Chapter 4.65

The purpose of this chapter is the protection of health, life, resources and property through prevention and control of unauthorized discharges of hazardous materials. (Ord. 476, § 2; 1976 Code § 4-13.101).

4.65.020 General obligation – Safety and care.

A. No person, firm or corporation shall cause, suffer, or permit the storage of hazardous materials:

1. In a manner which violates a provision of this chapter or any other local, federal or state statute, code, rule or regulation relating to hazardous materials; or

2. In a manner which causes an unauthorized discharge of hazardous materials or poses a significant risk of such unauthorized discharge.

B. The city shall have discretion to exempt an applicant from any specific requirements of this chapter, other than the requirement for secondary containment in underground storage facilities, except as provided in MMC 4.65.100(C)(4), or to require applicant to meet additional or modified requirements, where such action would be appropriate and consistent with achieving the general obligation of this chapter for protecting public health, safety, and welfare. (Ord. 476, § 2; 1976 Code § 4-13.102).

4.65.030 Specific obligation.

A. Any person, firm, or corporation which stores any material regulated by MMC 4.65.060 which is not excluded by MMC 4.65.070 shall obtain and keep current a hazardous materials storage permit.

B. All such hazardous materials shall be contained in conformity with Article III of this chapter.

C. The storage of such hazardous materials shall be in conformance with the approved hazardous materials management plan.

D. The city shall apply for, and the officer shall consider and issue where appropriate, a permit, in conformity with this chapter, for the storage of hazardous materials by the city in an underground storage tank, as those terms are defined in Chapter 6.7 of Division 20 of the California Health and Safety Code, wherever the city’s storage facility may be situated. Any other city, county, district or department, or agency of the state which stores any hazardous substance, in an underground storage tank, as those terms are defined in Chapter 6.7, in this city without a permit meeting the requirements of said Chapter 6.7 issued by such other local agency, shall obtain and keep current a permit from the city which conforms at a minimum to Sections 25284 and 25284.1 of the Health and Safety Code. (Ord. 476, § 2, Amended by Ord. 480, § 1; 1976 Code § 4-13.103).

4.65.040 Definitions.

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

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

B. “City” means the city of Millbrae.

C. “County” means the county of San Mateo.

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

E. “Hazard class” means Explosives A, Explosives B, Explosives C, blasting agents, flammable liquids, combustible liquids, flammable solids, oxidizers, organic peroxides, corrosive materials, flammable gases, nonflammable gases, Poisons A, Poisons B, irritating materials, etiologic agents, radioactive materials, Other Regulated Materials (ORM) A, B, C, D and E. For purposes of this chapter, the U.S. Department of Transportation (DOT) definitions in 49 CFR Part 173 as amended shall be utilized; however, whenever the definitions in 49 CFR 173 refer to transportation or hazards associated with transportation, they shall be deemed to refer to storage or other regulated activity under this chapter.

F. “Hazardous material” means any material which is subject to regulation pursuant to Article II of this chapter. A mixture shall be deemed to be a hazardous material if it either is a waste and contains any material regulated pursuant to Article II of this chapter, or is a nonwaste and contains one percent by volume or more of any material regulated pursuant to Article II of this chapter.

G. “Officer” means the department or special district designated by the county to administer this chapter or any designee of the department or special district.

H. “Permit” means any hazardous materials storage permit issued pursuant to this chapter, as well as any additional approvals thereto.

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

J. “Permittee” means any person, firm or corporation to whom a permit is issued pursuant to this chapter and any authorized representative, agent or designee of such person, firm or corporation.

K. “Pipes” means pipeline systems which are used in connection with the storage of hazardous materials exclusively within the confines of a facility and which are not intended to transport hazardous materials in interstate or intrastate commerce or to transfer hazardous materials in bulk to or from a marine vessel.

L. “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.

M. “Product-tight” means impervious to the hazardous material which is contained, or is to be contained, so as to prevent the seepage of the hazardous material from the primary containment. To be product-tight, the container shall be made of a material that is not subject to physical or chemical deterioration by the hazardous material being contained.

N. “Secondary containment” means the level of containment external to and separate from the primary containment.

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

P. “Storage facility” means any one or combination of tanks, sumps, wet floors, waste-treatment facilities, pipes, vaults or other portable or fixed containers, used, or designed to be used, for the storage of hazardous materials at a facility.

Q. “Sump” means a pit or well in which liquids collect.

R. “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 local sewer pretreatment requirements for publicly owned treatment works.

S. “Wet floor” means a floor which is used to routinely collect, contain or maintain standing liquids or to transmit standing liquids on a more or less continuous basis. (Ord. 476, § 2; 1976 Code § 4-13.104).

4.65.050 Professional assistance for county determinations.

Whenever the approval or satisfaction of the officer may be required in this chapter for a design, monitoring, testing or other technical submittal by an applicant or permittee, the officer may, in its discretion, require such applicant or permittee, at such applicant’s or permittee’s sole cost and expense, to retain a suitably qualified independent engineer, or chemist, or other appropriate professional consultant, acceptable to the officer, for the purpose of evaluating and rendering a professional opinion respecting the adequacy of such submittal to achieve the purposes of this chapter. The officer shall be entitled to rely on such evaluation and/or opinion of such engineer, chemist or professional consultant in making the relevant determinations provided for in this chapter. (Ord. 476, § 2; 1976 Code § 4-13.105).

Article II. Materials Regulated

4.65.060 Materials regulated.

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

A. Any material listed as a hazardous and/or extremely hazardous material or hazardous and/or extremely hazardous waste in Sections 66680 and 66685 of Title 22 of the California Administrative Code, as amended, whether such material is stored or handled in waste or nonwaste form; or

B. Any material which is listed on the list of Environmental Protection Agency (EPA) pollutants, 40 Code of Federal Regulations, Section 401.15, as amended; or

C. Any material which is classified by the National Fire Protection Association (NFPA) as either a flammable liquid, a Class II combustible liquid or a Class IIIA combustible liquid; or

D. Any material which is listed by the Director of the Department of Industrial Relations in Title 8, California Administration Code Section 339, as amended, excluding all footnotes thereto and subject to the exclusions specified in this subsection. Such exclusions shall apply only to materials which are not otherwise regulated pursuant to this section. These exclusions shall be as follows:

1. Materials recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them if such materials are intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; hormones; enzymes; and aflatoxins.

2. Aluminum salts; asphalt fumes; atrazine; benomyl; bis (dimethylthiocarbamoyl) disulfide; boron oxide; 4-tertbutyl-2-chlorophenyl-methyl methylphosphoramidate; camphor; carbon black; 2-chloro-6 (trichloromethyl) pyridine; clopidol; coal tar pitch volatiles; cotton dust; dibenzoyl peroxide (benzoyl peroxide); dicyclopentadienyl iron; 3,5-dinitro-otoluamide; 2,6-di-tert-butyl-p-cresol; ferbam; fumaric acid; glass, fibrous or dust; graphite, helium; iron oxide; iron salts; magnesium oxide; mica; mineral wool fiber; oil mist; phenothiazine; phenyl ether; phenyl ether-diphenyl (eutectic mixture), vapor; phthalic anhydride; m-phthalodinitrile; polytetrasluoreoethylene decomposition products; rhodium salts; ronnel; rosin core solder; rotenone, commercial; silica, soapstone, talc; tantalum oxide; terphenyls; and 4,4’-thiobis (6-tert-butyl-m-cresol).

E. Any material which has been determined to be hazardous based upon any appraisal or assessment by or on behalf of the party storing this material in compliance with the requirements of the EPA or the California Department of Health Services, or which should have been, but was not, determined to be hazardous due to the deliberate failure of the party storing the material to comply with the requirements of the EPA and/or the Department of Health Services of the county.

F. Any material which has been determined by the party storing it, through testing or other objective means, to be likely to create a significant potential or actual hazard to public health, safety or welfare. This subsection shall not establish a requirement to test for the purposes of this chapter. (Ord. 476, § 2; 1976 Code § 4-13.201).

