. (Ord. 984 § 1, 2001. Code 1964 § 7-11.)

8.20.020 Definitions.

In addition to the definitions incorporated by reference from the laws and regulations listed in HMC 8.20.010(C), the following definitions shall apply to all CUPA program elements under this chapter:

A. “Business” means the entities listed in Health and Safety Code Sections 25501(d) and 25501.4(a), including cities and special districts. All buildings, appurtenant structures, and surrounding land used by a business are part of the business.

B. “Certified unified program agency” or “CUPA” means the Healdsburg fire department.

C. “Environment” means navigable waters, waters of zones contiguous to any navigable waters, streams, creeks, rivers, ponds, pools, lakes, surface waters, ground waters, drinking water supplies, land surface, land subsurface strata, and ambient air.

D. “Hazardous material” or “hazardous waste” means any of the following:

1. Any material classified as a hazardous material or hazardous substance by any of the laws or regulations listed in HMC 8.20.010(C).

2. Any waste classified as a hazardous waste by any of the laws or regulations listed in HMC 8.20.010(C).

3. Any material or waste designated as hazardous for the purposes of this chapter by the fire chief, upon a finding that the material or waste, because of its quantity, concentration or physical or chemical characteristics, poses a significant present or potential hazard to human health and safety or to the environment, if released.

E. “Hazardous materials business plan” (also referred to as “business plan”) shall mean the inventory of information required in HMC 8.20.070.

F. “Permitted” means that a business has completed and submitted the necessary permit forms and documentation, paid appropriate fees and is in reasonable compliance with conditions of applicable program elements.

G. “Person” means a natural person, any partnership, firm, trust, business, company, limited liability company, corporation, any association, whether or not incorporated and whether or not formed for profit, and governmental entities. “Person” includes, but is not limited to, the City of Healdsburg and any other city, any special district, any state and any department agency, instrumentality, or political subdivision of the state, intergovernmental bodies and agencies, and the United States and its agencies and instrumentalities, to the extent permitted by law.

H. “Year” means fiscal year beginning July 1st and ending June 30th. (Ord. 984 § 1, 2001. Code 1964 § 7-12.)

8.20.030 Certified unified program agency.

The CUPA shall administer and enforce hazardous materials and hazardous waste laws and regulations pursuant to HMC 8.20.010(C). (Ord. 984 § 1, 2001. Code 1964 § 7-13.)

8.20.040 Certified unified program agency permit required.

Any person intending to do or perform any of the following activities shall first apply for, pay appropriate fees to and obtain a permit from the CUPA, unless otherwise exempted by a provision of law or regulation listed in HMC 8.20.010(C) or by 8.20.060(D):

A. Store, handle or use hazardous materials, or generate hazardous wastes, or operate underground tanks for storage of hazardous substances, either separately or in combination.

B. Treat hazardous waste on-site under either the permit-by-rule tier, conditional authorized tier, or conditional exempt tier, unless such tiered permitting authority is under the jurisdiction of the California Department of Toxic Substances Control.

C. Construct, install, repair, modify, upgrade, temporarily close, remove or abandon in place any underground storage tank system or any part of the system.

D. Permanently remove a hazardous materials storage or use premises from service.

E. Permanently remove subsurface hazardous material contamination.

F. Any other activity, use, storage, or operation as may be deemed appropriate by the fire chief may be included as part of the consolidated CUPA permit issued to a person/business.

For any of the activities identified in subsections (B), (C), (D) or (E) of this section, installation plans, work plans and site safety and health plans may be required by the CUPA to be submitted for approval as part of the application for permit. A permit issued for the activities identified in subsections (C), (D) or (E) of this section shall be valid for six months from the date of issuance. For any permit issued pursuant to subsection (F) of this section, the date of expiration shall be determined by the CUPA at the time the permit is issued. (Ord. 984 § 1, 2001. Code 1964 § 7-14.)

8.20.050 Application for a Certified Unified Program Agency permit.

A. Application for a new, amended or renewed permit or an additional approval shall be made to the CUPA on a form provided by the CUPA.

B. A permit shall not be approved until the CUPA is satisfied that the application and business plan conform to the provisions of this chapter and other applicable laws and regulations.

