Laguna Niguel Municipal Code Art. 4 Hazardous Material Disclosure

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Cross reference— Fire protection and explosives, § 11-3-1 et seq.; public safety, § 11-9-1 et seq.; transport of hydrocyanic acid, § 11-9-12.

The city council finds and declares that:

(1) Emergency service personnel in the city have a need to know of the use and dangers of hazardous materials in the community in order to plan for and respond to potential emergencies and exposure to such materials.

(2) Basic information on the location, type and health risks of hazardous materials used or stored in the city is not now available to firefighters, health officials, planners, elected officials and other emergency response personnel.

(3) It is intended that the system of disclosure set forth in this article shall provide information essential to firefighters, health officials, planners, elected officials and other emergency service personnel in meeting their responsibilities for the health and welfare of the community in such a fashion that trade secrecy is not abridged.

(4) It is further intended that this article implement the community's right and need for basic information on the use and disposal of hazardous materials in the city and provide for an orderly system for the provision of such information.

(Ord. No. 90-11, § 4, 3-6-90; Ord. No. 90-24, § 1, 6-19-90)

This article shall be known and may be cited as the Hazardous Materials Disclosure Ordinance.

(Ord. No. 90-11, § 4, 3-6-90; Ord. No. 90-24, § 1, 6-19-90)

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning; provided, however, that references to statutes or regulations in existence at the time this article is adopted shall also include references to such statutes or regulations as they may be amended or changed in the future:

Carcinogen means a substance which causes cancer. For purposes of this article, carcinogens are those substances specified on the list developed by the United States Department of Health and Human Services on its Second Annual Report on Carcinogens.

CAS number means the unique identification name as assigned by the Chemical Abstracts Services to specific chemical substances.

Chemical name means the scientific designation of a substance in accordance with the International Union of Pure and Applied Chemistry or the system developed by the Chemical Abstracts Services.

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

Disclosure form means the written request for information prepared pursuant to sections 6-3-230 and 6-3-240.

Fire chief and director of fire services mean the director of fire services of the county.

Fire department means the fire department of the county.

Handle means to generate, treat or dispose of hazardous material in any fashion.

Handler means any person who handles a hazardous substance.

Hazardous material means any substance or product:

(1) For which the manufacturer or producer is required to prepare an MSDS pursuant to the Hazardous Substances Information and Training Act, Labor Code § 6360 et seq., or pursuant to any applicable federal law or regulation;

(2) Which is listed in Health and Safety Code § 25316;

(3) Which is listed as a radioactive material set forth in chapter 1, title 10, appendix B, Code of Federal Regulations;

(4) Which is listed as a legal carcinogen by the California Administrative Code, title 8, subchapter 7, group 16, or which is specified in the definition of carcinogen in this section;

(5) Which the director of the department of food and agriculture classifies as a pesticide; or

(6) Which the EPA classifies as a priority organic pollutant.

Hazardous waste and extremely hazardous waste mean any material that is identified in:

(1) Health and Safety Code § 25115 or 25117, and set forth in sections 66680 and 66684 of title 22 of the California Administrative Code; or

(2) 40 CFR 261.31—261.33.

Health official means the health officer of the city or his deputy.

MSDS means a material safety data sheet prepared pursuant to Labor Code § 6390 or pursuant to the regulations of the Occupational Safety and Health Administration of the United States Department of Labor.

Person means an individual, trust, firm, joint stock company, corporation, partnership or association.

Physician means any person who holds a valid certificate from the state to practice the healing arts.

SIC code means the identification number assigned by the Standard Industrial Classification code to specific types of business.

Storage and storing mean the containment of substances or materials in such a manner as not to constitute disposal of such substances or materials.

Use includes the handling, processing or storage of a hazardous substance.

User means any person who uses a hazardous substance or handles a hazardous waste.

(Ord. No. 90-11, § 4, 3-6-90; Ord. No. 90-24, § 1, 6-19-90)

Cross reference— Definitions generally, § 1-1-18.