4.65.070 Exclusions.

This chapter does not apply to the following:

A. Certain Elemental Metals. The following elemental metals included within the purview of MMC 4.65.060 shall not be considered hazardous materials for purposes of this chapter unless they are stored in a friable, powdered or finely divided state: aluminium, beryllium, cadmium, chromium, copper, lead, manganese, molybdenum, nickel, rhodium, silver, tellurium, tin and zinc. Furthermore, tantalum, titanium, tungsten, and uranium shall be excluded from regulation under this chapter;

B. Retail Products. Hazardous materials when contained solely in consumer products packaged for distribution to, and use by, the general public or commercial products used at the facility solely for janitorial or minor maintenance purposes such as paint thinner or wax strippers;

C. Feed. Hazardous materials when contained in a substance intended for use as animal feed;

D. Work Station. Hazardous materials located at a work station in a quantity reasonably required for use as determined by the officer under the circumstances;

E. Exemption. The officer shall exempt any material from the requirements of this chapter where it has been demonstrated to the satisfaction of the county that the material in the quantity and/or solution stored does not present a significant actual or potential hazard to the public health, safety or welfare. (Ord. 476, § 2; 1976 Code § 4-13.202).

4.65.080 Underground tanks.

Notwithstanding MMC 4.65.070 and in addition to those materials regulated pursuant to MMC 4.65.060, a permit shall be required for the storage in an underground storage tank as defined by California Health and Safety Code Section 25280(m), of any material defined as a hazardous substance, in accordance with California Health and Safety Code Section 25280(c). (Ord. 476, § 2; 1976 Code § 4-13.203).

Article III. Containment Standards

4.65.090 Containment of hazardous materials.

A. No person, firm or corporation shall store any hazardous materials regulated by this chapter until a permit or approval has been issued pursuant to this chapter. No permit or approval shall be granted pursuant to this chapter unless permit applicant demonstrates to the satisfaction of the officer, by the submission of appropriate plans and other information, that the design and construction of the storage facility will result in a suitable manner of storage for the hazardous material or materials to be contained therein.

B. All installation, construction, repair or modification, closure, and removal shall be to the satisfaction of the officer. The officer shall have the discretion to exempt an applicant from any specific requirement, except that the discretion with regard to underground storage facilities shall be exercised in accordance with MMC 4.65.100(C)(4) or to impose reasonable additional or different requirements in order to better secure the purpose and general obligation of this chapter for protection of public health, safety and welfare. The guidelines approved pursuant to MMC 4.65.700 shall serve as an interpretation of the provisions of this article addressed in such guidelines. (Ord. 476, § 2; 1976 Code § 4-13.301).

4.65.100 New storage facilities.

A. No person, firm or corporation shall construct or install any new storage facility until a permit or approval has been issued pursuant to this chapter.

B. Monitoring Capability. All new storage facilities intended for the storage of hazardous materials which are liquids or solids at standard temperature and pressure (STP) shall be designed and constructed with a monitoring system capable of detecting that the hazardous material stored in the primary containment has entered the secondary containment. Visual inspection of the primary containment is the preferred method; however, other means of monitoring may be required by the city. Where secondary containment may be subject to the intrusion of water, a means of monitoring for water intrusion and for safely removing the water shall also be provided. Whenever monitoring devices are provided, they shall, where applicable, be connected to attention-getting visual and/or audible alarms.

C. Containment Requirements. Primary and secondary levels of containment shall be required for all new storage facilities intended for the storage of hazardous materials which are liquids or solids at standard temperature and pressure (STP) unless exempted by the officer.

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 discharged hazardous materials and so as to be capable of containing hazardous materials discharged from a primary container for a period of time equal to or longer than the maximum anticipated time sufficient to allow recovery of the discharged hazardous material.

b. In the case of an installation with one primary container, the secondary containment shall be large enough to contain at least one hundred ten percent of the volume of the primary container.

c. In the case of a storage facility with multiple primary containers, the secondary container shall be large enough to contain one hundred fifty percent of the volume of the largest primary container placed in it, or ten percent of the aggregate internal volume of all primary containers in the storage facility, whichever is greater.

d. If the storage facility is open to rainfall, then the secondary containment must be able to additionally accommodate the volume of a twenty-four-hour rainfall as determined by a one-hundred-year storm history.

3. Laminated, coated or clad materials shall be considered single-walled and shall not be construed to fulfill the requirements of both primary and secondary containment.

4. Variance – Secondary Containment.

a. A variance from the requirement for secondary containment for an underground storage facility may be granted upon a written finding by the officer issuing the permit, which has been reviewed and approved by the city council of the city that based on the special circumstances:

i. The requirement of secondary containment creates an unusual and particular hardship; and

ii. An equivalent degree of protection is provided by the proposed alternative; and

iii. The proposed alternative has been appropriately so certified as providing an equivalent degree of protection, by an independent consultant retained in accordance with MMC 4.65.050, or has been specified as potentially appropriate for a variance in the guidelines approved pursuant to MMC 4.65.700.

b. The city council shall consider the variance, at a public meeting, at which oral or written presentation on the matter may be made. A notice which includes a statement that a variance from secondary containment for hazardous materials will be considered, and which specifies the address of the facility seeking the variance, and the time and place of the meeting shall be given in the following manner:

i. The city clerk of the city shall cause a copy of the notice to be published once in a newspaper of general circulation in the county, not less than ten days prior to the meeting; and

ii. The city clerk shall cause a copy of the notice to be mailed at least ten days prior to the meeting to any party who files a written request with the city clerk, for mailed notice of meetings at which such variance is to be considered. Such written request for notice shall be valid for one year from the date on which it is filed unless a renewal request is filed. Renewal request for such mailed notices shall be filed on or before April 1st of each year.

5. Variance – Construction and Monitoring Requirements. Underground storage tanks may be granted a variance from the standards for construction and monitoring set forth in this article other than from the requirement for double containment, only upon a written finding by the officer issuing the permit that the applicant has demonstrated by clear and convincing evidence:

a. That because of special circumstances not generally applicable to other property or facilities, including size, shape, design, topography, location or surroundings, the strict application of the standards of this chapter would be unnecessary to adequately protect the soil and beneficial uses of the waters of the state from an unauthorized release; or

b. That strict application of the standards of this chapter would create practical difficulties not generally applicable to other facilities or property; and that the proposed alternative will adequately protect the soil and beneficial uses of the waters of the state from an unauthorized release.

D. Overfill Protection. Means of overfill protection may be required for any primary container. This may be an overfill prevention device and/or an attention-getting high level alarm.

E. Separation of Materials. Materials that in combination may cause a fire or explosion, or the production of a flammable toxic, or poisonous gas, or the deterioration of a primary or secondary container shall be separated in both the primary and secondary containment so as to avoid potential intermixing.

F. Drainage System. Drainage of water entering by precipitation or infiltration from within a storage facility containing hazardous materials which are liquids or solids at STP shall be controlled in a manner approved by the city so as to prevent hazardous materials from being discharged. No drainage system will be approved unless the flow of the drain can be controlled. The facility shall contain a means of removing the water by the owner or operator. This removal system shall also provide for a means of analyzing the removed water for hazardous substance contamination and a means of disposing of the water, if so contaminated, at an authorized disposal facility. (Ord. 476, § 2, Amended by Ord. 480, § 2; 1976 Code § 4-13.302).

4.65.110 Existing storage facilities.

Any storage facility in existence as of the effective date of this chapter, or any storage facility for which a building permit was issued prior to the effective date of this chapter, which does not meet the standards of MMC 4.65.100, may be permitted pursuant to this chapter as long as it is providing suitable storage for hazardous materials. The owner shall outfit the facility with a monitoring system capable of detecting unauthorized releases of any hazardous substances stored in the facility, and thereafter the operator shall monitor each facility, based on the materials stored and the type of monitoring installed. In addition, storage facilities which contain hazardous materials which are liquids or solids at standard temperature and pressure (STP) must be monitored in accordance with a plan approved by city as set forth herein.

