Fremont Municipal Code Art. I General Provisions

(a) The purpose of this chapter is the protection of health, life, the environment, resources, and property through control of the management, handling, use, storage and disposal of hazardous materials.

(b) The city intends to act as its own local administering agency for hazardous materials regulations. This chapter is intended to provide for compliance with state-mandated regulation of underground storage tanks (Cal. Health & Safety Code Chapter 6.7 – Sections 25280 through 25299.7), and hazardous materials (Cal. Health & Safety Code Chapter 6.95 – Sections 25500 through 25521).

(c) This chapter is intended to be used in conjunction with the Uniform Fire, Plumbing, Mechanical, Electrical, and Building Codes most recently adopted by the city of Fremont.

(d) In the event of conflicting or overlapping regulatory provisions, the more stringent applicable requirement shall prevail. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12100.)

(a) No person, firm, corporation, city, county, district or department, or agency of the state shall cause, suffer, or permit the management or handling of hazardous materials:

(1) In a manner which violates a provision of this chapter or any other local, federal, or state statute, code, rule, or regulation relating to hazardous materials; or

(2) In a manner which causes an unauthorized discharge of hazardous materials or poses an unreasonable risk of such unauthorized discharge or poses an unreasonable risk to the safety of the community and the environment.

(b) The city of Fremont shall have the discretion to exempt an applicant from any specific requirement in this chapter, to permit an applicant for different requirements or to require an applicant to meet additional requirements where the city judges such action would be appropriate and consistent with achieving the general obligation of this chapter for protecting public health, safety and the environment as long as these actions would not constitute a violation of federal or state regulations.

(c) Users of hazardous materials are expected to be in compliance with current rules, policies, and regulations regarding waste minimization. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12101.)

(a) Any person, firm, or corporation which handles any material regulated by Section 8.35.070, which is not excluded by Section 8.35.080, shall obtain and keep current a hazardous materials management permit.

(b) All regulated hazardous materials shall be used, handled, and stored in conformity with the standards established in Article III of this chapter.

(c) The storage, use, and handling of such hazardous materials shall be in conformance with the approved hazardous materials management plan. For additional requirements, see Section 8.35.010(c) and (d).

(d) Any city, county, district, department, or agency of the state of California which handles any hazardous substance, as defined in Cal. Health & Safety Code § 25281 and Section 8.35.040, in this city shall obtain and keep current a permit from the city which conforms, at a minimum, to Cal. Health & Safety Code Division 20, Chapter 6.95 and to this chapter. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12102.)

Unless otherwise expressly stated, whenever used in this chapter, the following terms shall have the meanings set forth below:

(1) “Abandoned,” when referring to a storage facility, means out of service and not safeguarded in compliance with this chapter.

(2) “Aboveground tank” means any one or combination of tanks, including pipes connected thereto, used for hazardous materials of which no more than 10 percent of the total volume is beneath the surface of the ground.

(3) “ACGIH” means the American Conference of Governmental Industrial Hygienists, which develops and publishes recommended occupational exposure limits for chemical substances and physical agents.

(4) “Acid” means a compound that reacts with metals to yield hydrogen gas; reacts with a base to form a salt; dissociates in water to yield hydrogen or hydronium ions; has a pH of less than seven; and neutralizes bases or alkaline media.

(5) “ANSI” means the American National Standards Institute that identifies the need for national consensus standards and coordinates the development of standards that relate to safe design/performance of equipment and procedures.

(6) “Atmosphere” means a pressure measurement equivalent to 14.7 pounds per square inch (760 millimeters of mercury).

(7) “Barrel” means a volume of 42 U.S. gallons.

(8) “Base” means a substance that liberates hydroxide (OH) anions when dissolved in water, receives a hydrogen atom from a strong acid to form a weaker acid, and gives up two electrons to an acid.

(9) “Binary explosives” are commonly sold as two separate components, both of which are inert or nonexplosive until mixed.

(10) “Boiling point” means the temperature at which a liquid changes to a vapor state at a given pressure, usually sea level or one atmosphere.

(11) “C” means Celsius or centigrade.

(12) “CAS” means the Chemical Abstract Service in Columbus, Ohio, and is associated with the American Chemical Society.

