Chapter 8.88 HAZARDOUS MATERIALS AND HAZARDOUS WASTE ESTABLISHMENTS

A. Hazardous substances and hazardous wastes present in the community may pose acute and chronic health hazards to individuals who live and work in the City, and who are exposed to such substances as a result of fires, spills, industrial accidents, or other types of releases or emission.

B. The people who live and work in the City have a right and need to know of the use and potential hazards of hazardous materials.

C. Basic information on the location, type, quantity and the health risks of hazardous materials used, stored, or disposed of in the City is not now available to firefighters, health officials, health care providers, planners, elected officials, and residents.

D. It is the intent of the City Council that this section through PMC 8.88.130 recognize the community’s right and need for basic information on the use and disposal of hazardous materials in the City and that it establish an orderly system for the provision of such information including appropriate education and training for use of information.

E. It is further the intent of the City Council that the system of disclosure set forth in this section through PMC 8.88.130 shall provide the information essential to firefighters, health officials, health care providers, planners, elected officials and residents in meeting their responsibilities for the health and welfare of the community in such a way that the statutory privilege of trade secrecy is not abridged. (Ord. 94 § 1, 1983; Ord. 29 § 1, 1981; CC § 68.641)

8.88.020 Definitions.

For the purpose of PMC 8.88.010 through 8.88.130, the terms listed in this section shall be defined as follows:

A. “Carcinogen” means a substance or agent which can cause cancer. For purposes of PMC 8.88.010 through 8.88.130, carcinogens are chemicals for which there is sufficient evidence of carcinogenicity as specified in guidelines prepared by the International Agency for Research on Cancer and the National Cancer Institute and are listed on the list of hazardous substances established by the Director of Industrial Relations pursuant to Section 6380 of the Labor Code.

B. “Chemical name” means the scientific designation of a substance in accordance with the International Union of Pure and Applied Chemistry or the system developed by the Chemical Abstracts Service.

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

D. “Disclosure form” means the written request for information prepared by the Health Officer pursuant to PMC 8.88.080.

E. “EPA Waste Stream Code” means the identification number assigned pursuant to the regulations of the U.S. Environmental Protection Agency to specific types of hazardous waste.

F. “Establishment” means a single business operation conducted on the same or contiguous parcels of property under the same ownership or entitlement to use.

G. “Hazardous material” means any hazardous substance or hazardous waste.

H. “Hazardous substance” means any substance or product:

1. For which the manufacturer or producer is required to prepare an MSDS for the substance or product pursuant to the Hazardous Substances Information and Training Act (commencing with Section 6360, Chapter 2.5, Part 1 of Division 5 of the Labor Code) or pursuant to any applicable Federal law or regulation; or

2. Which is listed as a radioactive material set forth in Chapter 1, Title 10, Appendix B, of the Code of Federal Regulations as maintained and updated by the Nuclear Regulatory Commission.

I. “Handle” means to generate, treat, store, or dispose of a hazardous waste in any fashion.

J. “Hazardous waste” means hazardous or extremely hazardous waste as defined in Sections 25115 and 25117 of the Health and Safety Code and set forth in Title 22 of the California Administrative Code.

K. “MSDS” means Material Safety Data Sheet prepared pursuant to Section 6390 of the Labor Code.

L. “Person” means an individual, trust, firm, joint stock company, corporation, partnership, association, City, County or district.

M. “Proprietary information” means information regarding compounds or ingredients used in a process or production which does not qualify as trade secrets but which provides an industry or business with a competitive advantage.

N. “Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.

O. “Reproductive toxins” means a substance or agent which can affect reproductive functions causing birth defects, spontaneous abortions, impaired spermatogenesis, reduced fertility and/or intrauterine growth retardation, and appears on the list of hazardous substances prepared by the Director of Industrial Relations pursuant to Section 6380 of the Labor Code.

P. “Sensitive hazardous materials” means hazardous materials recognized by the Health Officer which if deliberately misused would present an imminent threat to public health and safety.

Q. “SIC code” means the identification number assigned by the Standard Industrial Classification Code to a specific type of business.