A. A monitoring plan for each such storage facility containing hazardous materials which are liquids or solids at STP, shall be submitted to the officer as part of the hazardous materials management plan.

B. Monitoring under such plan shall include visual inspection of the primary containment wherever practical; however, if the visual inspection is not practical, an alternative method of monitoring each storage facility on a monthly or more frequent basis may be required by the city.

C. Alternative method(s) of monitoring may include but are not limited to: pressure testing, vacuum testing or hydrostatic testing of the piping systems or underground storage tanks; groundwater monitoring well(s) which are downgradient and adjacent to the storage facility; vapor analysis within the well(s) where appropriate; and analysis of the soil boring(s) at the time of initial installation of the well(s). The location and number of well(s), depth of well(s), and sampling frequency shall be approved by the city.

D. Such monitoring devices and methods, as approved by city, shall be installed and operating within six months of the issuance of a provisional permit in accordance with MMC 4.65.390 and any other applicable provisions of this chapter. The city may grant an extension of this compliance date; however, such extension shall not exceed one additional year. The full term permit may be issued when compliance with this subsection has been achieved. No monitoring systems required by this section shall be installed later than January 1, 1985, or the date specified in Section 25284.1 of Chapter 6.7 of Division 20 of the Health and Safety Code, whichever date is later.

E. The continued use of, and permit approval for, existing storage facilities is subject to review and modification or termination by the officer whenever there has been any unauthorized discharge. It shall also be reviewed by the officer each time the permit is renewed. In determining whether continued storage in such storage facility is suitable, the officer shall consider the age of the storage facility, the methods of containment, the methods of monitoring, the feasibility of the required retrofit, the concentration of the hazardous materials contained, the severity of potential unauthorized discharge, and the suitability of other long term preventive measures which meet the intent of this chapter.

F. Existing storage facilities which are not approved in accordance with this section must be upgraded to comply with this chapter or be closed in accordance with MMC 4.65.120 within one year of a decision not to issue a full term permit. An extension of time for compliance with this subsection, not to exceed one additional year, may be granted. (Ord. 476, § 2, Amended by Ord. 480, § 3; 1976 Code § 4-13.303).

4.65.120 Out-of-service storage facilities.

A. No storage facility shall be abandoned.

B. Storage facilities which are temporarily out of service, and are intended to be returned to use, must continue to be monitored and inspected.

C. Any storage facility which is not being monitored and inspected in accordance with this chapter must be closed or removed in a manner approved by the officer in accordance with MMC 4.65.420.

D. Any person, firm or corporation having an interest, including a leasehold interest, in real property and having reason to believe that an abandoned storage facility is located upon such property shall make a reasonable effort to locate such storage facility within six months of the effective date of this chapter.

E. Whenever an abandoned storage facility is located, a plan for the closing or removing or the upgrading and permitting of such storage facility shall be filed within ninety days of its discovery. A closure plan shall conform to the standards specified in MMC 4.65.420. (Ord. 476, § 2; 1976 Code § 4-13.304).

4.65.130 Monitoring.

A. Monitoring Methods. Monitoring methods shall include at least one system for detecting leakage from the primary container. A monitoring system, capable of detecting that the hazardous material stored in the primary containment has entered the secondary containment, shall be provided. Visual inspection of the primary containment is the preferred method; however, other means of monitoring may be required. Where secondary containment may be subject to the intrusion of water, a means of monitoring for such water shall be provided. Whenever monitoring devices are provided, they shall, where applicable, be connected to attention-getting visual and/or audible alarms.

B. Monitoring, Testing and Inspection. Every permittee under this chapter shall provide testing, monitoring (if applicable), and inspections in compliance with the hazardous materials management plan and shall maintain records adequate to demonstrate compliance therewith. (Ord. 476, § 2; 1976 Code § 4-13.305).

4.65.140 Maintenance, repair or replacement.

A. Permittee will carry out maintenance, ordinary upkeep, and minor repairs in a careful and safe manner. No permit or other approval will be required for such maintenance and upkeep.

B. Any substantial modification or repair of a storage facility other than minor repairs or emergency repairs shall be in accordance with plans to be submitted to the officer and approved in accordance with this chapter 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 five working days after such emergency repairs have been started, permittee shall seek approval pursuant to this chapter by submitting drawings or other information adequate to describe the repairs to the officer.

D. Replacement of any storage facility for hazardous materials, which are liquids or solids at STP, must be in accordance with the new installation standards of MMC 4.65.100. (Ord. 476, § 2; 1976 Code § 4-13.306).

4.65.150 Handling.

A. Dispensing and mixing of hazardous materials must not be done in such a manner as to substantially increase the risk of an unauthorized discharge.

B. When hazardous materials are moved into or out of a storage facility, they shall remain in the travel path only for the time reasonably necessary to transport the hazardous material and such movement shall be in a manner which will not result in an unauthorized discharge. (Ord. 476, § 2; 1976 Code § 4-13.307).

4.65.160 Secured facilities.

Access to the storage facilities shall be secured by means of fences and/or locks. The access to the storage facilities shall be kept securely locked when unattended. (Ord. 476, § 2; 1976 Code § 4-13.308).

4.65.170 Emergency equipment.

Emergency equipment shall be provided which is reasonable and appropriate for potential emergencies presented by the stored hazardous materials. Such equipment shall be regularly tested and adequately maintained. (Ord. 476, § 2; 1976 Code § 4-13.309).

4.65.180 Posting of emergency procedures.

Simplified emergency procedures shall be posted conspicuously in locations where hazardous materials are stored. (Ord. 476, § 2; 1976 Code § 4-13.310).

Article IV. Hazardous Materials Management Plan

4.65.190 Hazardous materials management plan.

Each applicant for a permit pursuant to this chapter shall file a written plan, for approval, to be known as a hazardous materials management plan (HMMP), which shall demonstrate the safe storage and handling of hazardous materials. The HMMP may be amended at any time with the consent of the officer. The HMMP shall be a public record except as otherwise specified. Approval of the HMMP shall mean that the HMMP has provided adequate information for the purposes of evaluating the permit approval. Such approval shall not be understood to mean that the officer has made an independent determination of the adequacy of that which is described in the HMMP. (Ord. 476, § 2; 1976 Code § 4-13.401).

4.65.200 Standard form HMMP.

The standard form hazardous materials management plan must be submitted unless the facility qualifies as a minimal storage site under MMC 4.65.210. The HMMP shall include the following:

A. Facility Description.

1. General Information. The HMMP shall contain the name and address of the facility and business phone number of applicant, the name and titles and emergency phone numbers of the primary response person and an alternate, the number of employees, number of shifts, hours of operation, and principal business activity.

2. General Facility Description. The HMMP shall contain a map drawn at a legible scale and in a format and detail determined by the officer. It shall show the location of all buildings and structures, chemical loading areas, parking lots, internal roads, storm and sewer drains, and shall specify the uses of adjacent properties.

The officer may also require information as to the location of wells, floodplains, earthquake faults, surface water bodies, and/or general land uses (schools, hospitals, institutions, residential areas) within one mile of the facility boundaries.

3. Facility Storage Map.

a. The HMMP shall contain a facility storage map at a legible scale for licensing and enforcement purposes. The information in this section is provided for purposes of ensuring the suitable and secure storage of hazardous materials and for the protection and safety of the response personnel of the officer. The officer shall take reasonable precautions to ensure the confidentiality of the information provided pursuant to this subsection.

The facilities storage map shall indicate the location of each hazardous materials storage facility, including all interior, exterior, and underground storage facilities, and access to such storage facilities. In addition, the map shall indicate the location of emergency equipment related to each storage facility, and the general purpose of the other areas within each facility.

