Banning Municipal Code Ch. 8.36 Hazardous Materials

For the purpose of this chapter, the terms listed in this section shall be defined as follows:

"Carcinogen" refers to a substance or agency which causes cancer. For purposes of this chapter, carcinogens are those substances specified on the list developed by the United States Department of Health and Human Services on its Second Annual Report on Carcinogens.

"CAS number" means the unique identification name as assigned by the Chemical Abstracts Service to specific chemical substances.

"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.

"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.

"Disclosure form" means the written request for information prepared pursuant to Section 8.36.050.

"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.

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

"Hazardous materials" means any hazardous substance or hazardous waste as defined in this section, or any material designated pursuant to Section 8.36.020.

"Hazardous substance" means any substance or product:

1. For which the manufacturer or producer is required to prepare a 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 California Labor Code) or pursuant to any applicable federal law or regulations; or,

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

"Hazardous waste" means hazardous or extremely hazardous waste as defined by Sections 25115 and 25117 of the California Health and Safety Code and set forth in Sections 66680 and 66685 of Title 22 of the California Administrative Code.

"MSDS" means a Material Safety Data Sheet prepared pursuant to Section 6390 of the California Labor Code or pursuant to the regulations of the Occupational Safety and Health Administration of the United States Department of Labor.

"Person" means an individual, trust, firm, joint stock company, corporation, partnership, association, city, county, district and the state, or any department or agency thereof.

"Physician" means any person who holds a valid certificate from the state of California to practice the healing arts.

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

"SIC code" means the identification number assigned by the Standard Industrial Classification code to specific types of businesses.

"Use" includes the handling, processing or storage of a hazardous substance.

"User" means any person who uses a hazardous substance or handles a substance waste.

(Code 1965, § 8-82.)

A material may be added to the list of hazardous materials as defined in Section 8.36.010 upon a finding by the fire chief that the material, because of its quantity, concentration or physical or chemical characteristics, poses a significant present or potential hazard to human health and safety or to the environment if released into the community. A material added to the list of hazardous materials pursuant to this section shall be designated as either a hazardous substance or hazardous waste.

(Code 1965, § 8-83.)

A. Any person who uses or handles a hazardous material must annually, during the month of January, submit a completed disclosure form to the Revenue Division. The form shall be accompanied by the appropriate fee as established pursuant to Section 8.36.070.

B. Any person who, during the calendar year, for the first time becomes a user or handler of hazardous materials must submit a completed disclosure form to the revenue division within thirty days of becoming a user or handler. The form shall be accompanied by the appropriate prorated fee as established pursuant to Section 8.36.070. Thereafter, said person shall comply with the provisions of subsection A of this section.

C. The fire department may specify in writing such other time for the submittal of the form and fee as it deems appropriate in individual cases.

D. Any person who fails to file a disclosure form within the time limits set forth pursuant to subsections A through C of this section shall pay such penalty for said late filing as established pursuant to Section 8.36.070. Said penalty shall be submitted with the disclosure form and shall be in addition to any regularly assessed fee.

E. Within fifteen days of any:

1. New use or significant change in the use or handling of a hazardous materials;

2. New use or handling of a previously undisclosed hazardous materials;

3. Change of business address;

4. Change of business ownership;

5. Change of business name;

F. Any person who has filed a disclosure form pursuant to subsections A through C of this section shall submit to the fire department a new disclosure form detailing the new use or handling or other appropriate information.

(Code 1965, § 8-84.)

A. Upon receipt of a disclosure form, the revenue division shall process the fee payment and forward the disclosure form to the fire department.

B. The fire department shall maintain files of all disclosure forms received. Subject to the provisions of Section 8.36.080 relating to trade secrets, these files shall be open to the public during normal business hours. The disclosure forms shall be filed by street and address and cross-referenced by the SIC codes and the CAS numbers or EPA waste stream codes listed on the disclosure form.

C. The fire department shall keep a record of all persons who request access to the hazardous materials disclosure forms. The record shall include:

1. The person's name, address and telephone number, as determined by the showing of appropriate identification;

2. Name and address of the person, business or governmental agency such person represents;

3. Identity of the specific file(s) examined or requested to be copied.

(Code 1965, § 8-85.)

