California City Municipal Code Ch. 7 Hazardous Materials Disclosure

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

(b) The people who live, visit and work in the City have a right and need to know of the use and dangers of hazardous materials in the community in order to plan for and respond to potential exposure to such materials.

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

(d) It is the intent of the Council to recognize the community's right and need for basic information on the use, handling, storage, and disposal of hazardous materials in the City and that it establish an orderly system for the provision of such information.

(e) It is further the intent of the Council that the system of disclosure set forth herein shall provide the information essential to firefighters, health officials, planners, elected officials, workers and their representatives, 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.

The following terms are defined for the purpose of this Chapter:

(a) "Business" means and employer, self-employed individual, trust, firm, joint stock company, corporation, partnership, association, city, county district, and the state, or any department or agency.

(b) "Carcinogen" means a substance which:

(1) The International Agency for Research on Cancer states that there is sufficient evidence of carcinogenicity in animals or that there is a potential of human carcinogenicity, or that the substance is a confirmed human carcinogen; or

(2) The National Cancer Institute has found an animal bioassay that there is positive evidence of carcinogenesis in animals or humans.

(c) "Case number" means the unique identification number assigned by the Chemical Abstracts Service to specific chemical substances.

(d) "Chemical name" means the scientific designation of a substance in accordance with the nomenclature system developed by the International Union of Pure and Applied Chemistry or the system developed by the Chemical Abstracts Service.

(e) "Common name" means any designation or identification such as a code name, code number, trade name, or brand name used to identify a substance other than by its chemical name.

(f) "Disclosure form" means the written request for information prepared by the Fire Chief or designee, pursuant to this Chapter.

(g) "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.

(h) "Handle" means to use, generate, process, produce, package, treat, store, or dispose of a hazardous substance, waste, or material in any fashion.

(i) "Hazardous material" means any hazardous substance, hazardous waste as defined in this Ordinance, or any material designated pursuant to this Chapter.

(j) "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 Substance or product pursuant to 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 regulation.

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

(3) Which is known by the business in which it is found to present a significant risk of personal injury or illness as a result of foreseeable use, handling, release, exposure or contamination.

(k) "Hazardous waste" means hazardous or extremely hazardous waste as defined by Sections 25115 and 25117 of the California Health and Safety Code.

(l) "MSDS" means a Material Safety Data Sheet prepared pursuant to Section 6390 of the California Labor Code. For any hazardous substance for which a Material Safety Data Sheet is not required to be prepared pursuant to Section 6390 of the California Labor Code, a Material Safety Data Sheet which contains the information specified in Section 6391 of the California Labor Code shall satisfy the definition of an MSDS under this Ordinance.

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

(n) "Reproductive toxin" means any substance or agent which can affect reproductive functions causing congenital defects or impairments, spontaneous abortions, impaired spermatogenesis, reduced fertility and/or intrauterine growth retardation which is included in the Appendix compiling human and animal evidence for adverse reproduction affects of chemicals and chemical processes in Chemical Hazards to Human Reproduction by Ian T. Nesbit and Nathan J. Karch, Noyes, 1983, or the current revision thereof, and for which an MSDS is required.

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

(p) "Use" means the handling, processing, or storage of a hazardous substance.

(q) "User" means any business which uses or handles a hazardous substance or a hazardous waste.

(a) A material may be added to the list of hazardous materials upon finding by the Fire Chief or designee, the material satisfies the following criteria: 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.

(b) A material added to the list of hazardous materials pursuant to subsection (a) shall be designed as either a hazardous substance or a hazardous waste by the Fire Chief or designee.

(a) A business which uses or handles a hazardous material must annually submit a completed disclosure form to the Fire Chief or designee.

(b) Within fifteen (15) days of any:

(1) Significant change in the use or handling of a hazardous material, including a significant increase in the quantity of a previously disclosed hazardous material (for the purposes of this Ordinance, a significant increase means an increase of 50% or more of such hazardous material);

(2) Use of handling of a previously undisclosed hazardous material;

(3) Change of business address;

(4) Change of business ownership; or

(5) Change of business name.

The user shall submit to the Fire Chief or designee, a disclosure form detailing the new use or handling or other appropriate information.

(a) Upon receipt of a disclosure form, the Fire Chief or designee, shall review each disclosure form and shall either accept the disclosure form if it provides complete and adequate information needed for the protection of safety and health or of the environment, or return the form to the user describing what additional information must be included in the form before it may be accepted.

(b) The Fire Chief or designee, shall maintain files of all disclosure forms received, or copies thereof, for at least three (3) years, and shall index the disclosure forms by street address and/or parcel number, and shall cross reference them by SIC number(s) and the Case number(s) or EPA Waste Stream Code(s) listed on the disclosure form.

