El Dorado County Municipal Code Ch. 8.44 Asbestos and Dust Protection

For the purposes of this chapter, the following definitions shall apply, except where the context clearly indicates a different meaning:

ARB Test Method 435 means the test method specified in Title 17, California Code of Regulations, Section 94147, or any replacement test approved by the State.

Adequately wet means to sufficiently mix or penetrate with water to reasonably prevent the release of particulates into the ambient air.

Aggregate materials means a mixture of mineral fragments, sand, gravel, rocks or similar minerals.

Asbestos or asbestos minerals means the following hydrated minerals: chrysotile (fibrous serpentine), crocidolite (fibrous riebeckite), amosite (fibrous cummingtonite-grunerite), fibrous tremolite, fibrous actinolite, and fibrous anthophyllite.

Department means Air Quality Management District.

Director means the Air Pollution Control Officer or his or her designee.

Grading means all surface disturbance, including all cuts and fills, unless specifically exempt under Chapter 110.14.

Permissible asbestos content level means a concentration equal to or less than that set forth in C.C.R. Title 17, Section 93106(a)(5) or any successor regulation or statute.

Person includes an individual, trust, firm, joint stock company, business concern, partnership, limited liability company, association, and corporation, including, but not limited to, a government corporation. The term "person" also includes any city, county, district, commission, the State or any department, agency, or political subdivision thereof, any interstate body, and the Federal Government or any department or agency thereof to the extent permitted by law. The term "person" also includes a project proponent and any of its contractors and subcontractors.

Potential Asbestiform Minerals Map means areas of the County designated as Serpentine Rock (SaF and DeE) in the Soil Survey of El Dorado County, California, issued in April 1974 by the United States Department of Agriculture, Soil Conservation Service and Forest Service in cooperation with the University of California Agricultural Experiment Station, incorporated herein by reference and on file with the Department, shall at a minimum comply with the requirements set forth in this chapter. The Potential Asbestiform Minerals Map may be revised from time to time by the Director in light of new information.

Receipt means any written acknowledgment that a specified amount of serpentine material was received, delivered, or purchased. Receipts include, but are not limited to, bills of sale, bills of lading, and notices of transfer.

Road surface means the traveled way of a road and any shoulder which extends up to ten feet from the edge of the traveled way.

Rock containing asbestos materials means any soil or rock that contains any amount of asbestos minerals.

Serpentine means any form of hydrous magnesium silicate minerals, including, but not limited to, antigorite, lizardite, and chrysotile.

Serpentine material means any material that contains at least ten percent serpentine as determined by a registered geologist.

Surface mining operation means a surface mining operation subject to regulation under the Surface Mining and Reclamation Act of 1975, Public Resources Code § 2700 et seq., and by Chapter 8.36.

Surfacing means the act of covering any surface used for the purposes of pedestrian, vehicular, or non-vehicular travel, such as road surfaces, road shoulders, streets, alleys, lanes, driveways, and parking lots, including appurtenant improvements such as landscaping and trails, playgrounds, squares, plazas and fairgrounds. Where serpentine material or rock containing asbestos materials is applied as a base that will eventually be covered by non-asbestos-containing material, said non-asbestos-containing material must be applied within 15 days of application of the base material unless the Director has provided for a longer period of time based on a showing that the longer period will not lead to increased emission release of asbestos fibers.

(Code 1997, § 8.44.010; Ord. No. 4548, 1-4-2000; Ord. No. 4630, 5-13-2003)

A. No person shall use or apply serpentine material or rock containing asbestos materials for surfacing in the County unless the material has been tested using ARB Test Method 435 and determined to have a permissible asbestos content level. A written receipt or other record documenting the asbestos content, as required by Subsection B of this section, shall be retained by any person who uses or applies the material for a period of at least seven years from the date of use or application. Within seven business days of the date of the sale of serpentine material in the County, the person using or applying the materials shall provide a copy of such receipt to the Department and the supplier. This chapter does not affect the continued use of previously applied surfacing material; it is intended to apply only prospectively to surfacing activities taking place after the effective date of the ordinance from which this chapter is derived.

