Berkeley Municipal Code Ch. 11.50 Berkeley Hazardous Waste Importation Regulation Act

This chapter shall be known and may be cited as the Berkeley Hazardous Waste Importation Regulation Act. (Ord. 6287-NS § 1 (part), 1995; Ord. 6034-NS § I, 1991)

The council of the City of Berkeley find the passage of this act is necessary in order to protect and defend the health and safety of our citizens and posterity by regulating the importation, storage for incineration, treatment or storage for treatment, or transfer of hazardous wastes and requiring that any hazardous waste facility approved meet the criteria defined herein below in Section 11.50.040 and Section 11.50.050; and find that, unlike with other commodities, importation, collection, aggregation, and/or disposal of large volumes of hazardous waste (i.e. explosive, reactive, low level radioactive, and toxic waste) in a densely populated area like Berkeley, subjects the populace to unusual and significant risks to health and safety. It is not the purpose of this act to regulate facilities whose primary purpose is to recycle manufactured goods which may contain components that constitute hazardous waste. It is the intention of this act to regulate only facilities whose primary purpose is to treat, store, transfer, or dispose of imported hazardous wastes. (Ord. 6287-NS § 1 (part), 1995; Ord. 6034-NS § II, 1991)

All substances commonly known as "toxic wastes," "chemical wastes," and/or "hazardous wastes" (defined herein below in Section 11.50.050) which originate and/or are generated outside the City limit of the City of Berkeley shall not be: (a) transferred or treated; (b) stored for transfer or treatment; or (c) otherwise disposed of and/or stored within the City limits of the City of Berkeley unless a facility meeting all the standards set forth herein in Section 11.50.040 is approved and constructed within the City limits. (Ord. 6287-NS § 1 (part), 1995; Ord. 6034-NS § III, 1991)

A. Siting criteria. All proposed facilities, the primary purpose of which is the importation of hazardous waste for: (a) transfer; (b) storage; (c) disposal by other means; and/or (d) treatment, such as by incineration, shall not be approved unless the following criteria are met:

1. Facilities for ignitable, explosive, or reactive waste must have a minimum setback of two thousand feet from the nearest residential area.

2. Facilities for other types of hazardous waste must have a minimum setback of five hundred feet from any legal residence.

3. Facilities must have a minimum setback of five thousand feet from any immobile populations including, but not limited to, schools, day care centers, homeless shelters, hospitals, and convalescent homes.

4. Treatment facilities may be built in areas subject to one hundred-year flooding if protected by engineered solutions (such as berms, raising above flood levels, etc.) and if they meet all other flood protection requirements, including consideration of the expected future rise in sea level. Access roads leading to hazardous waste facilities must be protected from one hundred year flood events.

5. Facilities shall not be located in wetlands, such as saltwater, fresh water, and brackish marshes, swamps and bogs inundated by surface or groundwater with a frequency to support, under normal circumstances, a prevalence of vegetative or aquatic life which requires saturated soil conditions for growth and reproduction.

6. Facilities shall not be located within critical habitat areas of endangered species.

7. Access to hazardous waste facilities through residential areas shall be prohibited. Access may be allowed on roadways that are adjacent to residential areas where residential frontage is minimal, where there are physical barriers separating residences from the road, or where there are adequate residential setbacks from the road.

8. Facilities near rivers, streams, creeks, lakes, lagoons, etc. must have engineered structural design features to ensure that migration of waste will not occur (e.g., spill containment and monitoring devices).

9. Facilities should be located so as to minimize any additional noise impacts on the surrounding area. Mitigation measures to reduce noise from facility equipment or traffic may be required.

10. Twenty-four hour access for emergency services such as spill response, fire and ambulance, must be available for the life of the facility and shall be a condition of land use approval.

11. Conditional use permits for hazardous waste facilities shall be subject to annual review to determine if any modifications to specified conditions need to be made. This will help to insure that the facility is operated in an environmentally sound manner consistent with the best technology available to the industry and will remain compatible with adjacent land uses.