For each storage facility, the map shall contain information as prescribed below; except that where the hazardous material being stored is a trade secret, it shall be identified in a coded manner (together with its key) and not in a manner which would reveal trade secret information:

i. A floor plan to scale and the permit quantity limit;

ii. For each nonwaste hazardous material which is stored in a quantity greater than the quantities specified in MMC 4.65.240(A), the general chemical name, common/trade name, major constituents for mixtures, United Nations (UN) or North America (NA) number, if available, and physical state. For each waste hazardous material stored in any quantity within the storage facility, the presence of wastes shall also be indicated;

iii. For all hazardous materials, including wastes, stored in each storage facility, the hazard class or classes and the quantity range for each such class, aggregated within each storage facility, in the following ranges:


Quantity Range Number	Range Amounts
1	Up to and including 500 pounds for solids, 55 gallons for liquids, and 200 cubic feet at STP for compressed gases,
2	Between 500 and 5,000 pounds for solids, 55 and 550 gallons for liquids, and 200 and 2,000 cubic feet at STP for compressed gases,
3	Between 5,000 and 25,000 pounds for solids, 550 to 2,750 gallons for liquids, and 2,000 to 10,000 cubic feet at STP for compressed gases,
4	Between 25,000 and 50,000 pounds for solids, 2,750 and 5,500 gallons for liquids, and 10,000 and 20,000 cubic feet at STP for compressed gases,
5	More than 50,000 pounds for solids, 5,500 gallons for liquids, and 20,000 cubic feet at STP for compressed gases;

iv. For materials not regulated under this chapter, but regulated under the Uniform Fire Code, such as radioactives or cryogens, or for materials stored in storage facilities exempted by MMC 4.65.720(A) and (B), the officer may require that the hazard class or classes and the quantity range of each such hazard class, using the quantity ranges listed in subsection (A)(3)(a)(iii) of this section, be provided;

v. For tanks, the capacity limit of each tank, and the hazardous material contained in each tank by general chemical name, common/trade name, major constituents for mixtures, United Nations (UN) or North America (NA) number, if available, and physical state.

b. Due to the threat to the security of the facility posed by the disclosure of the information in the facility storage map, this information shall be maintained by the officer for law enforcement purposes only and shall not be made public. Public disclosure of this information could endanger the security of the facility or present a clear danger to public health and safety. The officer shall not disclose this information to the public without the consent of the permittee or permit applicant unless ordered to do so by a court of competent jurisdiction. Permittee or permit applicant shall be deemed a real party in interest in any such action. Prompt notice of a lawsuit to compel disclosure shall be given by the officer to permittee or permit applicant. However, the officer shall be under no duty to prevent disclosures where there has been any unauthorized discharge of hazardous materials stored in storage facility(s) shown on such map or where such disclosure arises out of any official emergency response relating to the storage facility(s).

c. The facility storage map shall be updated annually or whenever an additional approval is required for the facility or whenever the hazardous materials inventory statement is required to be amended pursuant to MMC 4.65.230.

B. Hazardous Materials Inventory Statement. A hazardous materials inventory statement shall be filed in accordance with Article V of this chapter.

C. Separation of Materials. The HMMP shall contain a description of the methods to be utilized to ensure separation and protection of stored hazardous materials from factors which may cause a fire or explosion, or the production of a flammable, toxic, or poisonous gas, or the deterioration of the primary or secondary containment.

D. Monitoring Program. The HMMP shall contain a description of the locations, type, manufacturer specifications (if applicable), and suitability of monitoring methods to be used in each storage facility storing hazardous materials which are liquids or solids at STP. It shall also specify the frequency of inspections of storage facilities which will be conducted by the permittee.

E. Recordkeeping Forms. The HMMP shall contain an inspection check sheet or log designed to be used in conjunction with routine inspections. The check sheet or log shall provide for the recording of the date and time of inspection and, for monitoring activity, the date and time of any corrective action taken, the name of the inspector, and the countersignature of the designated safety manager for the facility or the responsible official as designated in the HMMP.

F. Emergency Equipment. The HMMP shall describe emergency equipment availability, testing, and maintenance.

G. Variation in Information.

1. Additional information may be required for the HMMP where such information is reasonably necessary to meet the intent of this chapter.

2. Whenever permittee has submitted a plan which includes substantially the same information as is required for any component(s) of the HMMP to any other public agency regulating hazardous materials, such plan may be submitted to the officer in lieu of such component(s). The city may give deference to any approval of such plan by the other public agency. (Ord. 476, § 2, Amended by Ord. 495, § 1 and Ord. 513, § 1; 1976 Code § 4-13.402).

4.65.210 Short form HMMP – Minimal storage site.

A. A facility shall qualify as a minimal storage site if the quantity of each hazardous material stored in one or more storage facilities in an aggregate quantity for the facility is five hundred pounds or less for solids, fifty-five gallons or less for liquids, or two hundred cubic feet or less at STP for compressed gases.

B. The applicant for a permit for a facility which qualifies as a minimal storage site may opt to file the short form hazardous material management plan. Such plan shall include the following components:

1. General application information;

2. A simple line drawing of the facility showing the location of the storage facilities and indicating the hazard class or classes and physical state of the hazardous materials being stored and whether any of the material is a waste;

3. The short form HMMP shall also include a carcinogen identification form which shall indicate the storage of any quantity of any carcinogen listed in Sections 5208 through 5215 and Section 5219 of Title 8 of the California Administrative Code, as amended. This provision will be satisfied by the submittal to officer of a copy of the carcinogen registration form submitted to the California Department of Industrial Relations in accordance with the above cited sections of Title 8 of the California Administrative Code, as amended;

4. Information describing that the hazardous materials will be stored in a suitable manner and will be appropriately contained, separated and monitored;

5. Description of emergency equipment to be maintained;

6. Assurance that the disposal of any hazardous materials will be in an appropriate manner.

C. Where a claim for trade secret protection pursuant to MMC 4.65.260 is made for any carcinogen listed in Sections 5208 through 5215 and Section 5219 of Title 8 of the California Administrative Code, as amended, pursuant to subsection (B)(3) of this section, the carcinogen identification form to be publicly disclosed shall identify all carcinogens not claimed to be trade secrets and it shall indicate the number of carcinogens claimed to be trade secrets. (Ord. 476, § 2; 1976 Code § 4-13.403).

4.65.220 Supplemental requirements for emergency response plans.

A. In addition to the HMMP requirements set forth in this chapter, any person, firm or corporation which handles a hazardous material or a mixture containing a hazardous material which has a quantity at any one time during the reporting year equal to, or greater than, a total weight of five hundred pounds, or a total volume of fifty-five gallons, or two hundred cubic feet at standard temperature and pressure for compressed gas, shall establish and implement a plan for emergency response to a release or threatened release of a hazardous material pursuant to this section. Such plan, including the hazardous materials inventory statement (HMIS) described in Article V of this chapter, shall comprise the business plan for purposes of Chapter 6.95 of Title 20 of the Health and Safety Code. Filing of such plans shall be pursuant to the provisions of Section 25505 of the Health and Safety Code.

B. For purposes of this section, in addition to the materials regulated in Article II, the term “hazardous material” shall include those things specified in Section 25501(j), (k) and (l), and Section 25501.1 of the Health and Safety Code.

C. Unless the facility qualifies as a minimal storage site under MMC 4.65.210, or is otherwise exempt pursuant to MMC 4.65.070, the following information shall be provided:

1. Emergency response plans and procedures in the event of a reportable release or threatened release of a hazardous material which shall include, but not be limited to, the following:

a. Immediate notification to city, to the city fire department, and to the State Office of Emergency Services;

2. Procedures for the mitigation of a release or threatened release to minimize any potential harm or damage to persons, property or the environment;

3. Evacuation plans and procedures for the business site, including immediate audible notice and warning to all persons on the site.

