Berkeley Municipal Code Ch. 11.62 Regulation of Sale, Use and Recycling of Products That Utilize…

The council finds and declares as follows:

A. Available scientific evidence indicates that Chlorofluorocarbons ("CFCs") and Halons, when discharged into the environment, deplete the earth’s protective ozone layer, allowing increased amounts of ultraviolet radiation to penetrate the earth’s atmosphere, thereby posing a long-term danger to human health, life and the environment by increasing such harms as skin cancers, cataracts, suppression of the immune system, damage to crops and aquatic life, and related harms.

B. The release of Halons in testing fire extinguishing systems is a primary source of the release of Halons into the earth’s atmosphere; and, while there is currently no economically feasible technology available as a substitute for the Halon used in certain electrical equipment and industrial fires, many acceptable substitutes are available for household fire extinguishers using Halon.

C. CFCs, marketed under the name "Freon," are widely used in refrigeration and air conditioning systems but there is currently no economically feasible technology available as a substitute for such use of Freon. However, the recapturing and recycling of Freon from auto air conditioning units is feasible and available; such recapture and recycling alone could eliminate nearly twenty percent of all CFC chemicals used nationally.

D. The Montreal Protocol On Substances That Deplete The Ozone Layer (an international pact), which was ratified by the United States on April 21, 1988 and became effective January 1, 1989, calls for reductions in the production, importation and exportation of CFCs to fifty percent of the worldwide 1986 levels by 1998, for a freeze on the production of Halon at 1986 levels beginning January 1, 1992, a phaseout of CFCs by 2000, a phaseout of Trichloroethane (TCAs) by 2005, with up to ten years longer for developing countries.

E. In light of the current and future limitations on the production of CFCs both nationally and internationally, the development and utilization of environmentally safe alternatives to CFCs at this time will create a competitive advantage to those businesses electing to utilize such alternatives prior to the effective date of any comprehensive international, federal, state or local regulation banning the use of CFCs and Halons.

F. The release of CFCs and Halons into the atmosphere is a global danger to the environment; thus, any reduction in the release of said materials within the City of Berkeley will reduce the global danger and will result in a benefit to the overall health and safety of the public inside and outside the City of Berkeley.

G. Recent discoveries have shown that the reductions in CFC levels set forth in the Montreal Protocol may be insufficient to remedy the global health and safety risk created from the release of CFCs and Halons.

H. The City of Berkeley encourages the research and development of environmentally safe alternative technologies and products to replace the use of CFCs and Halons.

I. The City of Berkeley supports all international, federal and state bans on uses of CFCs; however, until such bans have been adopted by the appropriate agencies, responsible action on the part of the City of Berkeley is necessary to reduce CFC and Halon use in order to promote the long-term health, safety and welfare of the general public, and the environment.

J. To protect the environment, and the health, safety and welfare of its citizens, the City of Berkeley herein, by this chapter intends to prohibit the use of ozone-depleting compounds in manufacturing, production, cleansing, degreasing or sterilization activities, to prohibit the sale and use of certain products made of or with ozone-depleting compounds, to require the recapture and recycling of freon and other ozone-depleting compounds, and to significantly reduce the release of Halons into the earth’s atmosphere. (Ord. 6031-NS § 1, 1991)

A. "Chlorofluorocarbons" or "CFCs" means the family of substances containing carbon, fluorine and chlorine, and having no hydrogen atoms and no double bonds, and which includes, without limitation, Chlorofluorocarbon ("CFC") -11, CFC-12, CFC-113, CFC-114 and CFC-115. Examples of products containing or utilizing chlorofluorocarbons are "Freon" used in air conditioning and refrigeration units, degreasers and solvents used in the cleaning of metals and electronic components and rigid and flexible foam used as packaging material and insulating material, and flexible foam used in car seats, bedding and furniture.

B. "Hydrochlorofluorocarbons" or "HCFCs" means the family of substances containing carbon, fluorine, chlorine and hydrogen and having no double bonds, and which includes, without limitation, Hydrochlorofluorocarbon ("HCFC") -22 and R-22. Examples of products containing or utilizing HCFCs are refrigerants used in air conditioners and refrigerators, and degreasers used to clean electronic components.

C. "Halon" means any fully halogenated carbon compound containing bromine, chlorine, or fluorine, and includes, without limitation, Halon-1301, Halon-1211 and Halon-2402.

D. "Ozone-depleting compound" means any CFC, HCFC, Halon, the chemical compounds of methyl chloroform and carbon tetrachloride and any other chemical compound hereafter designated by the City Council by amendment to this ordinance, as being an "ozone-depleting compound."