(c) The Fire Chief or designee, may, for the purposes related to this Ordinance, undertake actions including, but not limited to, the maintenance and verification of the files relating to the Hazardous Materials Disclosure Ordinance, the acquisition of additional information on hazardous materials and their handling, public education regarding hazardous materials, and the promotion of recycling of wastes and of compliance with this Ordinance.

(d) Subject to the provisions of this chapter, relating to trade secrets, the disclosure form will be publicly available according to the following procedures:

(1) Written application for the information shall be submitted to the Fire Chief or designee. Said application shall include the applicant's name, address, and telephone number. The written application shall also include the identification of the specific file requested for disclosure. The applicant shall declare on the application if he or she is interested in disclosure of trade secret information.

(2) The information requested shall be provided within twenty (20) working days after the submission of the application, except for trade secret information, which shall be subject to the provisions of this Chapter.

(a) The disclosure form shall be prepared by the Fire Chief or designee. 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 or handled by the business completing the disclosure form.

(2) A listing of the chemical name, any common names, and the Case number of every hazardous substance used or handled by the business completing the disclosure form.

(3) The EPA Waste Stream Code of every hazardous waste handled by the business completing the disclosure form.

(4) Information on the method of storage used for the materials disclosed herein.

(5) The maximum amount of each hazardous material disclosed in either subdivision (2) or (3) which is used or handled at any one time by the user over the course of the year.

(6) Sufficient information on how and at what location within the business the hazardous material disclosed in subdivisions (2) and (3) are used or handled by the user to allow fire and safety personnel to prepare adequate emergency responses to potential releases of the hazardous materials. This information shall include a map of the business establishment, drawn to scale, and in a format and detail that the Fire Chief or designee, determines to be legible and understandable. Said map will not be made available to the public.

(7) Sufficient information on any releases of the hazardous material disclosed in subdivisions (2) and (3) into the air, water, sewers, or land to permit the community to understand the sources and content of hazardous material releases.

(8) The SIC code of the business, if applicable.

(9) 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 non-business hours.

(b) Upon request, all users must provide information beyond that specifically requested in the disclosure form to the Fire Chief or designee, upon the determination 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 this chapter.

(a) A substance designated as a hazardous substance by this Chapter solely by is 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 solely in consumer products packaged for distribution to, and use by, the general public shall be exempt from disclosure under this Chapter unless the Fire Chief or designee, has provided notice that the storage of certain quantities of specified consumer products requires disclosure under this Chapter in response to public health concerns.

(c) Beginning one (1) year after the enactment of this Chapter, any business using or handling less than eight (8) pounds, or one (1) gallon, or two hundred (200) cubic feet in the gaseous state at standard temperature and pressure, per month, whichever is the lesser, of a product for formulation containing a hazardous material, shall be exempted from the requirements of a disclosure of that use or handling unless:

(1) The Fire Chief or designee, has provided notice that it has lowered the weight or volume limits of this exemption for a specific hazardous material in response to public health concerns; or

(2) The substance is a carcinogen or reproductive toxin, as defined in this Chapter.

(d) Use and handling of petroleum products not elsewhere classified and/or used exclusively in the transportation industry shall be exempt from disclosure under the provisions of this Chapter.

(a) Within two (2) months of the enactment of this Chapter, the Fire Chief or designee, shall prepare a report for the Council describing the anticipated City Cost of receiving, maintaining, providing education and training, and making available to other City and County agencies, people employed in the City and their representatives, and county residents the information covered by the Hazardous Materials Disclosure Ordinance. The report shall include the estimated cost to the Fire Chief or designee, of obtaining from a manufacturer or producer of a hazardous substance an MSDS in the event that a user fails to supply the appropriate MSDS with the disclosure form, or of obtaining information to supplement that provided in the MSDS if such information is deemed necessary by the Fire Chief or designee to provide for the safety and health of the community.

(b) Upon receipt of the report and comment from interested parties, the Council will establish a schedule of fees to be paid by businesses using or handling hazardous materials which is sufficient to cover the costs to the City of administering this Chapter.

(a) A person who violates this Chapter, or who fails to comply with any order made under this Chapter by competent authority, where such violation or failure is not intentional and has not resulted in nor significantly contributed to personal injury, shall be deemed guilty of an infraction and such person shall be guilty of a separate offense for each day or portion thereof during which any such violation or lack of compliance is caused or permitted to continue.