D. Training shall be provided for all new employees, and annual training, including refresher courses, shall be provided for all employees in safety procedures to be utilized in the event of a release or threatened release of a hazardous material. Such training shall include, but not be limited to, familiarity with the plans and procedures specified in subsection (C) of this section. These training programs may take into consideration the technical and managerial responsibilities of each employee.

E. Any business required to file a pipeline operations contingency plan in accordance with the California Pipeline Safety Act of 1981 (Chapter 5.5 (commencing with Section 51010) of Part 3 of Division 1 of Title 5 of the Government Code) and the regulations of the Department of Transportation, found in Part 195 of Title 49 of the Code of Federal Regulations, may file a copy of those plans with the city instead of filing the emergency response plan specified in subsection (A) of this section.

F. Any business operating a farm exempted by paragraph (5) of subdivision (b) of Section 25503.5 of the Health and Safety Code from filing the information specified in subsections (C) and (D) of this section shall, notwithstanding this exemption, provide the training programs specified in subsection (D) of this section.

G. The city shall maintain records of all emergency response plans and procedures received and shall index them by street address and company name. Such plans and revisions thereto shall be available for public inspection during regular working hours, except for those portions of such plan, including any maps of the facility, as described in MMC 4.65.200(A)(3), specifying the precise location where hazardous materials are stored and handled on-site. The city is required by Health and Safety Code Section 25506 to transmit copies of the entire emergency response plan or any information contained therein to any requesting state or local agency. (Ord. 513, § 2; 1976 Code § 4-13.404).

Article V. Hazardous Materials Inventory

4.65.230 Hazardous materials inventory statement.

A. A hazardous materials inventory statement (HMIS) shall be filed annually with this city in accordance with this article. Any person, firm or corporation which stores or handles any hazardous material in an amount which is equal to or greater than the quantities specified in MMC 4.65.240 is required to file an HMIS.

B. For purposes of this article, in addition to the materials regulated in Article II, the term “hazardous material” shall include those things specified in Section 25501(j), (k) and (l), and Section 25501.1 of the Health and Safety Code.

C. Such person, firm or corporation shall amend the HMIS within thirty days of the storage or handling of any hazardous material not listed thereon but required to be listed by MMC 4.65.240(A) or of an increase of one hundred percent or more in the quantity of a previously disclosed material or an increase in the quantity range or of a change in business address, ownership or business name. (Ord. 476, § 2, Amended by Ord. 513, § 3; 1976 Code § 4-13.501).

4.65.240 Information required.

A. Information shall be included in the HMIS for each hazardous material or mixture containing a hazardous material stored or handled in a facility (aggregated over all such material stored in one or more storage facilities) where the aggregate quantity throughout the facility at any one time during the reporting year is equal to or greater than five hundred pounds in weight for solids, fifty-five gallons for liquids, or two hundred cubic feet at standard temperature and pressure (STP) for compressed gases.

B. The information in the HMIS shall include:

1. For nonwastes: The general chemical name, common/trade name, major constituents for mixtures, the manufacturer, United Nations (UN) or North America (NA) number, if available, and the hazard class or classes and the material safety data sheet (MSDS) or equivalent information as required by this city.

2. For wastes: The Department of Health Services manifest for wastes or equivalent information, including the general chemical and mineral composition of the waste listed by probable maximum and minimum concentration, and the hazard class or classes.

3. A listing of the chemical name and common names of every other hazardous material or mixture containing a hazardous material handled by the business which is not otherwise listed pursuant to subsection (B)(1) or (2) of this section.

4. The maximum amount of each hazardous material or mixture containing a hazardous material disclosed in subsection (B)(1), (2) or (3) of this section.

5. Sufficient information on how and where the hazardous materials disclosed in subsection (B)(1), (2) or (3) of this section, are handled by the business to allow fire, safety, health and other appropriate personnel to prepare adequate emergency responses to potential releases of the hazardous materials.

6. The standard industrial classification (SIC) code number of the business if applicable.

7. The name and twenty-four-hour phone number(s) of the person representing the business who is able to assist emergency personnel in the event of an emergency involving the business during nonbusiness hours.

C. The HMIS may report the amount of hazardous material under this section by ranges, rather than a specific amount, pursuant to MMC 4.65.200(A)(3)(a)(iii), as long as those ranges provide the information necessary to meet the needs of emergency rescue personnel, to determine the potential hazard from a release of the materials, and meets the purposes of this chapter.

D. The HMIS shall also include a carcinogen identification form which shall indicate the storage of any quantity of any carcinogen listed in Sections 5208 through 5215 and Section 5219 of Title 8 of the California Administrative Code, as amended. This provision will be satisfied by the submittal to this city of a copy of the carcinogen registration form submitted to the California Department of Industrial Relations in accordance with the above cited sections of Title 8 of the California Administrative Code, as amended. (Ord. 476, § 2, Amended by Ord. 513, § 4; 1976 Code § 4-13.502).

4.65.250 Public records.

The HMIS is a public record; however, the information contained therein is subject to trade secrets protection pursuant to Health and Safety Code Section 25511. (Ord. 476, § 2, Amended by Ord. 513, § 5; 1976 Code § 4-13.503).

4.65.260 Report to the State Water Resources Control Board.

The city will require its permit applicants and permittees to fill out, in addition to forms required for city’s own purposes under this chapter, standardized forms based on the application form and annual report form prepared by the State Water Resources Control Board as specified by California Health and Safety Code Section 25283.2, and city will forward these forms to the State Water Resources Control Board.

However, where any of the information required on such standardized forms is claimed by the permit applicant or permittee to be a trade secret, the permit applicant or permittee shall leave that portion of the form submitted to city blank except to indicate the words “trade secret,” and the permit applicant or permittee shall thereafter, within ten days of submitting the incomplete form to city, submit the completed form including the trade secret information directly to the State Water Resources Control Board. City shall have no obligation to protect as a trade secret, any information which is furnished to it for forwarding to the State Water Resources Control Board on these standardized forms. (Ord. 480, § 4; 1976 Code § 4-13.505).

Article VI. Responsibility

4.65.270 Reporting unauthorized discharge.

A. Liquids and Solids at STP. As soon as any person in charge of a storage facility or responsible for emergency response for a facility has knowledge of any confirmed or unconfirmed unauthorized discharge of a hazardous material which is liquid or solid at STP, such person shall take all necessary steps to ensure the discovery and containment and cleanup of such discharge and shall notify the officer of the occurrence as required by this subsection.

1. Confirmed Unauthorized Discharge.

a. Recordable Unauthorized Discharge. Any recordable unauthorized discharge shall be contained and safely disposed of in an appropriate manner by permittee and such occurrence and the response thereto shall be recorded in the permittee’s monitoring records. A recordable unauthorized discharge is any unauthorized discharge of a hazardous material which meets all of the following criteria:

i. The discharge is from a primary containment to a secondary containment or to a rigid aboveground surface covering capable of containing the discharge until cleanup of the hazardous material is completed; and

ii. The permittee is able to adequately clean up the discharge before it escapes from such secondary containment or such aboveground surface, but if the cleanup requires more than eight hours, it becomes a reportable discharge in accordance with this chapter.

iii. There is no increase in the hazard of fire or explosion, nor is there any production of a flammable or poisonous gas, nor is there any deterioration of such secondary containment or such rigid aboveground surface.

iv. An otherwise recordable unauthorized discharge does not need to be recorded if the discharge is not the result of the deterioration or failure of the primary container and the quantity discharged is less than one ounce by weight, and can be cleaned up within fifteen minutes.

b. Reportable Unauthorized Discharge. Any unauthorized discharge which is not determined to be recordable under this chapter must be reported to the officer immediately. The reporting party shall provide information to the officer relating to the ability of permittee to contain and dispose of the hazardous material, the estimated time it will take to complete containment and disposal, and the degree of hazard created. The officer may verify that the hazardous material is being contained and appropriately disposed. The officer at any time upon a determination that permittee is not adequately containing and disposing of such hazardous material, shall have the power and authority to undertake and direct an emergency response in order to protect the public health and/or safety.