R. “Use” includes the handling, processing, or storage of a hazardous substance.

S. “User” means any person who uses a hazardous substance or handles a hazardous waste. (Ord. 94 § 1, 1983; Ord. 29 § 1, 1981; CC § 68.642)

8.88.030 Review of designation as carcinogens or reproductive toxins.

By July 1st of each year, beginning with the year 1983, the Health Officer may recommend to the City Council materials which should be added or deleted from the designation as carcinogens or reproductive toxins described in PMC 8.88.020(A) and (O). (Ord. 94 § 1, 1983; Ord. 29 § 1, 1981; CC § 68.643)

8.88.040 Hazardous materials advisory committee.

The Health Officer shall establish an advisory committee representing health care providers, industry, labor, fire suppression, law enforcement, community and environmental interests. The purpose of the committee shall be to advise the Health Officer on the implementation of PMC 8.88.010 through 8.88.130 including effective methods of public information and education. (Ord. 94 § 1, 1983; Ord. 29 § 1, 1981; CC § 68.644)

8.88.050 Filing of a hazardous substance disclosure form.

A. Based on SIC Codes and other similar classifications, the Health Officer shall identify establishments which are potential users of hazardous materials.

B. Every person who owns or operates an establishment that is identified by the Health Officer as a potential user shall complete, within 30 days of receipt from the Health Officer, a form requesting the following information:

1. Name;

2. Address;

3. Type of business;

4. Whether the person uses or handles hazardous materials.

C. Any person who uses or handles a hazardous material must annually submit a completed disclosure form to the Health Officer by September 1st of each year.

D. Within 30 days of any:

1. Major change in the use of new hazardous materials in reportable quantities,

2. Change of business address,

3. Change of business ownership, or

4. Change of business name;

the user shall submit a disclosure form detailing the new use or handling or other appropriate information. (Ord. 94 § 1, 1983; Ord. 29 § 1, 1981; CC § 68.645)

8.88.060 Maintenance of files.

A. The Health Officer shall maintain files for at least 30 years of all disclosure forms received and provide for a data bank of generic MSDS health and safety information. These files shall be open to the public for inspection and reproduction during normal business hours. The disclosure forms shall be filed by street address.

B. Any person may request information regarding hazardous materials at an establishment from the City Department of Health Services. In situations involving potential or actual exposures, the department shall, within two working days of the person’s request, examine the records of any establishment made available or submitted pursuant to PMC 8.88.070(C) to obtain the information requested. The department shall release the information to the requesting person within five working days of the person’s request consistent with the requirements of PMC 8.88.100. In the event of a medical emergency, the department shall take all measures necessary to obtain the information immediately.

C. In situations involving nonimminent public health concerns, or requests for large amounts of information, the department shall provide the information within a reasonable period of time, given the nature and extent of the request. The department may collect fees, as established by City Council resolution from time to time, to recover costs for providing information under this subsection. (Ord. 683 § 38, 2008; Ord. 94 § 1, 1983; Ord. 29 § 1, 1981; CC § 68.646)

8.88.070 Content of disclosure form.

A. The disclosure form shall be prepared by the Health Officer with the assistance, if necessary, of fire personnel, the Department of Development Services and other interested parties. The disclosure form shall include requests for the following:

1. A listing of the chemical name or any common name of each carcinogen or reproductive toxin used by the person completing the disclosure form;

2. A listing of the chemical name, or common name of every hazardous substance used by the person completing the disclosure form;

3. A listing of every hazardous waste handled by the person completing the disclosure form;

4. The maximum amount of each and every hazardous material disclosed in subsections (A)(1), (2) and (3) of this section which is stored at any one time by the user over the course of the year. Quantities are to be reported within specified ranges.

5. An indication that the user possesses appropriate discharge permits for any intentional releases of the hazardous materials disclosed in subsections (A)(1), (2) and (3) of this section into the air, water, sewers, or land to enable the community to understand the sources, quantity and content of hazardous material releases.

B. The Health Officer may accept forms required by State or Federal law in lieu of portions of the disclosure form specified in this section provided that such State or Federal forms contain equivalent information.

C. Any person who is required to maintain and make available an MSDS pursuant to California Administrative Code, Title 8, Section 5194 shall make such document available to the Health Officer upon request within two working days.

D. Upon request, all users must provide information beyond that specifically requested in the disclosure form to the Health Officer, if the Health Officer determines that such information is necessary to protect health and safety or the environment. Such additional information shall be subject to the trade secret provisions of PMC 8.88.100. (Ord. 518, 1999; Ord. 94 § 1, 1983; Ord. 29 § 1, 1981; CC § 68.647)

8.88.080 Emergency response information.

A. Each establishment shall provide the Health Officer with a list of names, addresses, and phone numbers (office and home) of all persons qualified and authorized to act as an emergency contact.

B. When necessary, the Health Officer may request additional information on how and where hazardous materials are stored, for the purpose of distribution to Fire Departments and other emergency response teams that may be called upon to provide emergency services in connection with the handling and use of hazardous materials.