A substance may be deemed a hazardous material or hazardous waste upon a finding by the director of fire services that the substance, 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. The director of fire services may use the Uniform Fire Code published by the Western Fire Chiefs to assist in requiring the types and amounts of such substances to be disclosed.

(Ord. No. 90-11, § 4, 3-6-90; Ord. No. 90-24, § 1, 6-19-90)

(a) Any person who uses or handles a hazardous material must semiannually, during the months of January and July, submit a completed disclosure form to the county fire department.

(b) Any person who, during the calendar year, for the first time becomes a user or handler of any hazardous material must submit a completed disclosure form to the county fire department within 30 days of becoming a user or handler. Thereafter, any such user or handler shall comply with the provisions of subsection (a) of this section.

(c) The county fire department may, upon 30 days' written notice, require the submittal of a disclosure form of any user or handler.

(d) Any person required to submit a disclosure form pursuant to this section shall file with the county fire department an updated disclosure form within 15 days of any of the following:

(1) A change in business address.

(2) A change in business ownership.

(3) A change of business name.

(4) Cessation of business operations.

(5) The use or handling of a previously undisclosed hazardous material.

(6) A significant change in the use or handling of a hazardous material for which disclosure has been previously made.

(Ord. No. 90-11, § 4, 3-6-90; Ord. No. 90-24, § 1, 6-19-90)

(a) The disclosure form shall be developed by the director of fire services, and shall include but not be limited to the following:

(1) A copy of the MSDS for every hazardous material used by the person completing the disclosure form as required by the fire department.

(2) CAS number as may be required by the fire department.

(3) SIC code as may be required by the fire department.

(4) U.N. identification number as may be required by the fire department.

(5) A listing of the chemical name and any common names of every hazardous material used by the person completing the disclosure form.

(6) The maximum amount of each hazardous material which is handled or used at any one time by the user over the course of the year.

(7) Specific information on how and where the hazardous materials are handled or used by the user so as to allow fire and safety personnel to prepare adequate emergency response plans to potential releases of the hazardous materials.

(8) The names and phone numbers of at least two persons representing the business and who would be able to assist emergency personnel in the event of an emergency involving the business during business and nonbusiness hours.

(9) The hazard characteristics of every hazardous material disclosed, including but not limited to toxicity, flammability, reactivity and corrosivity as may be required by the fire department.

(b) Upon request all users must provide the following information:

(1) To the fire department, any information determined by the fire department to be necessary to protect the public health, safety or the environment.

(2) To any physician, any information determined by the physician to be necessary to the medical treatment of his patient.

(Ord. No. 90-11, § 4, 3-6-90; Ord. No. 90-24, § 1, 6-19-90)

(a) The following materials or persons are exempt from the disclosure requirements of section 6-3-230:

(1) A material designated as a hazardous material by this article solely by its presence in the Nuclear Regulatory Commission list of radioactive materials shall be exempt from the requirement that an MSDS be submitted with the disclosure form.

(2) Hazardous materials or substances contained in food, drug, cosmetic or tobacco products shall be exempt from the disclosure requirements.

(3) Any person using or handling less than 500 pounds or 55 gallons per year, whichever is the lesser, of a hazardous material shall be exempted from the requirement of disclosure of that use or handling unless the fire chief has provided notice that the weight or volume limit of this exemption for a specific hazardous material has been lowered in response to public health concerns or to meet the intent and requirements of the Uniform Fire Code.

(4) Hazardous materials contained solely in consumer products packaged for use by and distributed to the general public shall be exempt from the disclosure requirements unless the product is repackaged or altered in any way; provided, however, the manufacture and distribution of these products are not exempt.

(5) Any person, while engaged in the transportation of hazardous materials, including storage incident thereto, shall be exempt from the disclosure requirements, provided that such materials are accompanied by shipping papers prepared in accordance with the provisions of 49 CFR subchapter c, as now in existence or as hereafter amended or changed.