2. Unconfirmed Unauthorized Discharge.

a. Indication of Loss in Inventory Records. Whenever a material balance or other inventory record, employed as a monitoring technique under the HMMP, indicates a loss of hazardous material, and no unauthorized discharge has been confirmed by other means, permittee shall have five working days to determine whether or not there has been an unauthorized discharge. If before the end of such period, it is determined that there has been no unauthorized discharge, an entry explaining the occurrence shall be made in permittee’s monitoring records. Where permittee has not been able, within such period, to determine that there has been no unauthorized discharge, an unauthorized discharge is deemed confirmed and permittee shall proceed in accordance with subsection (A) of this section.

b. Test Results. Whenever any test results suggest a possible unauthorized discharge, and no unauthorized discharge has been confirmed by other means, the permittee shall have five working days to retest. If second test results obtained within that period establish that there has been no unauthorized discharge, the results of both tests shall be recorded in permittee’s monitoring records. If it has not been established within such period that there has been no unauthorized discharge, an unauthorized discharge is deemed confirmed and permittee shall proceed in accordance with subsection (A) of this section.

B. Gases at STP. Any person in charge of a storage facility or responsible for emergency response for a storage facility, who has knowledge of any unauthorized discharge of a hazardous material which is a gas at STP, must immediately report such discharge to the city if such discharge presents a threat of imminent danger to public health and safety.

C. Office of Emergency Services. The city shall submit a written report to the Office of Emergency Services within ten working days from the date that the city is notified of an unauthorized discharge from an underground storage tank. (Ord. 476, § 2, Amended by Ord. 480, § 5; 1976 Code § 4-13.601).

4.65.280 Cleanup responsibility.

Any person, firm or corporation responsible for storing the hazardous material shall institute and complete all actions necessary to remedy the effects of any unauthorized discharge, whether sudden or gradual. The officer shall undertake actions to remedy the effects of such unauthorized discharge itself, only if it determines that it is reasonably necessary under the circumstances for the officer to do so. The responsible party shall be liable to reimburse the officer for all costs incurred by the officer in remedying the effects of such unauthorized discharge, including the costs of fighting fires to the extent allowed by law. This responsibility is not conditioned upon evidence of wilfulness or negligence of the party storing the hazardous material(s) in causing or allowing such discharge. Any responsible party who undertakes action to remedy the effects of unauthorized discharge(s) shall not be barred by this chapter from seeking to recover appropriate costs and expenditures from other responsible parties except as provided by MMC 4.65.290. (Ord. 476, § 2; 1976 Code § 4-13.602).

4.65.290 Indemnification.

The permittee shall indemnify, hold harmless and defend the officer and the city against any claim, cause of action, disability, loss, liability, damage, cost or expense, howsoever arising, which occurs by reason of an unauthorized discharge in connection with permittee’s operations under this permit, except as arises from the officer’s sole wilful act or sole active negligence. (Ord. 476, § 2; 1976 Code § 4-13.603).

Article VII. Inspections and Records

4.65.300 Inspections by the officer.

The officer may conduct inspections, at its discretion, for the purpose of ascertaining compliance with this chapter and causing to be corrected any conditions which would constitute any violation of this chapter or of any other statute, code, rule or regulation affecting the storage of hazardous materials.

Permittees are not required to disclose the identity of hazardous materials protected as trade secrets pursuant to MMC 4.65.260 to anyone other than the official designated for that purpose pursuant to MMC 4.65.260 except in the case of an emergency response or an unauthorized discharge related to the storage facility in which the trade secret material is contained. Therefore, permittee may put temporary coverings over the labels of trade secret materials during the course of inspections conducted by other than the officer so designated.

A. Right of Entry. Whenever necessary for the purpose of investigating or enforcing the provisions of this chapter, or whenever any enforcement officer has reasonable cause to believe that there exists in any structure or upon any premises, any condition which constitutes a violation of this chapter, said officers may enter such structure or premises at all reasonable times to inspect the same, or to perform any duty imposed upon any of said respective officers by law; provided that if such structure or premises be occupied, the officer shall first present proper credentials and request entry, and further provided, that if such structure or premises is unoccupied, the officer shall first make a reasonable attempt to contact a responsible person from such firm or corporation and request entry, except in emergency circumstances. If such entry is refused, the officer seeking entry shall have recourse to every remedy provided by law to secure entry.

B. Inspections by Officer Discretionary. All inspections specified herein shall be at the discretion of the officer and nothing in this chapter shall be construed as requiring the officer to conduct any such inspection nor shall any actual inspection made imply a duty to conduct any other inspection. Furthermore, nothing in this chapter shall be construed to hold the officer 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. 476, § 2; 1976 Code § 4-13.701).

4.65.310 Inspections by permittee.

The permittee shall conduct regular inspections of its own facilities to assure compliance with this chapter and shall maintain logs or file reports in accordance with its hazardous materials management plan. The inspector conducting such inspections shall be qualified to conduct such inspections. (Ord. 476, § 2; 1976 Code § 4-13.702).

4.65.320 Special inspections.

In addition to the inspections specified above, the officer may require the periodic employment of special inspectors to conduct an audit or assessment of permittee’s facility to make a hazardous material safety evaluation and to determine compliance with the provisions of this chapter.

A. The special inspector shall be a qualified person or firm who shall demonstrate expertise to the satisfaction of the officer.

B. The special inspection report shall include an evaluation of the facilities and recommendations consistent with the provisions of this chapter where appropriate. A copy of the report shall be filed with the officer at the same time that it is submitted to permittee.

C. Permittee shall, within thirty days of said report, file with the officer a plan to implement all recommendations, or shall demonstrate to the satisfaction of the officer why such recommendations shall not be implemented. (Ord. 476, § 2; 1976 Code § 4-13.703).

4.65.330 Substituted inspections.

An inspection by an employee of any other public agency may be deemed by the officer as a substitute for any requirement above. (Ord. 476, § 2; 1976 Code § 4-13.704).

4.65.340 Maintenance of records.

All records required by this chapter shall be maintained by the permittee for a period of not less than three years. Said records shall be made available to the officer during normal working hours and upon reasonable notice. (Ord. 476, § 2; 1976 Code § 4-13.705).

Article VIII. Application for Permit

4.65.350 Permit.

Any permit, firm, or corporation which stores any hazardous material shall obtain and keep current a hazardous materials storage permit issued pursuant to this chapter. One such permit shall be issued for a single facility. Additional approvals shall be obtained for any storage facility thereafter connected, installed, constructed, repaired as required by MMC 4.65.140, substantially modified, replaced, closed or removed, or for any change or addition in hazardous materials stored, not in accordance with the prior approval. Notwithstanding the above, permittee shall have thirty days to apply for an additional approval for the storing of a new or different hazardous material with the same hazard class as stated on the existing permit approvals where such storage does not increase the hazard of fire or explosion or the hazard of the production of flammable or poisonous gas. Storage of new or different hazardous materials, not meeting all of these criteria, shall require the prior additional approval. (Ord. 476, § 2; 1976 Code § 4-13.801).

4.65.360 Application for permit.

Application for a new, amended, or renewed permit or an additional approval shall be made to the designated officer on the form provided by the officer. In addition to the information required by such form, applicant shall submit the hazardous materials management plan required by MMC 4.65.190 and construction plans, if any, in conformity with MMC 4.65.090. Applicant shall specify the permit quantity limit requested to be permitted for each storage facility. (Ord. 476, § 2; 1976 Code § 4-13.802).

4.65.370 Investigation.

The officer to whom an application for a new or renewed permit is made may make such investigation of the applicant and the proposed facility or activity as such officer deems necessary to carry out the purposes of this chapter. (Ord. 476, § 2; 1976 Code § 4-13.803).