(13) “CFR” means the Code of Federal Regulations.

(14) “Chemical name” means the specific designation of a substance in accordance with the International Union of Pure and Applied Chemists (IUPAC) system, or by the nomenclature developed by the Chemical Abstracts Service.

(15) “City” means the city manager or his/her designee, except where it clearly is intended to refer to the geographical confines of the city of Fremont.

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

(17) “Compressed gas” means a gas having, in a container, an absolute pressure exceeding 40 psi (2,068 mm Hg) at 70 degrees (21.1 degrees C), or an absolute pressure exceeding 104 psi (5,378 mm Hg) at 130 degrees F (54 degrees C) regardless of the pressure at 70 degrees F, or a liquid having a vapor pressure exceeding 40 psi (2,068 mm Hg) at 100 degrees F (37.8 degrees C).

(18) “Cryogenic fluids” means those fluids that have a normal boiling point below minus 150 degrees F (minus 101 degrees C).

(19) “DOT” means the United States Department of Transportation.

(20) “EPA” means the United States Environmental Protection Agency.

(21) “Emptied container” means any containing vessel that has been cleaned and purged of all residue within detectable limits or equivalent as approved by the city.

(22) “Evaporation rate” means the rate at which a material vaporizes (evaporates) compared to the rate of vaporization of n-butyl acetate (NBuAc) which is designated as one.

(23) “Explosives” and “explosive materials” mean any chemical compound, mixture, or device, the primary purpose of which is to function by explosion, including black powder, blasting agents, detonators, safety fuses, squibs, ignitors, and cords for ignition and detonation and all materials as defined in 49 CFR 173.53 through 173.100, inclusive.

(24) “F” means Fahrenheit.

(25) “Facility” means a building or buildings, appurtenant structures, and surrounding land area used by a single business or governmental entity at a single location or site.

(26) “Finished product” means a product that does not undergo further chemical change or change in physical composition, and is all of the following:

(A) Consistent in its physical characteristics;

(B) Chemically stable under normal storage, use and handling conditions; and

(C) May contain hazardous materials which cannot be released under normal storage, use or handling.

(27) “Gas” means a formless fluid that occupies the space of its enclosure and can be changed to its liquid or solid state only by increased pressure and/or decreased temperature.

(28) “Handling” means the management or use of a material including all activities that take place within a facility; the placing of a material into or taking it out of a facility; and the storage, use, and disposal, including recycling, of that material.

(29) “Hazardous chemical reaction” means any reaction which generates pressure or by-products which may cause significant injury, illness or harm to humans, domestic animals, livestock, wildlife, property or the environment.

(30) “Hazardous materials” (or “hazardous substances”), when used in this chapter, includes any of the following:

(A) Any material listed as a hazardous or extremely hazardous material and/or hazardous or extremely hazardous waste in Title 22 of the California Code of Regulations (CCR) Section 66680, or meets the “Criteria for Identification of Hazardous and Extremely Hazardous Waste” set forth in Title 22 CCR Article 11 as amended, beginning at Section 22-66693, whether or not the substance or material is characterized as a waste.

(B) Any material on the list of hazardous substances prepared by the Director of Industrial Relations of the Division of Occupational Safety and Health (Cal/OSHA) pursuant to Cal. Lab. Code § 6382.

(C) Any material listed in the California Code of Regulations (CCR) Division 21.5 “Safe Drinking Water and Toxic Enforcement Act of 1986,” Title 22, Section 22-1200, as a chemical known to cause cancer or reproductive toxicity.

(D) Any material defined by the U.S. Occupational Safety and Health Administration (OSHA) as a “hazardous chemical” in 29 CFR 1910.1200, Appendix A.

(E) Any material defined as a “hazardous material” by the U.S. Department of Transportation in 49 CFR Section 171.8.

(F) Any material listed as a hazardous substance or toxic pollutant by the U.S. EPA in 40 CFR Part 302, Table 302.4 and/or 40 CFR 401.15.

(G) Any material listed as an “extremely hazardous substance” by the U.S. EPA in 40 CFR Part 355, Appendix A.

(H) Any material designated as a hazardous substance under the Federal Water Pollution Control Act as stated in the U.S. EPA regulations at 40 CFR Part 116, Table 116.4A.