(6) Infectious waste generated by hospitals, medical centers, clinics and other health care facilities that are regulated under title 22 of the California Administrative Code shall be exempt from the disclosure requirements.

(b) The exemptions contained in this section shall not apply to the using or handling of carcinogens, except to the extent that such carcinogens are handled or used solely for personal purposes.

(c) No MSDS shall be required for any hazardous material for which an MSDS is not available at the time disclosure is required; provided, however, that such MSDS shall be submitted to the fire department within 15 days after receipt by the user of the MSDS.

(Ord. No. 90-11, § 4, 3-6-90; Ord. No. 90-24, § 1, 6-19-90)

The health officer will make information available to fire departments and emergency response personnel, upon request, regarding hazardous wastes, extremely hazardous wastes and underground tanks, when the information is obtained by the health officer.

(Ord. No. 90-11, § 4, 3-6-90; Ord. No. 90-24, § 1, 6-19-90)

(a) When required by the director of fire services, work areas in which any person uses or handles hazardous material shall be identified as such by such measures as the director of fire services may specify, including but not limited to signs, color coding, posting lists of materials and MSDS or other notices.

(b) When required by the director of fire services, any person submitting a disclosure form may be required to install an approved key box for emergency utilization of MSDS, floor plans, site plans and access keys. The location of the required key box shall be as designated by the director of fire services.

(Ord. No. 90-11, § 4, 3-6-90; Ord. No. 90-24, § 1, 6-19-90)

The city council may establish by resolution a schedule of fees to be paid by persons subject to this article which provides for fees in sufficient amounts to cover the costs of administration resulting from this article, or it may authorize the board of supervisors of the county to adopt such a schedule of fees for the administration of the provisions of this article in the city.

(Ord. No. 90-11, § 4, 3-6-90; Ord. No. 90-24, § 1, 6-19-90)

(a) A user may designate some or all of the information on the disclosure form as a trade secret. Any information designated as a trade secret contained on the disclosure form shall not be disclosed to anyone except:

(1) An officer or employee of a governmental entity in connection with the official duties of such officer or employee under any law for the protection of health.

(2) Contractors of governmental entities when, in the opinion of the director of fire services, disclosure is necessary and required for the protection of health and the performance of a contract.

(3) Any physician where the physician determines that such information is necessary for the medical treatment of his patient.

(b) Any officer or employee of the city, or former officer or employee, who by virtue of such employment or official position has obtained possession of or has access to information, the disclosure of which is prohibited by this section, and who, knowing that disclosure of the information is prohibited, knowingly and willfully discloses the information in any manner to any person not entitled to receive it, shall be in violation of this section. For purposes of determining a violation of this section, a contractor who has been furnished information pursuant to this section shall be deemed an employee of the city. Any physician who has been furnished information or who has obtained information pursuant to this section and who, knowing that disclosure of the information is prohibited, knowingly and willfully discloses this information, shall be in violation of this section.

(c) Upon receipt of a request for the release of information to the public which includes information which the user has notified the fire department is a trade secret pursuant to subsection (a) of this section, the fire department shall notify the user in writing of the request by certified mail. The fire department shall release the information 30 days after the day of mailing the notice, unless, prior to the expiration of the 30 days, the user institutes an action in an appropriate court for a declaratory judgment that such information is subject to protection under subsection (b) of this section or an injunction prohibiting disclosure of such information to the general public.

(d) The provisions of this section shall not permit a user to refuse to disclose information required to be disclosed pursuant to this article.

(Ord. No. 90-11, § 4, 3-6-90; Ord. No. 90-24, § 1, 6-19-90)

The director of fire services shall make such rules and regulations as may be necessary to implement this article, including but not limited to the maintenance of a comprehensive list of substances which would be classified as hazardous materials under this article.

(Ord. No. 90-11, § 4, 3-6-90; Ord. No. 90-24, § 1, 6-19-90)

Any violation of the provisions of this article shall be a misdemeanor.

(Ord. No. 90-11, § 4, 3-6-90; Ord. No. 90-24, § 1, 6-19-90)