C. The hazardous materials business plan and all additional documents as identified below and in other department standards shall act as the permit application. The CUPA shall issue a permit to store, handle or use hazardous materials or hazardous waste or treat hazardous waste on-site, or operate an underground storage tank system when the following conditions have been met:

1. The business plan has been submitted by the applicant, reviewed by the CUPA, and found to be satisfactory;

2. For underground storage tanks at a place of business, forms provided by the CUPA must be completed and submitted by the applicant and reviewed by the CUPA and found to be satisfactory;

3. If hazardous wastes generated on-site are being treated on-site and the business falls under the permit-by-rule tier, conditional authorized tier or conditional exempt tier, DTSC form 1772, or other approved form, must be completed and submitted by the applicant and reviewed by the CUPA and found to be satisfactory, unless the tiered permitting authority is under the jurisdiction of the California Department of Toxic Substances Control;

4. The applicable fees, including the state surcharge, as referenced in HMC 8.20.180, have been received by the CUPA;

5. It appears that the applicable hazardous materials and hazardous waste requirements and the requirements of this chapter will be met by the applicant.

D. A permit to store, handle or use a hazardous material or hazardous waste or to treat hazardous waste on-site, or to operate an underground storage tank system is not transferable to another person, business or physical location.

E. A permit issued pursuant to this chapter shall be posted at the permitted place of business. A copy of the approved hazardous materials business plan shall be maintained at the place of business. (Ord. 984 § 1, 2001. Code 1964 § 7-15.)

8.20.060 Hazardous materials release response plans and inventory (business plan).

A. Any person or business who stores, handles or uses a hazardous material shall annually, or more frequently if required by the CUPA, submit a completed business plan as directed by the CUPA that includes the information described in California Health and Safety Code Section 25504 and California Code of Regulations, Title 19 Section 2620, et seq. If at the time of submittal there have been no changes in the types or quantities of hazardous materials stored, handled or used, the submittal may be in the form of a certification page to that effect.

B. An amendment to the business plan shall be filed within 30 days of any of the following changes to the business plan:

1. A change in the quantity of a previously reported hazardous material that exceeds an increase or decrease of 10 percent or more of a hazardous material;

2. The storage, handling or use of a previously undisclosed hazardous material;

3. Changes in any elements of the business plan required in HMC 8.20.070;

4. Additional reporting requirements as specified in HMC 8.20.080.

C. The amendment to the business plan required by subsection (B) of this section shall contain only new information or information about a specific change and shall not require the resubmittal of an entire business plan.

D. Any business engaged exclusively in the following types of operation shall be exempt from permit and disclosure:

1. Hazardous materials contained solely in a consumer product for direct distribution to, and use by, the general public are exempt from the business plan requirements unless the CUPA has found, and has provided notice to the business handling the product, that the handling of certain quantities of the product requires the submission of a business plan, or any portion thereof, in response to public health, safety, or environmental concerns;

2. Oxygen and nitrous oxide, ordinarily maintained by a physician, dentist, podiatrist, veterinarian, or pharmacist, at his or her office or place of business, stored at each office or place of business in quantities of not more than 1,000 cubic feet at standard temperature and pressure of each hazardous material;

3. Certain inert compressed gases stored in quantities of not more than 6,000 cubic feet at standard temperature and pressure: air, carbon dioxide, helium, neon, and nitrogen;

4. Compressed propane gas used solely for cooking, water heating and space heating in quantities of not more than 6,000 cubic feet at standard temperature and pressure.

E. The CUPA finds that exemptions set forth in subsection (D) of this section are appropriate because the hazardous materials and quantities exempted do not pose a present threat to human health or the environment, considering their intended use and chemical properties. (Ord. 984 § 1, 2001. Code 1964 § 7-16.)

8.20.070 Contents of hazardous materials business plans.

A. The hazardous materials business plan shall include all elements of the California Health and Safety Code Section 25504 and all elements of the California State Hazardous Material Inventory Form as specified in California Code of Regulations, Title 19 Section 2620, et seq.

B. The hazardous materials business plan shall also include:

1. Material safety data sheets (MSDS) for each hazardous material. However, MSDS to be submitted to the CUPA will be specified by the CUPA after review of the business plan inventory statement;

2. Names, addresses and telephone numbers of three persons capable of assisting the CUPA during an emergency, one of whom shall be designated as the primary emergency contact person;

3. A detailed site diagram drawn to scale on eight and one-half inch by 11 inch paper showing the general land use within 500 feet of all property lines and the location of wells, storm and sewer drains, open bodies of water, drainage canals, and flood plains;

4. Methods of protection of outside storage areas from the weather;

5. Total tonnage of hazardous waste generated per year and, if applicable, treated on-site, separated according to waste stream;

6. Other information as may be required by the CUPA;

7. A certification of the accuracy of submitted information.

C. The hazardous materials business plan shall be submitted on the forms designed by the CUPA and completed by the person or business.