(I) Any material which exhibits the characteristics of hazardous waste, as stated at 49 CFR Part 261, Subpart C, beginning at Section 261.20, whether or not the material is characterized as a waste.

(J) Any material listed as a hazardous waste by the U.S. EPA 49 CFR Part 261, Subpart D, beginning at Section 261.30, whether or not the material is characterized as a waste.

(K) Any material which exhibits the hazardous characteristics of or is specifically listed in the hazardous material categories of the Uniform Fire Code, 1988 Edition, Appendix VI-A, paragraph 2.

(L) Any material (such as liquefied propane gas) which has been determined, through testing or other means, to be likely to create a significant potential or actual hazard to public health, safety or the environment. This subsection does not establish the requirement to test materials for the purposes of this article.

(M) In addition to the above, hazardous material, including wastes, shall mean any material which is subject to regulation pursuant to Article II of this chapter. In applying the above, a mixture shall be deemed to be a hazardous material if it contains one percent or more of any material regulated pursuant to Article II of this chapter or any such material in concentrations greater than the TLV, unless there are significant hazards remaining.

(N) The city may exempt any material from the requirements of this chapter where it has been demonstrated that the material in the quantity and/or concentration stored does not present a significant actual or potential hazard to the public health, safety or environment.

(31) “Hazardous materials facility” means any one or combination of tanks, sumps, wet floors, waste treatment facilities, pipes, vaults or other containers, used, or designed to be used, for the handling of hazardous materials at a facility.

(32) “Hg” means the chemical symbol for mercury.

(33) “Highly toxic materials” means materials with a health hazard rating of three or four when rated in accordance with the National Fire Protection Association’s rating system. Such materials are those which on short exposure could cause serious, temporary or residual injury or death.

(34) “Hypergolic materials” means any materials which are capable of igniting spontaneously upon contact with another substance.

(35) “IDLH” means the concentration of a substance which is immediately dangerous to life and health and is defined as the maximum concentration from which a healthy adult could escape within 30 minutes without any escape-impairing symptoms or any irreversible health effects.

(36) “Ignitable materials” (gas, solid, or liquid) have a flashpoint less than 140 degrees F (60 degrees C).

(37) “Liquefied petroleum gas (LPG)” means any material which is composed predominantly of the following hydrocarbons or mixtures of them: propane, propylene, butane (normal butane or isobutane) and butylenes.

(38) “mm” means millimeter.

(39) “MSDS” means a material safety data sheet prepared pursuant to 29 CFR 1910.1200 which provides significant information on a substance’s properties, hazards, and protective measures.

(40) “NFPA” means the National Fire Protection Association.

(41) “Officer” means the city manager or any designee of the city manager.

(42) “Organic peroxide” means any compound containing the bivalent -o-o-(peroxide) structure and which may be considered a derivative of hydrogen peroxide where one or more hydrogen atoms have been replaced by organic radicals.

(43) “OSHA” means the Occupational Safety and Health Administration of the United States Department of Labor.

(44) “Oxidizing materials” means substances that readily yield oxygen to stimulate combustion.

(45) “Permit” means any hazardous materials management permit issued pursuant to this chapter as well as any additional approvals thereto.

(46) “Permit quantity limit” means the maximum amount of hazardous material that can be handled at a facility. Separate permit quantity limits will be set for each facility for which a permit is obtained in accordance with the requirements of this chapter.

(47) “Person” means any person, firm, or corporation to whom a permit is issued pursuant to this chapter and any authorized representative, agent or designee of such person, firm, or corporation. “Person” also means any city, county, district, the state, or any department or agency thereof.

(48) “pH” means a value that represents the acidity or alkalinity of an aqueous solution; it is the logarithm to the base 10 of the reciprocal of the hydrogen ion concentration of a solution.

(49) “Pipes” means pipeline systems which are used in connection with the handling of hazardous materials exclusively within the confines of a facility and which are not intended to transport hazardous materials in interstate or intrastate commerce or to transfer hazardous materials in bulk to or from a marine vessel.

(50) “Poison, Class A” is a Federal Department of Transportation term for an extremely dangerous material of such a nature that a very small amount mixed with air is immediately dangerous to life or health as defined in 49 CFR 173.326.