4.65.380 Approval of permit.

A permit shall not be approved until the issuing officer is satisfied that the storage approved adequately conforms to the provisions of this chapter. (Ord. 476, § 2; 1976 Code § 4-13.804).

4.65.390 Provisional permit.

If the officer to whom an application has been made finds that the proposal does not completely conform to the provisions of this chapter, the officer may approve a provisional permit, subject to conditions to be imposed by the officer, when provisional permit is feasible and does not appear to be detrimental to the public interest. Such permit shall not be issued unless the applicable minimum requirements of Section 25284 or 25284.1 of Chapter 6.7 of Division 20 of the Health and Safety Code have been complied with. The applicant must be informed in writing of the reasons why a full-term permit was not issued. (Ord. 476, § 2, Amended by Ord. 480, § 6; 1976 Code § 4-13.805).

4.65.400 Temporary permit.

Temporary permit for storage may be issued where storage does not exceed thirty days and occurs no more frequently than every six months. The containment standards of Article III, the hazardous materials management plan of Article VII and the inspection and records requirements of Article IV may be modified as appropriate under these circumstances for the storage of hazardous materials on a nonregular temporary basis. (Ord. 476, § 2; 1976 Code § 4-13.806).

4.65.410 Issuance of permits.

A. Issuance. Upon the approval of a temporary, provisional, or full-term permit by the officer and upon the payment of any applicable fee, the officer shall issue and deliver the permit to the applicant. Such permit shall contain the following information:

1. The name and address of the permittee for purposes of notice and service of process;

2. The address of the facility for which the permit is issued;

3. Authorization of the storage facility(s) approved under the permit, the permit quantity limit(s) and the approved hazard class or classes for the storage facility(s);

4. The date the permit is effective;

5. The date of expiration;

6. When applicable, a designation that the permit is provisional or temporary;

7. Any special conditions of the permit.

B. Records. The officer shall keep a record of all permits issued and all conditions attached thereto. (Ord. 476, § 2; 1976 Code § 4-13.807).

4.65.420 Additional approvals.

A. When a request for an additional approval is filed as required by MMC 4.65.350, the procedures set forth in this chapter for an application for a permit shall also apply to an application for an additional approval. Each application for an additional approval shall be accompanied by an appropriate amendment to the HMMP.

B. If the additional approval request is for closure of a storage facility, permittee shall apply for approval to close such storage facility not less than thirty days prior to the termination of the storage of hazardous materials at the storage facility. Such closure shall be in accordance with a closure plan which describes procedures for terminating the storage of hazardous materials in each storage facility in a manner that:

1. Minimizes the need for further maintenance; and

2. Controls to the extent that a threat to public health or safety or to the environment from residual hazardous materials in the storage facility is minimized or eliminated; and

3. Demonstrates that hazardous materials that were stored in the storage facility will be removed, disposed of, neutralized, or reused in an appropriate manner. This thirty-day period may be waived by the officer if there are special circumstances requiring such waiver. (Ord. 476, § 2; 1976 Code § 4-13.808).

4.65.430 Term.

A permit may be issued for a term of five years, excepting provisional permits which may be issued for any period of time up to six months and temporary permits which may be issued for no longer than thirty days. (Ord. 476, § 2; 1976 Code § 4-13.809).

4.65.440 Renewal.

Every application for the renewal of a permit or extension of a provisional permit shall be made at least thirty 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 officer has made its determination pursuant to MMC 4.65.450 and any administrative appeal pursuant to Article IX has been exhausted. (Ord. 476, § 2; 1976 Code § 4-13.810).

4.65.450 Determination.

The officer shall make a determination with regard to any application for a permit, an additional approval, or a renewal, within ninety days from the date that the application has been completed or compliance with the appropriate provisions of the California Environmental Quality Act (CEQA) has been completed, whichever occurs later. This time limit may be further extended by mutual agreement between the officer and the applicant. (Ord. 476, § 2; 1976 Code § 4-13.811).

4.65.460 Fees.

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

A. Delinquent Fees. All permit fees delinquent for thirty days or more shall be subject to an additional charge to be determined by the officer which shall be added to the amount of the fee collected.

B. Refund of Fees. No refund or rebate of a permit fee shall be allowed by reason of the fact that the permit is denied or the permittee discontinues the activity or use of a facility prior to the expiration of the term or that the permit is suspended or revoked prior to the expiration of the term. (Ord. 476, § 2; 1976 Code § 4-13.812).

4.65.470 Transfer of permit.

The permit may be transferred to new owners of the same business only if the new owners accept responsibility for all obligations under this chapter at the time of the transfer of the business and document such transfer on a form provided by the officer within thirty days of transfer of ownership of the business. Such transfer shall be subject to the approval of the officer. (Ord. 476, § 2; 1976 Code § 4-13.813).

4.65.480 Effective date of permit.

No permit shall become effective until the permit has been signed and accepted by the permittee. Where the permittee is a company, firm or corporation, the acceptance must be signed by a person having the legal authority to bind the permittee. (Ord. 476, § 2; 1976 Code § 4-13.814).

Article IX. Denial

4.65.490 Denial of application.

If the officer to whom application has been made has cause to deny the application and determine that it would not be feasible or in the public interest to approve a temporary or provisional permit, then the officer shall deny the application. (Ord. 476, § 2; 1976 Code § 4-13.901).

4.65.500 Grounds for denial.

A permit shall be denied if the applicant fails to demonstrate adequate conformity to the provisions of this chapter. In addition, a permit can be denied for any of the grounds upon which the permit would be subject to revocation pursuant to Article X. (Ord. 476, § 2; 1976 Code § 4-13.902).

4.65.510 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. 476, § 2; 1976 Code § 4-13.903).

4.65.520 Appeal to city council.

Within thirty days from the date of deposit of the decision in the mail in accordance with MMC 4.65.640, the applicant may appeal, in writing, to the city council or the city by filing the appeal with the city clerk of the city. (Ord. 476, § 2; 1976 Code § 4-13.904).

4.65.530 Hearing on appeal.

The city clerk shall set a time and place for the hearing on the appeal and shall notify the applicant, in writing, of such date and time, not later than ten working days from the date the appeal was received by the city clerk. The hearing shall be conducted within thirty days from the date the appeal was received by the city clerk. (Ord. 476, § 2; 1976 Code § 4-13.905).

4.65.540 Disposition of appeal.

After the hearing on the appeal, the city council may refer the matter back to the originating officer for a new investigation and decision, may affirm the decision of the originating officer, may approve a provisional permit as provided in MMC 4.65.390 or may approve the application with or without conditions. The decision of the city council shall be the final administrative determination and is subject to judicial review. (Ord. 476, § 2; 1976 Code § 4-13.906).

Article X. Remedial Action

4.65.550 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, wilful misrepresentation, or any wilful inaccurate or false statement in applying for a new or renewed permit;

B. Fraud, wilful misrepresentation, or any wilful inaccurate or false statement in any report required by this chapter;

C. Failure to abate, correct or rectify any noncompliance within the time specified in the notice of noncompliance;

D. Failure to correct conditions constituting an unreasonable risk of an unauthorized discharge of hazardous materials within a reasonable time after notice from a governmental entity other than the officer;

E. Failure to abide by the remedial action imposed by the officer. (Ord. 476, § 2; 1976 Code § 4-13.1001).

4.65.560 Notice of noncompliance.

A. Unless the officer finds that an immediate suspension under MMC 4.65.580 is necessary to protect the public health or safety from imminent danger, the officer shall issue a notice of noncompliance:

1. For failure to comply with the provisions of this chapter, any permit conditions or any provisions of the hazardous materials management plan; or

2. Before instituting remedial action pursuant to MMC 4.65.550(D), such notice shall be sent by certified mail to permittee. (Ord. 476, § 2, Amended by Ord. 480, § 7; 1976 Code § 4-13.1002).