D. Requirements for certain information in the business plan may be waived by the CUPA when such information is not reasonably necessary to meet the intent of this chapter. (Ord. 984 § 1, 2001. Code 1964 § 7-17.)

8.20.080 Additional reporting.

A. If required by law, or by the CUPA upon review of the business plan, a schedule and written inspection procedures for inspecting each hazardous materials or hazardous waste storage facility and its related monitoring, safety, and emergency equipment, security devices, operating and structural equipment for malfunctions and deterioration, operator’s errors, poor housekeeping practices, and unauthorized discharges of hazardous materials shall be submitted to the CUPA. These inspections must be scheduled and conducted by the person or business at appropriate frequencies either required by law or approved by the CUPA and must be recorded in an authorized check sheet or log to be maintained by the person or business on-site for three years from the date of inspection.

B. Additional reporting may be required pursuant to Health and Safety Code Section 25531, et seq., including any amendments thereto, regarding acutely hazardous materials, or other provisions of state law.

C. Additional reporting may be required by the United States Environmental Protection Agency.

D. Any additional information required under this section shall be subject to the provisions of HMC 8.20.050. (Ord. 984 § 1, 2001. Code 1964 § 7-18.)

8.20.090 Acutely hazardous materials registration.

A business that handles acutely hazardous materials (as defined in Health and Safety Code Section 25532(a)) in amounts specified in Section 25536(a) of the Health and Safety Code shall register with the CUPA using a form provided by the CUPA. The completed acutely hazardous materials registration form shall include, but not be limited to, the information required by Health and Safety Code Section 25533. (Ord. 984 § 1, 2001. Code 1964 § 7-19.)

8.20.100 Risk management plans.

A. A person or business that the CUPA determines to represent a significant likelihood of risk, pursuant to Health and Safety Code Section 25534, shall prepare and submit to the CUPA a risk management plan (RMP). The RMP shall be prepared as prescribed in Health and Safety Code Section 25500, et seq., Title 40, Code of Federal Regulations, Part 68 and any guidance documents adopted by the CUPA.

B. Any person or business shall submit to the CUPA, within one year of written request therefor, the RMP completed to the satisfaction of the CUPA. (Ord. 984 § 1, 2001. Code 1964 § 7-20.)

8.20.110 Underground storage tanks.

A. It shall be unlawful for any person or business to construct, install, modify, repair, upgrade, maintain, temporarily close, remove or abandon in place any underground storage tank, any associated piping or any monitoring methods without first obtaining a CUPA permit and approval from the CUPA. Permits are nontransferable and may be revoked for failure to conform to the requirements of this chapter.

B. The owner or operator shall complete an application for a permit to perform any of the activities described in subsection (A) of this section. The application shall include, but may not be limited to, the information required on the application form for a permit to operate an underground storage tank system pursuant to Health and Safety Code Sections 25291 or 25292. Construction drawings or plans shall be submitted to verify that the installation, upgrade, repair or change will comply with the Health and Safety Code Sections 25291 or 25292 and California Code of Regulations, Title 23, Division 3, Chapter 16, Article 3. Any upgrade or changes to the tank system must meet the minimum requirements of state law and federal law.

C. A permit to temporarily close, abandon in place or remove an underground storage tank or piping shall be obtained before the actual work is performed. An underground tank closure form shall include assurance that applicable closure requirements as set forth in the California Code of Regulations, Title 23, Division 3, Chapter 16, Article 7, will be met.

D. If there is a release or suspected release from any underground storage tank system, a person or business shall complete a written report pursuant to the California Code of Regulations, Title 23, Division 3, Chapter 16, Article 5, Section 2652, submit it to the CUPA and notify the North Coast Regional Water Quality Control Board. (Ord. 984 § 1, 2001. Code 1964 § 7-21.)

8.20.120 Hazardous waste generators and on-site treatment.

A. A person or business that generates hazardous waste shall complete a hazardous materials business plan and other state consolidated forms as required by department standards. The business shall be subject to the requirements of Health and Safety Code Section 25100, et seq., and California Code of Regulations, Title 22, Division 4.5, including any amendments thereto.