C. All emergency response information submitted or made available to City agencies pursuant to this section shall be kept confidential and shall not be disclosed to the public unless required by compelling circumstances constituting an imminent danger to public health. The City Council finds and declares that this information, were it accessible to the general public, may be potentially used to sabotage, destroy, or otherwise damage industrial facilities. The City Council further declares pursuant to Government Code Section 6255, that the public interest served by not making such information public, clearly outweighs the public interest served by disclosure of such information. (Ord. 94 § 1, 1983; Ord. 29 § 1, 1981; CC § 68.648)

8.88.090 Exemptions to disclosures.

A. A substance designated as a hazardous substance by PMC 8.88.010 through 8.88.130 solely by its presence on the Nuclear Regulatory Commission list of radioactive materials, shall be exempt from the requirement that these materials be listed on the disclosure form.

B. Hazardous substances contained only in consumer products packaged for distribution to, and use by, the general public shall be exempt from disclosure under PMC 8.88.010 through 8.88.130.

C. Any person using or handling a hazardous material in amounts not exceeding 500 pounds or 55 gallons, whichever is the lesser, in any month in one location, shall be exempted from the requirement of disclosure of that use or handling unless the Health Officer upon approval by the City Council has provided notice that he or she has changed the weight or volume limits of this exemption for a specific class of acutely or extremely hazardous materials in response to public health concerns. This exemption shall not apply to laboratories involved in chemical synthesis and production. Known carcinogens or reproductive toxins of any quantity shall not be exempted pursuant to this subsection unless used or intended to be used for medical or therapeutic purposes. (Ord. 94 § 1, 1983; Ord. 29 § 1, 1981; CC § 68.649)

8.88.100 Confidentiality.

A. If a user believes that a request for information made by either the disclosure form or pursuant to PMC 8.88.070(C) and (D) involves the release of a trade secret, the user shall stamp, mark or designate the information as a trade secret and shall submit the information requested to the Health Officer.

B. The Health Officer shall protect from disclosure any and all trade secrets coming into his or her possession, as defined in subsection (d) of Section 6254.7 of the Government Code and Section 1060 of the Evidence Code, when requested in writing by the user.

C. Any information reported to or otherwise obtained by the Health Officer, or any of his representatives or employees, which is exempt from disclosure pursuant to subsection B of this section, shall not be disclosed to anyone except an officer or employee of the City, the County, the State or the United States of America, in connection with the official duties of such officer or employee under any law for the protection of health, or to contractors with the County or medical service providers and their employees, if in the opinion of the Health Officer such disclosure is necessary for the satisfactory performance of their duties.

D. For the purposes of this section, fire and emergency response personnel and County health personnel operating within the jurisdiction of the City shall be considered employees of the City.

E. Information certified by appropriate officials of the United States, as necessarily kept secret for national defense purposes, shall be accorded the full protection against disclosure as specified by such official or in accordance with the laws of the United States.

F. Release of Information.

1. The Health Officer upon his or her own initiative or upon receipt of a request for the release of information designated as a trade secret by a user, shall determine whether any or all of the information so submitted is properly designated as a trade secret.

2. If the Health Officer determines that the information is not a trade secret, the Health Officer shall notify the user by certified mail.

3. The user shall have 15 days after receipt of notification to provide the Health Officer with a complete justification and statement of the grounds on which the trade secret privilege is claimed. This justification and statement shall be submitted by certified mail.

4. The Health Officer shall determine whether such information is protected as a trade secret within 15 days after receipt of the justification and statement or, if no justification and statement is submitted, within 30 days of the original notice. The Health Officer shall notify the user and any party who has requested the information of that determination. The final notice shall also specify a date, not sooner than 15 days after the date of mailing of the final notice, when the information shall be made available to the public.

5. Prior to the date specified in the final notice, a user may institute an action in an appropriate Superior Court for a declaratory judgment as to whether such information is subject to protection under subsection A of this section and the information shall not be disclosed pending final judgment in such action.

G. The provisions of this section shall not permit a user to refuse to disclose information required pursuant to this chapter to the Health Officer.

H. A user may designate, when appropriate, information made available to the Health Officer by either the disclosure form or pursuant to PMC 8.88.070(C) and (D) as proprietary information or as information regarding sensitive hazardous materials. The Health Officer will disclose this information only to health care providers or other individuals, including but not limited to neighborhood residents, after the Health Officer determines that this information is needed for legitimate health concerns.

I. In situations involving extremely sensitive materials, such as national defense work, which are normally protected by elaborate security systems, the Health Officer may issue a variance to omit the listing of certain hazardous substances from the disclosure form to protect such information from inadvertent disclosure; provided, that the user satisfies the following requirements:

1. The user must demonstrate to the satisfaction of the Health Officer that there is the potential for misuse if the hazardous substances or information regarding them are obtained by the public.