(b) A person who intentionally violates this Chapter or negligently violates this Chapter where such negligence has resulted in or significantly contributed to personal injury, or who intentionally fails to comply, or who negligently fails to comply when such failure has resulted in or significantly contributed to personal injury, with any order made thereunder by competent authority shall be guilty of a misdemeanor and shall, upon conviction, be subject to a fine of not more than $500.00 or by imprisonment in jail for more than six (6) months or by both such find and imprisonment. A conviction for any offense under the provisions of this Chapter shall not excuse the violation or authorize its continuance and the person or persons convicted of such offense shall be required to correct or remedy said violation with reasonable diligence. Each day that a condition prohibited to be maintained or continued shall constitute a separate and distinct offense.

(a) If a user believes a request for information made by either the disclosure form or pursuant to this Chapter involves the release of a trade secret, the user shall provide the information nonetheless and shall notify the Fire Chief or designee, in writing of the information which the user believes involves the release of a trade secret. 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. The Fire Chief or designee, shall treat this information as a trade secret upon the user establishing that the information describes a manufacturing process or the percentage of a chemical substance in a mixture which is unknown to competitors.

(b) The information for which trade secret protection is sought shall be submitted to the Fire Chief or designee, on a separate form, clearly and conspicuously marked as containing trade secret information.

(c) If the claim for trade secret protection under the provisions of this section is denied by the Fire Chief or designee, the user shall be notified of this denial within sixty (60) days of submission of the claim. The user may request a review of the denial of the claim of trade secrecy and may submit further information in support of the claim within thirty (30) days after receipt of the denial to City Attorney who shall review the claim of trade secrecy within thirty (30) days after receipt of the request for review and shall notify the user of the granting or continued denial of the claim. No information for which a claim of trade secrecy has been made shall be disclosed to the public prior to ninety (90) days after submission of the claim, or one hundred twenty days after submission of the claim if a review of the claim has been requested by the user.

(d) Where a claim for trade secret protection is granted under this section, the disclosure form to be publicly disclosed shall indicate the number of materials about which information is claimed to be trade secret, the maximum quantity, and, if the user has provided the information pursuant to this Chapter, the expected average quantity of materials used or handled at the facility.

(e) Subject to this Chapter, the Fire Chief or designee, shall protect from disclosure any and all trade secrets coming into its possession, as defined in Section 6254.7 of the Government Code and Section 1060 of the Evidence Code, when requested in writing by the user.

(f) Information reported to or otherwise obtained by the Fire Chief or designee, which is exempt from disclosure pursuant to this Section, shall not be disclosed to anyone except:

(1) An officer or employee of the City, the County of Kern, the State of California, or the United States of America, in connection with the official duties of that officer or employee under the law of the protection of health, or to contractors with the City or County of the Fire Chief or designee, disclosure is necessary and required for the satisfactory performance of a contract for performance of work, or to protect the health and safety of the employees of the contractor; or

(2) To any physician or registered nurse where the physician or registered nurse certifies that such information is necessary to the medical treatment of his or her patient. Said certification shall be in writing to the Fire Chief or designee.

(g) For the purpose 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.

(h) Information claimed as a trade secret must be disclosed to a physician or registered nurse by the Fire Chief or designee. No physician or registered nurse who obtains possession of or access to this information, and, who knows that the unauthorized disclosure of this information is prohibited, shall disclose this information in any manner to any person not entitled to receive it.

(i) No officer or employee of the City for former officer or employee who, by virtue of such employment or official position, has possession of or has access to information the disclosure of which is prohibited by this section, and who knows that the unauthorized disclosure of this information is prohibited, shall disclose this information in any manner to any person not entitled to receive it. For the purposes of this section, a contractor with the City and employee of such contractor, who has been furnished information as authorized by this section, shall be considered to be an employee of the City.

(j) 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.

(k) Upon receipt of a request for the release of information to the public which includes information which the user has notified the Fire Chief or designee, is a trade secret pursuant to this section, the Fire Chief or designee, shall notify the user in writing of said request by certified mail. The Fire Chief or designee shall release the information forty-five (45) days, the user institutes an action in appropriate court for a declaratory judgment that information is subject to protection as a trade secret or for an injunction prohibiting disclosure of said information to the general public. The use and the public requesting the information shall be considered the real parties in interest in any such action and the City, if named, will be a disinterested party.

(l) The provisions of this section shall not permit a user to refuse to disclose information required pursuant to this Chapter to the Fire Chief or designee.

(a) The disclosure of hazardous materials information pursuant to the provisions of this Chapter shall not affect other liability or responsibility of a business with regard to safeguarding the health and safety of an employee or other person(s).

(b) The degree of protection required by this Chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. The standards set forth herein are minimal standards and this Chapter does not imply that compliance will ensure that there will be no improper release of hazardous materials. This Chapter shall not create liability on the part of the City, or any officer or employee thereof, for any damages that result from reliance on this Chapter or any administrative decision lawfully made thereunder. Persons using or handling 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 as necessary or desirable to ensure that there is no improper release of hazardous materials.