Hayward Municipal Code Part VI Responsibility

As soon as any person in charge of a storage facility or responsible for emergency response for a facility has knowledge of any confirmed or unconfirmed unauthorized release of a hazardous material which is liquid or solid at STP, such person shall take all necessary steps to ensure the discovery and containment and clean up of such release and shall notify City of the occurrence as required by this section.

(a) Confirmed Unauthorized Release.

(1) Recordable Unauthorized Release. Any recordable unauthorized release shall be contained and safely disposed of in an appropriate manner by permittee and such occurrence and the response thereto shall be recorded in the permittee's monitoring records. A recordable unauthorized release is any unauthorized release of a hazardous material which meets all of the following criteria:

(i) The release is from a primary containment to a secondary containment or to a rigid above ground surface covering capable of containing the release until clean up of the hazardous material is completed; and

(ii) The permittee is able to adequately clean up the release before it escapes from such secondary containment or such aboveground surface, but if the clean up requires more than eight (8) hours, it becomes a reportable release in accordance with subsection (2) below.

(iii) There is no increase in the hazard of fire or explosion, nor is there any production of a flammable or poisonous gas, nor is there any deterioration of such secondary containment or such rigid aboveground surface.

(2) Nonrecordable Unauthorized Release. An otherwise recordable unauthorized release does not need to be recorded if (l) the release is not the result of the deterioration or failure of the primary container, and (2) the quantity released is less than one (1) ounce by weight or such other quantity as has been specified in the HMMP in accordance with the provisions of Section 3-8.20(i), and (3) the release can be cleaned up within fifteen (15) minutes.

(3) Reportable Unauthorized Release. Any unauthorized release which is not recordable under paragraph (1) above and does not meet the criteria set forth in paragraph (2) above, must be reported to City immediately. The reporting party shall provide information to City relating to the ability of permittee to contain and dispose of the hazardous material, the estimated time it will take to complete containment and disposal, and the degree of hazard created. City may verify that the hazardous material is being contained and appropriately disposed. City, at any time upon a determination that permittee is not adequately containing and disposing of such hazardous material, shall have the power and authority to undertake and direct an emergency response in order to protect the public health or safety.

(4) Office of Emergency Services. The City shall submit a written report to the Office of Emergency Services within ten (10) working days from the date that the City is notified of an unauthorized release from an underground storage tank.

(b) Unconfirmed Unauthorized Release.

(1) Indication of Loss in Inventory Records. Whenever a material balance or other inventory record, employed as a monitoring technique under the HMMP, indicates a loss of hazardous material, and no unauthorized release has been confirmed by other means, permittee shall have five (5) working days to determine whether or not there has been an unauthorized release. If before the end of such period, it is determined that there has been no unauthorized release, an entry explaining the occurrence shall be made in permittee's monitoring records. Where permittee has not been able, within such period, to determine that there has been no unauthorized release, an unauthorized release is deemed confirmed and permittee shall proceed in accordance with subsection (a)(2), above.

(2) Test Results. Whenever any test results suggest a possible unauthorized release, and no unauthorized release has been confirmed by other means, the permittee shall have five (5) working days to retest. If second test results obtained within that period establish that there has been no unauthorized release, the results of both tests shall be recorded in permittee's monitoring records. If it has not been established within such period that there has been no unauthorized release, an unauthorized release is deemed confirmed and permittee shall proceed in accordance with subsection (a)(2), above.

(3) Gases at STP. Any person in charge of a storage facility or responsible for emergency response for a storage facility, who has knowledge of any unauthorized release of a hazardous material which is a gas at STP, must immediately report such release to the City if such release presents a threat of imminent danger to public health and safety.

Any person, firm, or corporation responsible for storing the hazardous material shall institute and complete all actions necessary to remedy the effects of any unauthorized release, whether sudden or gradual. City shall undertake actions to remedy the effects of such unauthorized release itself, only if it determines that it is reasonably necessary under the circumstances for the City to do so. The responsible party shall be liable to reimburse City for all costs incurred by City in remedying the effects of such unauthorized release, including the costs of fighting fires to the extent allowed by law. This responsibility is not conditioned upon evidence of willfulness or negligence of the party storing the hazardous material in causing or allowing such release. Any responsible party who undertakes action to remedy the effects of an unauthorized release shall not be barred by this title from seeking to recover appropriate costs and expenditures from other responsible parties except as provided by Section 3-8.28.

The permittee shall indemnify, hold harmless and defend the City against any claim, cause of action, disability, loss, liability, damage, cost or expense, howsoever arising, which occurs by reason of an unauthorized release in connection with the permittee's operations under this permit except as arises from City's sole willful act or sole active negligence.