2. The user must indicate on the appropriate place on the disclosure form that a hazardous substance is being omitted from the form.

3. The user must provide the following information from the MSDS for each hazardous substance omitted: Fire and Explosive Hazard Data; Health Hazard Data; Reactivity Data; Spill or Leak Procedures; Special Protection Information; and Special Precautions.

4. The user must agree to an inspection of all facilities by the Health Officer to ensure that all hazardous materials are being handled in a safe manner.

5. The user must make provisions to allow for immediate independent 24-hour access to the hazardous materials records of the establishment by the Health Officer.

6. The user must establish to the Health Officer’s satisfaction that an emergency coordinator will be available on a 24-hour basis to supply information on hazardous materials at the establishment to the Health Officer.

7. The user must keep at least one listing of hazardous substances omitted from the disclosure form at a separate location from the establishment.

8. The user may be required to pay a higher permit fee to cover the extra cost of additional inspections and administrative procedures required by the above requirements.

J. Any officer or employee of the City, or former City officer or employee, who by virtue of such employment or official position has obtained possession of or has access to material the disclosure of which is prohibited by this section, and who knowing that disclosure of the material is prohibited, knowingly and wilfully discloses the material in any manner to any person known not to be entitled to receive it, shall be guilty of an infraction. Any contractor with the City and any employee of such contractor, who has been furnished information as authorized by this section, shall be considered to be an employee of the City for purposes of this section.

K. The City Council finds and declares, pursuant to Section 6255 of the Government Code, that the public interest served by not making information regarding trade secrets, proprietary information, and sensitive hazardous materials public clearly outweighs the public interest served by disclosure of such information to members of the general public, except as provided by this section. (Ord. 94 § 1, 1983; Ord. 29 § 1, 1981; CC § 68.811)

8.88.110 Fees.

The City Council may establish a schedule of fees to be paid by persons using or handling hazardous materials which is sufficient to cover the costs to the County of administering PMC 8.88.010 through 8.88.130 and conducting investigations to ensure compliance. The schedule of fees shall include a provision for collection of delinquency fees. (Ord. 94 § 1, 1983; Ord. 29 § 1, 1981; CC § 68.812)

8.88.120 Enforcement officer – Authority – Exceptions.

The Health Officer is authorized and empowered to enforce the provisions of PMC 8.88.010 through 8.88.130 and to inspect such activities as are regulated in PMC 8.88.010 through 8.88.130 for the purpose of determining compliance with PMC 8.88.010 through 8.88.130. No person shall obstruct or interfere with the Health Officer in his performance of these duties. The Health Officer shall be empowered to make such arrests and issue citations pursuant to Penal Code Section 836.5 and 833.7 for violations of PMC 8.88.010 through 8.88.130. (Ord. 94 § 1, 1983; Ord. 29 § 1, 1981; CC § 68.813)

8.88.130 Violation – Penalty.

A. Any person who, upon receiving written notice from the Health Officer, fails to comply with the provisions of PMC 8.88.050 is guilty of an infraction. Each day on which a failure to file occurs shall be considered a separate violation.

B. Such person may also be civilly liable for injuries to persons or property caused by the failure to comply with PMC 8.88.050. (Ord. 94 § 1, 1983; Ord. 29 § 1, 1981; CC § 68.810)

Article II. Hazardous Waste Establishments

8.88.140 Purpose.

It is the intent of the City Council that the Health Officer establish a program to monitor establishments where hazardous wastes are produced, stored, handled, disposed of, treated or recycled. It is further the intent of the City Council that the Health Officer provide health care information and other appropriate technical assistance on a 24-hour basis to emergency responders in the event of a hazardous waste incident involving community exposure. (Ord. 95 § 2, 1983; Ord. 29 § 1, 1981; CC § 68.901)

8.88.150 County Health Officer to enforce State hazardous waste control law.

The Health Officer, in addition to his other duties, is designated as the officer to enforce the provisions of the State Hazardous Waste Control Law and the minimum standards of management of hazardous and extremely hazardous waste as specified in Chapter 30, Division 4, Title 22 of California Administrative Code pertaining to the safe production, storage, handling, disposal, treatment and recycling of such waste. (Ord. 95 § 2, 1983; Ord. 29 § 1, 1981; CC § 68.902)

8.88.160 Inspection of places or establishments where hazardous waste is produced, stored, handled, disposed of, treated or recycled.