E. "Rigid or flexible foam containing or utilizing an ozone-depleting compound" means any rigid or flexible foam, such as styrofoam or thermoplastic foam, building insulation, or any other rigid or flexible foam that contains within any closed cell any ozone-depleting compound or that was produced by using an ozone-depleting compound in any manner during the manufacturing process; provided, however, that use of CFC-processed food packaging is governed by Berkeley Municipal Code Chapter 11.58.

F. "Person," "anyone" means any natural person, firm, corporation, partnership or other organization or group however organized.

G. "Establishment" means any domestic or foreign corporation, firm, association, syndicate, joint stock company, partnership of any kind, joint venture, club, common law trust, society or individual engaged in any profession, trade, occupation and any and every kind of calling carried on for profit or otherwise within the City, including any governmental entity or charitable organization.

H. "Retail establishment" means any establishment primarily engaged in the business of selling any goods, wares or merchandise for any purpose other than resale in the regular course of business.

I. "Licensed health care facility" means any health care facility licensed either by the State of California Department of Health Services, pursuant to the provisions of the Health and Safety Code, or by the United States Department of Health and Human Services.

J. "Supplier" means anyone selling, or otherwise supplying rigid or flexible foam containing or utilizing an ozone-depleting compound. (Ord. 6031-NS § 2, 1991)

A. No establishment shall use any ozone-depleting compound in any process or activity involving the manufacture, production, cleansing, degreasing or sterilization of any substance or product, except as otherwise provided in this section.

B. Exemptions:

1. This section shall not apply to the study and/or research of the effects of the release of ozone-depleting compounds into the environment and/or the development of alternative technologies, where such compounds are necessary for conducting such study and research.

2. This section shall not apply to any ozone-depleting compound used as a coolant in any refrigeration or air conditioning unit or system.

3. Subsection A of this section shall not apply to any licensed health care facility operated either for profit or not for profit, including any medical research conducted at such facility, nor to manufacturers of any "drug" and/or any medical "device" as the terms "drug" and "device" are defined in Title 21 U.S.C. Sections 321(g)(1) and 321(h) of the Federal Food, Drug and Cosmetic Act, but only if the manufacturer is required to comply with the Good Manufacturing Practice requirements adopted pursuant to Title 21 U.S.C. Section 360j(f). This exemption is valid until such time as safe and effective alternatives to the current use of ozone-depleting compounds by the licensed health care facility or manufacturer of drugs and/or medical devices are available, as determined by the City and approved by council. All manufacturers of drugs and/or medical devices that utilize ozone-depleting compounds as sterilants shall adopt and implement a recycling system whereby any such ozone-depleting compound used by such manufacturers shall be recaptured and recycled.

4. This section shall not apply to any establishment manufacturing a product or component product under contract with any branch of the United States Armed Forces for which applicable military specifications require the use of an ozone-depleting compound. Such establishment shall adopt and implement a recycling system whereby any ozone-depleting compound used as a solvent shall be recaptured and recycled. (Ord. 6031-NS § 3, 1991)

A. No establishment shall package any product with rigid or flexible foam containing or utilizing an ozone-depleting compound.

B. As to any rigid or flexible foam packaging obtained after the effective date of this chapter, each establishment shall obtain from each of its suppliers a written statement signed by the supplier, or by a responsible agent of the supplier, stating that the supplier will supply no rigid or flexible foam packaging containing or utilizing an ozone-depleting compound to that establishment, that the supplier will note on each invoice for rigid or flexible foam packaging that the packaging covered by the invoice does not contain or utilize an ozone-depleting compound, and the identity of the packaging’s manufacturer.

C. All contracts between an establishment and a supplier entered into after the effective date of this chapter shall include provisions that the supplier will supply no rigid or flexible foam packaging containing or utilizing an ozone-depleting compound, that the supplier will state on each invoice for rigid or flexible foam packaging that the packaging does not contain any ozone-depleting compound, and that failure to comply with such provisions shall constitute a material breach of the contract.

D. Establishments shall retain each supplier’s written statement for one year from the date of receipt from that supplier of any rigid or flexible foam packaging.