4.65.570 Notice of hearing.

A notice of hearing shall be given to the permittee by the officer in writing, setting forth the time and place of the hearing, the ground or grounds upon which the remedial action is based, the pertinent code section or sections, and a brief statement of the factual matters in support thereof. The notice shall be given at least fifteen days prior to the hearing date. (Ord. 476, § 2; 1976 Code § 4-13.1003).

4.65.580 Suspension prior to hearing.

Whenever the officer finds that suspension of a permit prior to a hearing for remedial action is necessary to protect the public health or safety from imminent danger, the officer may immediately suspend any permit pending the hearing for remedial action. The officer shall immediately notify the permittee of such suspension by having a written notice of the suspension personally served on the permittee. Permittee shall have the opportunity for a preliminary hearing with regard to such prehearing suspension within three working days of receiving written notice of such suspension. (Ord. 476, § 2; 1976 Code § 4-13.1004).

4.65.590 Remedial action.

If the officer, after the hearing, finds that cause exists for remedial action, the officer 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 MMC 4.65.560;

C. A revocation of the permit for the facility or for a storage facility and approval of a provisional permit;

D. Suspension of the permit for the facility or for a storage facility for a specified period not to exceed six months;

E. Modification or addition of conditions of the permit;

F. Revocation of the permit with no reapplication permitted for a specified period not to exceed five years.

If the grounds for remedial action are based on MMC 4.65.550(C), (D) or (E) and if such grounds are limited to one storage facility, the remedial action taken shall be limited to that storage facility. (Ord. 476, § 2; 1976 Code § 4-13.1005).

4.65.600 Transmittal of decision.

Within ten days of the hearing the 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 officer shall be the final administrative determination and is subject to judicial review. (Ord. 476, § 2; 1976 Code § 4-13.1006).

4.65.610 Authority after suspension, revocation or expiration.

The suspension, revocation or expiration of a permit issued under this chapter shall not prevent any proceedings to investigate such permit, any remedial action against such permittee or any proceeding against such permittee. (Ord. 476, § 2; 1976 Code § 4-13.1007).

4.65.620 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. (Ord. 476, § 2; 1976 Code § 4-13.1008).

Article XI. Hearing Procedure

4.65.630 Hearing rules.

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. 476, § 2; 1976 Code § 4-13.1101).

4.65.640 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. 476, § 2; 1976 Code § 4-13.1102).

Article XII. Enforcement

4.65.650 Criminal penalties.

Criminal sanctions may be sought for violations of this chapter, to the extent available under existing municipal code provisions. (Ord. 476, § 2; 1976 Code § 4-13.1201).

4.65.660 Civil penalties.

Any person, firm, or corporation who intentionally or negligently violates any provision of this chapter, except that an unauthorized discharge which is recordable and recorded in compliance with MMC 4.65.270 shall not be a violation of this chapter for purposes of this section, or fails to comply with any order issued thereunder, shall be liable for a civil penalty not to exceed five hundred dollars 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;

C. The length of time over which the violation occurred;

D. The frequency of past violations;

E. The permittee’s record of maintenance;

F. Corrective action, if any, taken by the permittee.

In any civil action brought pursuant hereto, in which the officer prevails, the court shall determine and impose reasonable expenses, including attorneys’ fees, incurred by the officer in the investigation and prosecution of the action. (Ord. 476, § 2; 1976 Code § 4-13.1202).

4.65.670 Civil action for retaliation.

A civil action may be instituted against any employer by any employee who has been discharged, demoted, suspended, or in any other manner discriminated against in terms or conditions of employment, or threatened with any such retaliation, because such employee has, in good faith, made any oral or written report or complaint related to the enforcement of this chapter to any company official, public official or union official, or has testified in any proceeding in any way related thereto. In addition to any actual damages which may be awarded, damages shall include costs and attorney’s fees. The court may award punitive damages in a proper case. (Ord. 476, § 2; 1976 Code § 4-13.1203).

4.65.680 Remedies not exclusive.

Remedies under this section are in addition to and do not supersede or limit any and all other remedies, civil or criminal. (Ord. 476, § 2; 1976 Code § 4-13.1204).

Article XIII. Miscellaneous

4.65.690 Disclaimer of liability.

A. The degree of protection required by this chapter is considered reasonable for regulatory purposes. The standards set forth herein are minimal standards and this chapter does not imply that compliance will ensure that there will be no unauthorized discharge of hazardous material. This chapter shall not create liability on the part of the city, any officer or employee thereof or the officer, respectively, for any damages that result from reliance on this chapter or any administrative decision lawfully made thereunder. All persons handling, storing, using, processing, and disposing of hazardous materials within the 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 that there is no unauthorized discharge of hazardous materials.

B. This chapter is not intended to create any different standard or obligation for the storage of carcinogens than is imposed for the storage of other hazardous materials. Hazardous materials are identified as carcinogens herein for public record purposes only and the identification of a material as a carcinogen shall not require a different or stricter application of the provisions of this chapter, nor notice to any person under any circumstances other than those expressly specified in this chapter, nor shall such identification create any other duty or obligation upon the officer different from or additional to those duties or obligations applicable to the storage of other hazardous materials. (Ord. 476, § 2; 1976 Code § 4-13.1301).

4.65.700 Guidelines.

Copies of the guidelines approved by the officer shall be maintained in the office of the city clerk of the city, and in the office of the department of the county or the special district designated by the county to administer this chapter, respectively. Such guidelines, in the areas addressed therein, shall serve as an interpretation of this chapter. (Ord. 476, § 2; 1976 Code § 4-13.1302).

4.65.710 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 officer, its elected or appointed officers, employees, or agents, it is the legislative intent that such words establish a discretionary responsibility or duty requiring the exercise of judgment and discretion. (Ord. 476, § 2; 1976 Code § 4-13.1303).

4.65.720 Conflict with other laws.

Notwithstanding any other provision of this chapter:

A. A storage facility regulated by any state or federal agency will be exempted from any conflicting provision of this chapter.

B. If the storage facility is required to have a permit from the Department of Health Services under Health and Safety Code Section 25100 et seq., it shall be exempted from any provision of this chapter which is covered by the regulations adopted under the above cited statute.

C. Whenever any provision of this chapter conflicts with the Fire Code as adopted by the city, the stricter shall prevail. (Ord. 476, § 2; 1976 Code § 4-13.1304).

4.65.730 Severability.

If any section, subsection, sentence, clause, or phrase of this chapter is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the chapter. The city council declares that it would have passed this chapter and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the chapter would be subsequently declared invalid or unconstitutional. (Ord. 476, § 2; 1976 Code § 4-13.1305).

Article XIV. Compliance Schedule

4.65.740 Effective date.

The effective date of this chapter is thirty days from the date of passage of the ordinance adopting this chapter. (Ord. 476, § 2; 1976 Code § 4-13.1401).

Editor’s note – The ordinance adopting this chapter was passed December 27, 1983.

4.65.750 Timetable for initial compliance.

A. New Storage Facilities:

1. As of the effective date of this chapter, a hazardous materials storage permit for a facility must be obtained prior to the installation or use of any new storage facility unless a building permit for such new storage facility was issued prior to such date.

2. The hazardous material management plan must be filed at the time of application for a hazardous material storage permit.

B. Existing Storage Facilities:

1. A facility which has any existing hazardous materials storage facilities or had obtained a building permit for such a storage facility prior to the effective date of this chapter, and to which no new storage facility is added, shall have one year from such effective date to file a completed application for a hazardous materials storage permit, including a monitoring plan in accordance with MMC 4.65.110. The time limitation for determination specified in MMC 4.65.450 shall not apply but the applicant shall be deemed to have a provisional permit of indefinite term, until the officer makes such determination.

2. Notwithstanding the above, a hazardous material inventory statement, if applicable, must be filed within ninety days of the effective date of this chapter. (Ord. 476, § 2; 1976 Code § 4-13.1402).

Chapter 4.65HAZARDOUS MATERIALS STORAGE

4.65.010 Purpose.