B. No person shall sell, supply, or offer for sale serpentine material or rock containing asbestos materials for surfacing in the County unless that material has been tested using ARB Test Method 435 and has been determined to have a permissible asbestos content level. Seller shall provide to each purchaser or person receiving the materials a written receipt which specifies the following information: The amount of materials sold or supplied; the dates that the materials were produced, sampled, tested, and supplied or sold; and the asbestos content of the material as measured by ARB Test Method 435; a statement that a copy of the receipt must be provided to the Department within seven business days. A copy of the receipt must, at all times, remain with the material during transit and surfacing. No later than within 14 business days of the date that the materials are supplied, the supplier shall submit a copy of such receipt to the Department, along with a copy of the receipt provided to the supplier by the end user pursuant to Subsection A of this section.

C. Any person who sells, supplies, or offers for sale serpentine material in the County whether or not used for surfacing shall also provide with as part of each sale a written receipt containing the following statement:

"Aggregate materials in this region may contain asbestos. It is unlawful to use serpentine material or rock containing asbestos materials for surfacing in the County of El Dorado unless the material has been tested and found to contain asbestos in concentrations equal to or less than 0.25 percent _____ insert current permissible asbestos content level]. All tests for asbestos content must use California Air Resources Board Test Method 435 [or any replacement method adopted by the State], and a written record documenting the test results must be retained by both purchaser and seller for at least seven years if the material is used for surfacing".

1. Seller shall provide each purchaser or person receiving the materials a written receipt which specifies the following information: The amount of materials sold or supplied; the dates that the materials were produced, sampled, tested, and supplied or sold; and when necessary the asbestos content of the materials as measured by ARB Test Method 435; a statement that a copy of the receipt must be provided by the purchaser to the Department within seven business days. A copy of the receipt must, at all times, remain with the materials during transit. No later than 14 business days of the date that the materials are supplied, the supplier shall supply a copy of such receipt to the Department along with a copy of the receipt provided to the supplier by the end user pursuant to Subsection A of this section.

2. A sample notice, reflecting the then applicable permissible asbestos content level and any methodology replacing ARB Test Method 435, shall be kept on file in the Department and shall be available to the public.

D. Any person who sells, supplies, or offers for sale serpentine material or rock containing asbestos materials, shall retain for a period of a least seven years from the date of sale or supply, copies of all receipts and copies of any analytical test results from asbestos testing of the material. All receipts and test results shall be provided to the Department upon request.

E. If ARB Test Method 435 has been used to perform two or more tests on any one volume of serpentine material or rock containing asbestos materials, whether by the same or a different person, the arithmetic average of these test results shall be used to determine the asbestos content of the earthen materials.

F. The provisions of this section shall not apply to roads located at serpentine mines. In order for this exception to apply, however, the mine shall at all times remain in strict compliance with applicable fugitive dust rules and regulations, including, but not limited to, the provisions of Section 8.44.050.

G. Serpentine material or rock containing asbestos materials that is an integral part of bituminous concrete, Portland cement concrete, bituminous surface, or other similar cemented materials is exempt from the provisions of Section 8.44.030.

(Code 1997, § 8.44.020; Ord. No. 4630, 5-13-2003)

A. No person shall engage in activities requiring a County of El Dorado grading permit on property included in the sections identified on the "Potential Asbestiform Minerals Map" without first submitting to the Department and obtaining prior approval of an asbestos hazard dust mitigation plan.

B. The asbestos hazard dust mitigation plan, in a form approved by the Department, shall include practices to be followed to eliminate, to the greatest extent possible, the emission of fugitive dust from grading, excavation and construction activity. These practices may include, but are not limited to, the following:

1. Pre-wet work area and immediately follow with fine spray application on the immediate area being worked to eliminate visible dust to the greatest extent possible.

2. Limit vehicle access and speed on exposed serpentine and rock containing asbestos material areas to reduce fiber releases.

3. Cover areas exposed to vehicle travel with non-asbestos cover material.

4. Maintain a high moisture condition of the disturbed surface or treat the disturbed surface of the work area with an approved "palliative" material to seal loose fibers together to the parent rock particle.

5. Material transfers or stockpiles of loose material shall be kept adequately wet, and sealed by an approved palliative or covered when conditions warrant.

6. Provide written employee notification of the potential health risk of airborne asbestos and the requirements of the asbestos dust mitigation plan.

7. Worker safety precautions and exposure monitoring should be considered but are not specifically required in all cases. Other relevant regulations from County and State agencies may also be used when applicable according to their provisions.

C. The Director may require additional mitigation and/or air monitoring measures to be included in the asbestos hazard dust mitigation plan whenever he or she finds that such measures are necessary to protect and/or demonstrate the protection of public health and safety.