B. A business that is regulated under the permit-by-rule, conditional authorized or conditional exempt tier of Health and Safety Code Section 25100, et seq., shall be required to complete a CUPA permit application as well as DTSC form 1772 or other approved form. The business shall be subject to the requirements of Health and Safety Code Section 25100, et seq., and California Code of Regulations, Title 22, Division 4.5, including any amendments thereto. (Ord. 984 § 1, 2001. Code 1964 § 7-22.)

8.20.130 Administrative procedures – Public inspection of records.

In addition to the provisions for public inspection contained in Health and Safety Code Section 25500, et seq., the following shall apply:

A. Persons requesting information from any file containing a disclosure form/permit or other public records filed under this chapter shall complete an application for the release of information. This application shall require the person to disclose:

1. The person’s name, address and telephone number;

2. The name and address of the person, business, or governmental agency the requester represents;

3. The purpose for which the access is requested; and

4. The names of files to be examined or requested to be copied.

B. The CUPA shall review the request to verify the applicant’s identity and determine whether any of the materials requested are exempt from disclosure under the provisions of California Government Code Section 6254 or of HMC 8.20.140.

C. If the request for information is pursuant to an ongoing investigation by a government agency, the requesting agency may request that the business not be notified of the request. If the business has claimed trade secret protection for any of the information requested, the provisions of HMC 8.20.140 shall apply to such information. A copy of each application for release of information shall be retained in each file requested to be viewed or copied, and shall become a public record subject to later disclosure. (Ord. 984 § 1, 2001. Code 1964 § 7-23.)

8.20.140 Trade secrets and confidential or secret information.

The disclosure of trade secrets, or confidential information or information certified by an appropriate official of the United States as necessary to be kept secret for national defense purposes shall be governed by Health and Safety Code Sections 25511 and 25538 and other applicable law. (Ord. 984 § 1, 2001. Code 1964 § 7-24.)

8.20.150 Closure work plan and closure report.

A. Any person or business, which has previously been required to submit a hazardous material business plan, shall obtain a permit and submit a closure work plan to the CUPA at least 30 days prior to the closure, relocation, sale or exchange of the business and/or the real property on which the business is located. The closure work plan shall be approved by the CUPA before the removal of hazardous or potentially hazardous materials or hazardous wastes from property prior to implementation.

B. The closure work plan shall describe procedures for terminating the storage of hazardous materials and/or hazardous wastes in each storage facility in a manner that:

1. Eliminates or minimizes the need for further maintenance;

2. Eliminates or minimizes any threat to public health, safety and the environment from residual hazardous materials or hazardous wastes in the facility; and

3. Demonstrates that the hazardous materials and/or hazardous wastes that were stored in the facility will be removed, disposed, neutralized, or reused in an appropriate manner.

C. If underground storage tanks are also being closed, a separate tank closure permit must be obtained from the CUPA and must be referenced in the overall closure plan.

D. The closure work plan shall include:

1. A completed closure form;

2. A current inventory statement and site maps. The business plan may be used to satisfy this requirement;

3. A description of the work to be performed to properly clean, inspect, sample and close the facility. Sampling shall include provisions for independent, third-party analysis conducted by a professional geologist, civil engineer, engineering geologist, chemical engineer, laboratory registered or certified by the state of California, or other such professional as accepted by the CUPA, at the expense of the business owner;

4. A description of disposal/handling methods for all hazardous materials and hazardous wastes.

E. A closure report must be submitted to the CUPA within 30 days of completion of work outlined in the closure work plan. The closure report shall document:

1. A description of the actions actually taken to close the facility;

2. Manifests or other documents detailing the removal, disposal, or neutralization of the hazardous materials and/or hazardous wastes;

3. Sampling results and interpretation of the results;

4. Cleanup levels for soils and ground water affected by an unauthorized release must be based on a risk assessment or another approved method. The person or business must recommend target cleanup levels for long-term corrective action to the CUPA for approval. The person or business must demonstrate to the CUPA that any proposed corrective action will achieve current cleanup goals and will not produce any further degradation to the environment.

F. If any business closes or relocates without submitting and implementing a closure plan, in addition to any administrative, civil or criminal penalties, the property owner shall be required to prepare and implement a closure plan prior to reoccupying the site in any manner, either by owner or any other tenant.

G. The CUPA may require a bond or other financial instrument to secure the performance of the work plan. (Ord. 984 § 1, 2001. Code 1964 § 7-25.)