E. Packaging required to be purchased under a contract entered into prior to the effective date of this chapter is exempt from the provisions of this chapter. (Ord. 6031-NS § 4, 1991)

In the construction of any building or structure (commercial, industrial, residential or other), no person shall install any building insulation that contains or utilizes an ozone-depleting compound. Simultaneous with the filing of a building permit application, the applicant shall submit a written verification certifying that the building insulation to be installed does not contain an ozone-depleting compound. (Ord. 6031-NS § 5, 1991)

A. All establishments that manufacture, repair, service or maintain any refrigeration or air conditioning unit or system shall adopt and implement a recycling system whereby the ozone-depleting compound used as a coolant in such refrigeration or air conditioning unit or system will not be released into the environment, but will be recaptured, reused and recycled. The unit used for such recapture and recycling shall meet the standards adopted by the Society of American Engineers and shall be approved by Underwriters Laboratory; and all persons operating such units shall be trained in their use.

B. No establishment shall sell any ozone-depleting compound for use as a coolant in a refrigeration or air conditioning unit or system to any other establishment that does not possess a recycling system.

C. No establishment shall dispose of or shall cause the disposal of any refrigeration or air conditioning unit or system either in conjunction with the disposal of another product, or in any other manner, without first recapturing and recycling any ozone-depleting compound used as a coolant in said unit or system, or without first ensuring such coolant will be recaptured and recycled.

D. No establishment shall sell Freon or any other ozone-depleting compound in containers intended for use by individuals for "do-it-yourself" refrigeration or air conditioning unit repair. (Ord. 6031-NS § 6, 1991)

No establishment shall sell any ozone-depleting compound in containers intended for use by individuals for any purpose. (Ord. 6031-NS § 7, 1991)

A. Other than testing or training as may be required by any statute, rule or regulation mandating the release of Halon, no person shall release Halon in the training of personnel or in the testing of any fire extinguishing system unless the owner or lessee of the premises has provided at least ten days’ notification to the City of its intent to do so.

B. No retail establishment shall sell any portable fire extinguishing system or unit in which Halon is used as the extinguishing agent.

C. All establishments that repair, service or perform maintenance on any portable fire extinguishing system or unit shall adopt and implement a reclamation system whereby any Halons used as the extinguishing agent in any such system or unit shall not be released into the environment, but shall be recaptured and recycled. (Ord. 6031-NS § 8, 1991)

A. Any person or establishment may apply for an exemption from any section or subsection of this chapter upon submittal of an application, payment of the appropriate processing fee, which fees shall be in accordance with a fee schedule adopted by resolution of the City Council, and a showing that no technically or economically feasible alternative for such person’s or establishment’s use of an ozone-depleting compound is currently available, and a plan and timeline for how such person or establishment will comply with this chapter in the future.

B. The City Manager shall make a recommendation to the City Council as to whether the exemption should be granted or denied. The City Council may either grant or deny the application, or take any other steps it deems necessary prior to granting or denying the application.

C. The following factors are among those to be considered in submitting and considering any application for an exemption: (1) the technical, practical and economic viability of the alternative; (2) the health, safety and environmental impact of the alternative; (3) the length of time for which the exemption is sought and the length of time needed before a technically and economically feasible alternative can be implemented; (4) the measures the applicant has already taken or plans to take, and a timeline of such plans, to minimize and/or eliminate the release of an ozone-depleting compound, including whether and when a reclamation and recycling system has been or is to be implemented, as well as the effectiveness of any such system; (5) the hardship that will result to the applicant in the event the exemption is not granted; (6) whether the applicant’s actions are consistent with the spirit and intent of this chapter. (Ord. 6031-NS § 9, 1991)

All statements, documents and certificates required by this chapter shall be made available for inspection by the City Manager or their designated representative. It shall be unlawful for anyone having custody of such documents to fail or refuse to produce such documents upon request by the City Manager or their designated representative. (Ord. 6031-NS § 10, 1991)

All establishments shall state that they are in compliance with this chapter on their annual business license renewal forms. (Ord. 6031-NS § 11, 1991)

The City Manager is authorized to promulgate regulations and to take any and all other actions reasonable and necessary to enforce this chapter, including, but not limited to, inspecting any establishment’s premises to verify compliance. (Ord. 6031-NS § 12, 1991)

A. Anyone violating or failing to comply with any of the requirements of this chapter shall be guilty of an infraction as set forth in Chapter 1.20 of the Berkeley Municipal Code.

B. Any violation of subsection 11.62.030A or 11.62.070A of this chapter, and any failure to comply with the recapture and recycling requirements of subsections 11.62.030B, 11.62.060A, 11.62.060C or 11.62.070C, is hereby declared to be a nuisance.

C. The City Attorney may seek legal, injunctive, or other equitable relief to enforce this chapter.

D. The remedies and penalties provided in this section are cumulative and not exclusive. (Ord. 6031-NS § 13, 1991)