12. For every conditional use permit application, an environmental impact report (EIR) shall be completed and certified.

B. Baseline testing. The proposed site and surrounding vicinity within a radius of one-half mile shall have been monitored by an independent testing consultant hired by the developer from a list supplied by the City toxics management program for air quality for a period of three hundred sixty-five days. Water quality, ground water contamination and soil contamination on site and on any publicly-owned property immediately adjacent to the site shall be tested and a report of the findings shall have been submitted to the City prior to the certification of the EIR. In addition, data from other published EIR’s or use permits for projects on private property in the general vicinity of the proposed location shall be submitted with the report. No facility shall be approved unless all federal, state, and local environmental standards have been met.

C. Findings. All of the following findings must be made before any conditional use permit may be approved for a hazardous waste treatment, transfer, or storage facility:

1. All potential environmental impacts of the project shall have been adequately mitigated.

(a) The determination by the City of the adequacy of the mitigations required for any project shall be final, except that no monetary mitigations shall be accepted in lieu of substantive mitigations that could potentially reduce risks to the population.

2. The project shall be consistent with the City’s general plan when the application is accepted as complete.

3. Alternative locations identified in the project EIR or county plan shall have been adequately considered and found not feasible.

(a) Before making a finding of infeasibility for alternative sites identified in the EIR or county plan, sufficient evidence of infeasibility shall have been considered. Assertions of infeasibility unsubstantiated by evidence in the record shall not suffice.

4. The project shall be consistent with statewide, regional, and county hazardous waste management policies, goals, and objectives. (Ord. 6287-NS § 1 (part), 1995; Ord. 6034-NS § IV (part), 1991)

A. "Hazardous waste." The Hazardous Waste Control Law of California defines hazardous wastes as those wastes which "cause increased mortality, serious irreversible illness or incapacitating illness or which pose substantial hazards to human health or the environment." Hazardous waste subject to this act shall include those defined by current Section 25117 of the Health and Safety Code of the State of California and/or as defined by current regulations adopted pursuant to Section 3001 of the Resource Conservation and Recovery Act, and as amended (P.L. 94-580), and/or any additional hazardous wastes defined by substantially similar laws and regulations enacted or adopted hereafter.

B. "Manufactured goods" shall mean goods which are commonly sold in units and not chemicals which are commonly sold by weight or volume. (Ord. 6287-NS § 1 (part), 1995; Ord. 6034-NS § V, 1991)

Hazardous waste treatment, transfer, storage, or disposal facilities in existence on or before the date of enactment of this chapter are exempted from compliance with the provisions of this act, except that, any increase of gross floor area or capacity shall require a new conditional use permit and the new facilities shall be required to meet all applicable standards contained herein. (Ord. 6287-NS § 1 (part), 1995; Ord. 6034-NS § VI, 1991)

Exemption of household hazardous waste collection and disposal programs.

Hazardous waste treatment, transfer, or storage associated with household hazardous waste collection and disposal programs (including household hazardous waste events) sponsored by the City and/or the Alameda County Waste Management Authority, are exempted from compliance with the provisions of the act. (Ord. 6287-NS § 1 (part), 1995; Ord. 6259-NS § 1, 1994)

Exemption of recyclers of manufactured goods containing hazardous waste.

Facilities whose primary purpose is to recycle manufactured goods (as defined in Section 11.50.050 above) containing materials or components that constitute hazardous waste under the act are exempted from compliance with the provisions of this act. Nothing in this section shall be construed to exempt a facility from any other applicable laws, ordinances, codes or regulations of any federal, state, county or local governmental agency. (Ord. 6287-NS § 2, 1995)

Exemption of facilities that are permitted under standardized permit under Section 25200 et seq. of Chapter 6.5 of the California Health and Safety Code.

Facilities permitted under a standardized permit pursuant to Section 25200 et seq. of the California Health and Safety Code will be exempted under this act. Facilities so exempted will still be regulated under all applicable federal, state, county and local laws. (Ord. 6305-NS § 1, 1995)