8.20.160 Response to threatened or actual releases.

A. If a threatened or actual release of a hazardous material or hazardous waste occurs in the absence of a business or property owner, the fire chief shall make a reasonable attempt to contact the business and/or property owner where the threatened or actual release has occurred and shall require the immediate mitigation of the hazard. In order to facilitate 24-hour access to the facility during a response, the business or property owner shall provide a key box approved by the fire department complete with those keys necessary to gain access.

B. If there is no response or no contact is made with a business or property owner within a reasonable time frame, the fire chief shall take mitigating action which may include, but is not limited to, hazard removal or relocation, cleanup, site evaluation, soil testing, and/or chemical analysis.

C. Any person or business with an ownership interest in the business or property on or in which the threatened or actual release occurred shall pay the cost of responding to any threatened or actual release of any hazardous material and all damages and expenses incurred by any public agency having jurisdiction or any public agency assisting the agency having jurisdiction. Expenses shall include, but not be limited to, equipment and personnel and any payments to outside business firms. (Ord. 984 § 1, 2001. Code 1964 § 7-26.)

8.20.170 Inspections.

The CUPA may make periodic inspections of locations where hazardous material and/or hazardous waste is generated, stored, handled, disposed, treated or recycled, and may inspect aboveground and underground storage tank systems and all locations where the CUPA has reasonable cause to believe that hazardous materials or hazardous waste is generated, stored, handled, disposed, treated, or recycled. Inspections may be made without prior notice to the owner or operator of such locations. No person shall obstruct or interfere with the CUPA inspector in the performance of these inspections. Any person who willfully obstructs or interferes with a CUPA inspector who is conducting an inspection pursuant to this chapter is guilty of a misdemeanor, and may be punished by a fine not to exceed $500.00, or by imprisonment for a period not to exceed six months, or by both a fine and imprisonment. (Ord. 984 § 1, 2001. Code 1964 § 7-27.)

8.20.180 Fees.

The City Council shall establish a schedule of fees and charges for CUPA permits and other CUPA activities. Fees collected shall also include any state surcharges when applicable. (Ord. 984 § 1, 2001. Code 1964 § 7-28.)

8.20.190 Denial, suspension or revocation of permit.

A. Any application to operate, construct, install, upgrade, repair, modify or temporarily or permanently close a hazardous materials or hazardous waste facility, underground storage tank system or aboveground storage tank may be denied if it does not conform with applicable laws, regulations and this chapter.

B. Any permit issued pursuant to this chapter may be suspended or revoked for cause. Cause shall be any violation of this chapter or any violation of the provisions of laws or regulations listed in HMC 8.20.010(C).

C. The suspension or revocation of a permit issued pursuant to this chapter shall not preclude the imposition of any other penalty prescribed by this chapter or the prosecution of any violation of this chapter as provided in HMC 8.20.210. (Ord. 984 § 1, 2001. Code 1964 § 7-29.)

8.20.200 Enforcement – Authority.

The CUPA is authorized to enforce all provisions of this chapter and to inspect all activities regulated by this chapter for the purpose of determining compliance therewith, and may issue criminal and/or administrative citations for violations of this chapter. (Ord. 984 § 1, 2001. Code 1964 § 7-30.)

8.20.210 Violation – Civil and criminal penalties.

A. Upon receipt of a criminal citation forwarded to its office by the CUPA, a prosecuting attorney may prosecute the charged violation as a misdemeanor. Alternatively, the prosecuting attorney may prosecute a violation of this chapter by filing a civil lawsuit seeking an order enjoining any acts or practices that constitute or threaten to constitute a violation of this chapter and for the reasonable costs, including attorney’s fees, incurred by the CUPA in investigating and prosecuting the enforcement action.

B. Any person or business that violates HMC 8.20.060 through 8.20.100 inclusive, shall be guilty of a misdemeanor and shall be subject to a fine in an amount not to exceed $1,000 for each day in which the violation occurs. If the violation results in, or significantly contributes to, an emergency, the person shall also pay the full cost of the emergency response by the responding fire department and the CUPA, including the cost of cleanup and disposal of the hazardous materials or hazardous wastes. In the case of a knowing or willful violation of HMC 8.20.060 through 8.20.100, inclusive, (i.e., notice of a violation has been given by the CUPA), the responsible person may be punished by imprisonment in the county jail for not more than one year, pursuant to Health and Safety Code Section 25540.