(51) “psi” means pounds per square inch.

(52) “Primary containment” means the first level of containment, i.e., the inside portion of that container which comes into immediate contact on its inner surface with the hazardous material being contained or the conditions for which the containment is designed and/or intended.

(53) “Product-tight” means impervious to the material which is contained, or is to be contained, so as to prevent the seepage of the material from the containment. To be product-tight, the container shall be made of a material sufficient to withstand greater than the maximum working pressure and is not subject to physical or chemical deterioration by the material being contained.

(54) “Pyrophoric” means a material that ignites spontaneously in air at or below 130 degrees F (54 degrees C).

(55) “Radioactive material” means any material or combination of materials that spontaneously emits more than 10 milliroentgens of ionizing radiation in a 24-hour period or has a specific activity greater than two one-thousandths microcuries per gram.

(56) “Reactive materials” means those materials which can enter into a chemical reaction with other stable or unstable materials and that may thus produce a hazardous condition or material.

(57) “Secondary containment” means the level of containment external to and separate from the primary containment.

(58) “SIC Code” means the identification number assigned by the Standard Industrial Classification Code of the Federal Office of Management and Budget.

(59) “Single-walled” means construction with walls made of but one thickness of material. Laminated, coated, or clad materials shall be considered as single-walled.

(60) “Specific gravity” means the weight of a material compared to an equal volume of water where water is one.

(61) “Standard temperature and pressure (STP)” means a temperature of 32 degrees F (zero degrees C) and an atmospheric pressure of one atmosphere, or 760 millimeters mercury.

(62) “Sump” means a pit or well in which liquids collect.

(63) “TLV” means threshold limit value, which expresses the airborne concentration of a substance to which healthy adult workers may be exposed daily without adverse effects, as determined by ACGIH.

(64) “Toxicity” means the sum of adverse effects resulting from exposure to a material or as defined by the United States Environmental Protection Agency.

(65) “Unauthorized discharge” means any release or emission of any hazardous material which does not conform to the provisions of this chapter, unless such release is in accordance with the release regulations of the Bay Area air quality management district and California Air Resources Board, with a National Pollutant Discharge Elimination System Permit, with waste discharge requirements established by the regional water quality control board pursuant to the Porter Cologne Water Quality Act, or with Union sanitary district sewer pretreatment requirements.

(66) “Underground tank” means any one or combination of tanks, including pipes connected thereto, used for hazardous substances, of which 10 percent or more of the total volume is beneath the surface of the ground.

(67) “Unstable materials” means those materials (other than explosives) which, when in the pure state or as commercially produced products, in the absence of an inhibitor, in the presence of contaminants, in contact with noncompatible materials or if exposed to heat, friction or shock, will vigorously polymerize, decompose, condense, become self-reactive, undergo other violent chemical changes, or will explode.

(68) “Vapor density” means the weight of a gas compared to the weight of an equal volume of air where air is defined as one.

(69) “Vapor pressure” means the force exerted by a gas in equilibrium with its own liquid in a closed container, measured at 68 degrees F (20 degrees C).

(70) “Wet floor” means a horizontal surface which is used to routinely collect, contain or maintain liquids or to transmit liquids on an intermittent or continuous basis.

(71) “Work station” means a defined space or an independent principal piece of equipment using hazardous material within a production area where a specific function, a laboratory procedure or a research activity occurs. Approved cabinets serving the work station shall be defined as a part of the work station. The station may contain ventilation equipment, fire protection devices, sensors for gas and other hazards, electrical devices and other processing and scientific equipment. This section is not to be construed as exempting any site from compliance with appropriate health, safety and fire regulations as determined by the city. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12103.)

Hazardous materials regulated by this chapter shall be allowed within the city limits, provided such use is in current compliance with the zoning ordinance and general plan. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-12104.)

“Enforcement officer” means the city manager, the officer named in Section 1.15.050(b)(3)(D) (power of arrest), Chapter 1.15 (penalty provisions), and/or any other persons designated by the city manager to administer and enforce the provisions of this chapter. (Ord. 1946 § 6, 11-27-90; Ord. 2004 § 8, 5-12-92. 1990 Code § 3-12105.)