It shall be the duty of the Health Officer to make periodic inspections of all hazardous waste establishments where hazardous waste and extremely hazardous waste are produced, stored, handled, disposed of, treated or recycled. Such establishments shall be referred to in PMC 8.88.140 through 8.88.240 as hazardous waste establishments. (Ord. 95 § 2, 1983; Ord. 29 § 1, 1981; CC § 68.903)

8.88.170 Reporting.

The Health Officer is empowered to request all persons believed by him to be owners or operators of hazardous waste establishments to, within 30 days, complete a form specifying the person’s name, address and information concerning general hazardous waste management activities. (Ord. 95 § 2, 1983; Ord. 29 § 1, 1981; CC § 68.904)

8.88.180 Permit – Required.

It is unlawful for a person to establish, operate or maintain a hazardous waste establishment without first obtaining a hazardous waste establishment permit from the Health Officer. Owners and operators of permitted hazardous waste establishments shall report in writing any change of business address or change of business name. The report shall be filed with the Health Officer within 30 days of any such change. (Ord. 95 § 2, 1983; Ord. 29 § 1, 1981; CC § 68.905)

8.88.190 Permit – Application.

Every applicant for a permit or license required by PMC 8.88.140 through 8.88.240 shall file with the Department of Health Services a written application on a form prescribed by said department. The application shall state the name and address of the applicant, the description of the property by street and number wherein or whereon it is proposed to conduct the activity for which the permit or license is required, the nature of the permit or license for which application is made, the character of the activity proposed to be conducted and such other information as the Department of Health Services may require. (Ord. 95 § 2, 1983; Ord. 29 § 1, 1981; CC § 68.906)

8.88.200 Fee.

Every applicant for a permit or license required by PMC 8.88.140 through 8.88.240 shall at the time of making application pay the annual fee prescribed for such permit or license. Such annual permit fees shall be established by resolution of the City Council. (Ord. 95 § 2, 1983; Ord. 29 § 1, 1981; CC § 68.907)

8.88.210 Investigation by Department of Health Services.

A. Upon receipt of such application, and the required fee, it shall be the duty of the Health Officer to investigate the matters set forth in such application, and the hazardous waste conditions in and about the place where it is proposed to conduct the activity specified in the application, and if it shall appear to the Health Officer that the statements contained in the application are true, and that the existing hazardous waste conditions in the place specified in said application comply with the provisions of this code and State laws, a permit or license shall thereupon be granted.

B. Such permit or license shall be subject to revocation or suspension by said Health Officer upon a showing satisfactory to said Health Officer of a violation by the holder of such permit, his employee, servant or agent, or any other person acting with his consent or under his authority, of any provision of this code or any law of the State. (Ord. 95 § 2, 1983; Ord. 29 § 1, 1981; CC § 68.908)

8.88.220 Penalty for delinquent payment.

Applicants who are delinquent in filing the application and obtaining the required permit or license shall be subject to payment of the original fee plus late fees. Late fees will be 10 percent of the required fee if delinquent by more than 30 days. Late fees will be 100 percent of the required fee if delinquent by more than 60 days. The imposition of or payment of the penalty imposed by this section shall not prevent the imposition of any other penalty prescribed by this code or any ordinance or prosecution for violation of this code or any ordinance. (Ord. 95 § 2, 1983; Ord. 29 § 1, 1981; CC § 68.909)

8.88.230 Renewal of permit or license – Penalty for delinquency.

A. A permit or license issued pursuant to PMC 8.88.140 through 8.88.240 shall expire on the last day of the month of the one year anniversary month in which the permit was issued and shall be renewed annually. At the time application is made, there shall be paid to the Department of Health Services the required annual fee, which fee is due and payable each year. The annual fee, if unpaid, is delinquent on the first day of the second month after the month in which the permit expires and thereafter a penalty equal to 10 percent of the annual fee shall be added thereto, and shall be collected at the time application for renewal is made.

B. If the annual fee and penalty is not paid the first month it is due there shall be added to and collected with the annual fee, an additional penalty equal to 10 percent of the annual fee for each month or fraction of a month during which the annual fee or any penalty continues to remain unpaid; provided, however, in no event shall the total penalty added to the annual fee pursuant to this section be more than 60 percent of the annual fee. The imposition of, or payment of the penalty imposed by this section, shall not prevent the imposition of any other penalty prescribed by this code, or any ordinance, or prosecution for violation of this code, or any ordinance. (Ord. 95 § 2, 1983; Ord. 29 § 1, 1981; CC § 68.910)

8.88.240 Transfer of permit prohibited.

No permit or license issued pursuant to PMC 8.88.140 through 8.88.240 shall be transferable. (Ord. 95 § 2, 1983; Ord. 29 § 1, 1981; CC § 68.911)