D. The Department may charge the project proponent a reasonable fee for review, inspection, approval and enforcement of the asbestos hazard dust mitigation plan. Fees shall be set by resolution of the Board of Supervisors which may from time to time be amended.

(Code 1997, § 8.44.030; Ord. No. 4630, 5-13-2003)

A. Any new surface mining operation proposed for operation in serpentine deposits shall file and obtain approval of an asbestos hazard dust mitigation plan prior to commencing operations.

B. The Department may charge the project proponent a reasonable fee for review, approval and enforcement of the asbestos hazard dust mitigation plan. Fees shall be set by resolution of the Board of Supervisors which may from time to time be amended.

(Code 1997, § 8.44.040; Ord. No. 4630, 5-13-2003)

A. Activities in violation of the provisions and requirements of this chapter are hereby declared a nuisance.

B. Activities in violation of the terms of an approved asbestos hazard dust mitigation plan are hereby declared a nuisance.

C. In order to protect public health, the Director is authorized to monitor and enforce compliance with the terms of this chapter and the terms of any asbestos hazard dust mitigation plan approved under this chapter.

D. The Director may, in responding to an actual or reasonably foreseeable violation of this chapter concerning the release or imminent release of dust which may contain asbestos fibers into the air, issue an immediate order to cease and desist all activities to prevent the release or mitigate the reasonable foreseeable threat of release in violation of this chapter pending a hearing as specified in Subsection E of this section. Further, the County may immediately and independent of any administrative remedy, commence action for the abatement of the nuisance and may apply to such court as may have jurisdiction to grant relief as will abate the nuisance and to prevent any person from conducting any activities in violation of this chapter.

E. When the Director determines that acts are being performed or conditions exist which have been declared by law to be in violation of this chapter but which do not require immediate abatement action under Subsection D of this section, the Director shall notify by certified letter the owner of the property upon which the violation exists and the person conducting the activities in question, if different from the owner of the property. The letter shall contain the following information:

1. The Assessor's parcel number of the property upon which such violation exists.

2. A description of the acts or conditions constituting the violation.

3. A description of the steps necessary to abate the violation.

4. The date, time and location of a hearing at which objections to the notice of violation may be heard. The hearing shall be held no earlier than five days after the date of the letter, unless the parties agree otherwise.

5. Notice that County authorities may abate the condition of violation.

6. Notice that all costs of abatement will be assessed upon the real property owner.

7. Notice that a criminal, civil or administrative enforcement action may be instituted.

8. Any person aggrieved by an order of the Director issued under Subsection D or E of this section may obtain review of the order by filing in the superior court a petition for writ of mandate within 30 days following the issuance of the order. The provisions of Code of Civil Procedure § 1094.5 shall govern judicial proceedings pursuant to this subsection. If the aggrieved person does not petition for a writ of mandate within the time limits set by this subsection, an order of the Director shall not be subject to review by any court or agency.

F. Any person who negligently violates, or causes another person to negligently violate, the provisions of this chapter shall be subject to a penalty not to exceed $2,500.00 for each violation or, for continuing violations, for each day the violation continues.

G. Any person who intentionally violates, or causes another person to intentionally violate, this chapter shall be subject to a penalty not to exceed $25,000.00 for each violation or, for continuing violations, for each day the violation continues.

H. Misdemeanor: $1,000.00 fine for each violation and/or six months in county jail.

(Code 1997, § 8.44.050; Ord. No. 4630, 5-13-2003)

Pursuant to Civil Code § 1102.6(a) all transfers of real property otherwise subject to Civil Code § 1102 et seq., shall contain a "Real Estate Transfer Disclosure Statement," complying with the form contained in Civil Code § 1102.6(a)(b) and containing the following operative language:

"Seller discloses that the subject property may be located in an area containing naturally occurring asbestos. Disturbance of naturally occurring asbestos may result in the release of asbestos into the environment potentially triggering Federal, State and local laws and regulations and threatening public health. Seller further discloses that naturally occurring asbestos has not been disturbed on the subject property."

(Code 1997, § 8.44.060; Ord. No. 4630, 5-13-2003)

The requirements contained in this chapter are in addition to, and not in lieu, of any existing regulations enacted by the County or any other governmental entity.

(Code 1997, § 8.44.070; Ord. No. 4630, 5-13-2003)