A. The disclosure form shall be prepared by the fire department. The disclosure form shall include, but not be limited to, requests for the following:

1. A copy of the MSDS for every hazardous substance used by the person completing the disclosure form; provided, however, that no such copy need be provided for any hazardous substance for which the fire department has on file a copy of the MSDS;

2. A listing of the chemical name, any common names, and the CAS number of every hazardous substance used by the person completing the disclosure form;

3. The EPA waste stream code of every hazardous waste handled by the person completing the disclosure form;

4. The maximum amount of each hazardous material disclosed in either subsection (A)(2) or (3) of this section which is handled or used at any one time by the user over the course of the year;

5. Sufficient information on how and where the hazardous materials disclosed in subsections (A)(2) and (3) of this section are handled or used by the user to allow fire and safety personnel to prepare adequate emergency responses to potential releases of the hazardous materials;

6. Sufficient information on any releases of the hazardous materials disclosed in subsections (A)(2) and (3) of this section into the air, water or land to permit the city to understand the sources and content of hazardous material releases;

7. The SIC code of the business, if applicable;

8. The name and phone number of the person representing the business and able to assist emergency personnel in the event of an emergency involving the business during nonbusiness hours.

B. Upon request all users must provide information in addition to that required in the disclosure form as follows:

1. To the fire department any information determined by the fire department to be necessary to protect the public health, safety or the environment; and

2. To any physician where the physician determines that such information is necessary to the medical treatment of his or her patient.

(Code 1965, § 8-86.)

The following materials, persons or entities shall be exempt, as specified, from the disclosure requirements under this chapter:

A. A material designated as a hazardous material by this chapter solely by its presence on the Nuclear Regulatory Commission list of radioactive materials shall be exempt from the requirement that a MSDS be submitted with the disclosure form;

B. Hazardous substances contained in food, drug, cosmetic or tobacco products;

C. Any person using or handling less than five hundred pounds or fifty-five gallons per year, whichever is the lesser, of a hazardous material shall be exempted from the requirement of disclosure of that use or handling unless the fire chief has provided notice that the weight or volume limits of this exemption for a specific hazardous material has been lowered in response to public health concerns.

The exemption of this subsection shall not apply to the using or handling of carcinogens except to the extent that such carcinogens are handled or used solely for personal purposes;

D. Hazardous substances contained solely in consumer products packaged for use by and distributed to the general public;

E. Any person, while engaged in the transportation of hazardous materials, including storage directly incident thereto, provided that such materials are accompanied by shipping papers prepared in accordance with the provisions of 49 Code of Federal Regulations, subchapter c;

F. No MSDS shall be required for any hazardous substance for which an MSDS is not available at the time disclosure is required, provided, however, that such MSDS shall be submitted to the fire department within fifteen days after receipt by the user of the MSDS.

(Code 1965, § 8-87.)

The city council shall by resolution establish a schedule of fees to be paid by persons using or handling hazardous materials which is sufficient to cover the costs to the city of administering this ordinance. Said resolution shall include a schedule of penalties to be assessed for the late filing of any disclosure form.

(Ord. 893 (part); Code 1965, § 8-88.)

A. If a user believes that a request for information made by either the disclosure form or otherwise pursuant to this chapter involves the release of a trade secret, the user shall so notify the fire department in writing. As used herein, trade secret shall have the meaning given to it by Section 6254.7 of the Government Code and Section 1060 of the Evidence Code.

B. Subject to the provisions of this section, the fire department shall protect from disclosure any trade secret coming into its possession when requested to do so in writing by the user.

C. Any information reported to or otherwise obtained by the fire department, or any of its representatives or employees, which is exempt from disclosure pursuant to subsection B of this section shall not be disclosed to anyone except:

1. To an officer or employee of the city, the state of California, 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 city and their employees if, in the opinion of the fire chief, such disclosure is necessary and required for the satisfactory performance of a contract for performance of work; or

2. To any physician where the physician determines that such information is necessary to the medical treatment of his or her patient.

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. Any officer or employee of the city, or former officer or employee, who by virtue of such employment or official position has obtained possession of or has access to information, the disclosure of which is prohibited by this section, and who, knowing that disclosure of this information is prohibited, knowingly and wilfully discloses the information in any manner to any person not entitled to receive it, shall be guilty of a misdemeanor. 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. Any physician who has been furnished information or who has obtained information pursuant to subsection (C)(2) of this section and who, knowing that the disclosure of the information is prohibited, knowingly and wilfully discloses the information, shall be guilty of a misdemeanor.

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

G. Upon receipt of a request for the release of information to the public which includes information which the user has notified the fire department is a trade secret pursuant to subsection A of this section, the fire department shall notify the user in writing of said request by certified mail. The fire department shall release the information thirty days after the day of mailing said notice, unless, prior to the expiration of said thirty days, the user institutes an action in an appropriate court for a declaratory judgment that said information is subject to protection under subsection B of this section and/or an injunction prohibiting disclosure of said information to the general public.

H. The provisions of this section shall not permit a user to refuse to disclose information required to be disclosed pursuant to this chapter.

(Code 1965, § 8-89.)