C. Any person or business that violates HMC 8.20.060 through 8.20.100, inclusive, may be prosecuted in a civil action brought by a prosecuting attorney. Upon a finding by a court of competent jurisdiction that there has been a violation of any of the above-referenced sections, a civil penalty may be imposed in an amount not to exceed $1,000 for each day in which the violation occurs and/or continues. The civil penalty may be imposed in addition to any injunctive relief that may be requested and/or warranted by the circumstances of the violation.

D. Any person or business that violates HMC 8.20.110 shall be subject to a civil penalty in an amount of not less than $500.00 and not to exceed $5,000 for each underground storage tank for each day in which the violation occurs.

E. In determining the amount of fine or civil penalty to be imposed, or any other relief requested by the prosecuting attorney, the court shall consider all of the relevant circumstances, including, but not limited to, the extent of the harm or potential harm caused by the violation, the nature of the violation and the period of time over which it occurred, the frequency of past violations, and the corrective action, if any, taken by the person or business responsible for the conduct or activity that constitutes a violation.

F. Each day on which a violation exists or continues to exist shall be deemed a separate violation.

G. The criminal and civil penalties authorized by this section are in addition to any other penalties or enforcement provisions available for violations of this chapter under federal, state, or local laws. In cases where federal, state, or other local law provides for greater penalties than set forth in this chapter, the more serious penalties shall apply. (Ord. 984 § 1, 2001. Code 1964 § 7-31.)

8.20.220 Complaint and administrative enforcement.

This section is intended to implement the provisions of Health and Safety Code Section 25514.5. The following procedure will apply in administrative enforcement of a violation of this chapter.

A. The CUPA shall issue a written complaint to any person or business subject to an administrative penalty under HMC 8.20.230. The complaint shall allege the acts or failures to act that constitute a violation or violations and the proposed amount of the administrative penalty to be imposed. The complaint shall be served on the person or business by personal service or certified mail, and shall inform the person or business being served that a hearing shall be conducted by no later than 60 days after service of the complaint, unless the person or business waives the right to a hearing on the proposed penalty. The person or business shall request a hearing by written notice to the CUPA within 10 days after the service of the complaint. The written request for hearing shall be served on the CUPA in person or by first-class mail. Failure by any person or business to respond to the CUPA within 10 days shall be deemed as a waiver of right to a hearing.

B. If the person or business served with the complaint waives the right to a hearing, the CUPA shall issue an order requiring the person or business to pay the administrative penalty in the amount specified in the complaint, unless the person or business and the CUPA have entered into a settlement agreement, in which case the person or business shall pay the amount specified in the settlement agreement.

C. The hearing on alleged violation(s) shall be heard by the fire chief or a hearing officer designated by the fire chief so long as the hearing officer is not the person or agency seeking enforcement of this chapter or the imposition of an administrative penalty.

D. At the hearing, a representative of the CUPA shall set forth the facts which justify the penalty, the applicable provisions of this chapter, state law, or CUPA orders or notices that have been violated, and the factors relied upon by the CUPA in setting the amount of the proposed penalty.

E. The person or business may appear in person or by agent or legal counsel and may present information relevant to the charges or the proposed penalty.

F. In conducting the hearing, the hearing officer shall receive information, evidence, and testimony relevant to the alleged violation and the penalty to be imposed. The formal rules of evidence shall not apply, but evidence presented shall be of the type which responsible persons are accustomed to rely on in the conduct of serious affairs.

G. If the hearing officer determines that an administrative penalty is justified, the hearing officer shall consider all of the relevant circumstances in setting the amount of the penalty, including but not limited to the extent of the harm or potential harm caused by the violation, the nature of the violation(s) and the period of time over which it occurred, the frequency of past violations, and the corrective action, if any, taken by the person or business that holds the permit.

H. The hearing officer shall issue its decision in writing no later than 30 days after the hearing. The written decision of the hearing officer shall include findings which explain the basis for imposition of the administrative penalty and the amount of the penalty and an order for payment of the penalty within a specified time frame. Copies of the order shall be served by personal service or certified mail upon the person or business served with the complaint and upon any other persons who appeared at the hearing and requested a copy.

I. A person or business against whom an administrative penalty has been imposed may file a petition for a writ of mandate with the Superior Court in Sonoma County, requesting a review of the decision of the hearing officer, in accordance with the provisions of the California Code of Civil Procedure Section 1094.6, or any successor statute. If a person or business against whom an administrative penalty has been imposed fails to file a writ of mandate within the time period prescribed in Code of Civil Procedure Section 1094.6, said person or business may not later challenge the reasonableness or validity of any decision or order rendered by the hearing officer in any legal action brought by the CUPA to enforce said decision or order, or seek other legal remedies.

J. Any administrative penalty imposed by the decision or order of the hearing officer shall be paid within 30 days of the issuance of said decision or order. The filing of a petition for a writ of mandate shall not stay the accrual of administrative penalties imposed by the hearing officer. (Ord. 984 § 1, 2001. Code 1964 § 7-32.)

8.20.230 Administrative penalties.

A. Any person or business that violates any section of this chapter, or that fails to comply with a written notice or order issued by the CUPA pursuant to this chapter, shall be subject to an administrative penalty. If the violation results in, or significantly contributes to, an emergency, including but not limited to a fire or health or medical problem requiring toxicological, health or medical consultation, the person or business in violation shall also pay the full costs of the emergency response by the responding fire department, the CUPA, county, City, local emergency medical services agency, or poison control center, as well as the costs of cleaning up and disposing of the hazardous materials, acutely hazardous materials or hazardous wastes.

B. An administrative penalty may be imposed on any person or business found to be in violation of any section of this chapter, or who fails to comply with a written notice or order issued by the CUPA pursuant to this chapter. The amount of an administrative penalty issued in accordance with this section shall not exceed $2,000 for each day in which a violation or failure to comply occurs or is allowed to continue. Any person or business that knowingly or willfully violates HMC 8.20.060 through 8.20.100 inclusive, (i.e., after notice of such violation has been given by the CUPA) shall be subject to an administrative penalty in an amount not to exceed $5,000 for each day the violation or failure to comply occurs or continues to occur. If the violation results in, or significantly contributes to, an emergency, including but not limited to a fire or health or medical problem requiring toxicological, health or medical consultation, the person or business in violation shall also pay the full costs of the emergency response by the fire department, the CUPA, county, City, local emergency medical services agency, or poison control center, as well as the costs of cleaning up and disposing of the hazardous materials or acutely hazardous materials.

C. This section shall supplement any other legal remedies available to the CUPA, and shall not preclude the CUPA from filing a civil or criminal action against the person or business to enforce this chapter or any orders or notices issued by the CUPA or to assess any other penalties provided by law. Subject to the right to file a petition for writ of mandate, as described herein, the decision of the hearing officer is final and may not be appealed to the City Council. (Ord. 984 § 1, 2001. Code 1964 § 7-33.)

8.20.240 Administrative appeals hearing.

A. A person or business regulated under this chapter may request a hearing regarding fees, written notices and orders of the CUPA, denial of permits, proposed suspension or revocation of permits, and immediate suspension of permits to operate.

B. The person or business may request a hearing in writing addressed to the fire chief within 10 days after the action. The fire chief shall set a date for the hearing within 30 days after receipt of the written request. Notice of the time and place of the hearing shall be mailed to the appellant no later than 15 days before the date set for the hearing by first-class mail. The fire chief may request the appellant to produce specific records at such hearing and the notice may designate records required to be produced.

C. At the hearing, a representative of the CUPA shall set forth facts and the applicable statutes, regulations or provisions of this chapter which are applicable and information concerning how fees have been determined.

D. The appellant may appear in person or by agent or legal counsel and may present such evidence as may be relevant.

E. In conducting the hearing, the hearing officer shall receive such information, evidence, and testimony as is relevant to the alleged violation, and the formal rules of evidence shall not apply, but evidence shall be of the type upon which responsible persons are accustomed to rely in the conduct of serious affairs.

F. The hearing officer shall render the decision within 10 days after the hearing and a copy of the written decision including findings shall be sent to the appellant by first-class mail.

G. The decision of the hearing officer may not be appealed to the City Council. (Ord. 984 § 1, 2001. Code 1964 § 7-34.)

8.20.250 Dispute resolution.

Mediation of disputes or peer review may be held pursuant to procedures adopted by the CUPA. (Ord. 984 § 1, 2001. Code 1964 § 7-35.)

8.20.260 Conflicting provisions.

If a conflict exists between this chapter and provisions of the Health and Safety Code or of California Code of Regulations, Title 24, Part 9, the most restrictive provisions shall prevail. (Ord. 984 § 1, 2001. Code 1964 § 7-36.)