§ 13.20

The purpose of this article is to provide protection of public health, safety, welfare, the environment and natural resources within the jurisdiction of the Town of Los Gatos through the prevention and control of unauthorized discharges of hazardous material from storage facilities.

(Code 1968, § 35.010.005; Ord. No. 1891, § II, 3-2-92)

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

(a)

Abandoned, when referring to a storage facility, means out of service and not safeguarded in compliance with this article.

(b)

Corrective action.

(1)

With respect to an unauthorized discharge which is not solely comprised of a hazardous substance from an underground storage tank, corrective action means any activity necessary: to investigate and analyze the effects of an unauthorized discharge; to develop and propose a well supported plan that adequately protects or restores the public health, safety, welfare, environment, natural resources, and current and potential beneficial uses of water; to protect against present or potential endangerment to the public health or the environment; and to implement and evaluate the effectiveness of the activities.

(2)

With respect to an unauthorized discharge which is solely comprised of a hazardous substance from an underground storage tank, corrective action shall have the meaning set forth in Title 23 CCR section 2720, as the same may be amended hereafter, but without regard to the words "or removal" in subdivision (2) of that definition.

(c)

Corrective action costs means all costs incurred by the Town for undertaking corrective action and related enforcement actions with respect to the unauthorized discharge of hazardous material from a storage facility including, but not limited to costs for all necessary expert assistance in health, engineering and environmental science, expert witness services and legal service (including consultation and review or enforcement of any provision of law) incurred by the Town.

(d)

Discharge means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, escaping, leaching, dumping, or disposing into the environment.

(e)

Environment means any surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the Town or under the jurisdiction of the Town.

(f)

Enforcing Officer means the person(s) designated by the Town Council, including the Town Attorney and any person working under the direction of the Town Attorney, who are by such designation, authorized to take action on behalf of the Town in response to an unauthorized discharge of a hazardous material.

(g)

Facility means (1) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (2) site or area where hazardous material has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use.

(h)

Federal Act means Subchapter IX of Chapter 82 of Title 42 of the United States Code, as added by the Hazardous and Solid Waste Amendment of 1984, as it may subsequently be amended or supplemented.

(i)

Final order means an order which has become final.

(j)

Hazard class means Explosives A, Explosives B, Explosives C, Blasting Agents, Flammable Liquids, Combustible liquids, Flammable solids, Oxidizers, Organic peroxides, Corrosive materials, Flammable

gases, Nonflammable gases, Poisons A, Poisons B, Irritating materials, Etiologic agents, Radioactive materials, Other Regulated Materials (ORM) A, B, C, D and E. For purposes of this article, the U.S. Department of Transportation (DOT) definitions in 49 CFR Part 173 refer to transportation or hazards associated with transportation, they shall be deemed to refer to storage or other regulated activity under this article.

(k)

Hazardous material means any material which is subject to regulation pursuant to Division 3 of this article. A mixture shall be deemed to be a hazardous material if it either is a waste and contains any material regulated pursuant to Division 3 of this article, or is a nonwaste and contains one (1) percent by volume or more of any material regulated pursuant to Division 3 of this article.

(l)

Hazardous substance shall have the same meaning set forth in Health and Safety Code section 25281(f), as may be amended from time to time.

(m)

Natural resources means land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, or otherwise controlled by the Town.

(n)

Owner and operator shall have the meanings set forth in section 9001(3) and (4) of the Federal Act, 42 U.S.C. § 6991(3) and (4) and Health and Safety Code sections 25281(h) and (i).

(o)

Permit means any hazardous materials storage permit issued pursuant to this article, as well as any additional approvals thereto.

(p)

Permit quantity limit means the maximum amount of hazardous material that can be stored in a storage facility. Separate permit quantity limits will be set for each storage facility for which a permit is obtained in accordance with the requirements of this article.

(q)

Permitted discharge(s) means a discharge of any hazardous material expressly permitted by and in full compliance with the provisions of this article, or authorized and in full compliance 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 local sewer pretreatment requirements for publicly owned treatment works.

(r)

Permittee means any person, firm, or corporation to whom a permit is issued pursuant to this article and any authorized representative, agent or designee of such person, firm, or corporation.

(s)

Person means an individual, trust, firm, joint stock company, corporation, including a governmental corporation, partnership or association. Person also includes any city, county, district, the state, any department or agency thereof, or the United States to the extent authorized by law.

(t)

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

(u)

Primary containment means the first level of contaminant, i.e., the inside portion of that container which comes into immediate contact on its inner surface with the hazardous material being contained.

(v)

Product-tight means impervious to the hazardous material which is contained, or is to be contained, so as to prevent the seepage of the hazardous material from the primary containment. To be product-tight, the container shall be made of a material that is not subject to physical or chemical deterioration by the hazardous material being contained.

(w)

Responsible party means one (1) or more of the following:

(1)

Any person who owns or operates an underground storage tank used for the storage of any hazardous material;

(2)

In the case of any underground storage tank no longer in use, any person who owned or operated the underground storage tank immediately before the discontinuation of its use;

(3)

Any owner of property where an unauthorized discharge of a hazardous material from an underground storage tank has occurred; and

(4)

Any person who had or has control over an underground storage tank at the time of or following an unauthorized discharge of a hazardous material.

(x)

Secondary containment means the level of containment external to and separate from the primary containment.

(y)

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

(z)

Storage or store means the containment, handling or treatment of hazardous material, either on a temporary basis or for a period of years. Storage or store does not mean the storage of hazardous waste in a storage facility if the person operating the facility has been issued a hazardous waste facilities permit by the State Department of Health Services, pursuant to Health and Safety Code section 25200, or been granted interim status under Health and Safety Code section 25200.5.

(aa)

Storage facility means any one or combination of tanks, sumps, set floors, waste-treatment facilities, pipes, vaults or other portable or fixed containers, used, designated to be used, or, abandoned in a place containing hazardous materials after discontinuation of use for the storage of hazardous materials at a facility.

(bb)

Sump means a pit or well in which liquids collect.

(cc)

Tank means a stationary device designed to contain an accumulation of hazardous material which is constructed primarily of non-earthen materials, such as wood, concrete, steel and plastic, which provides structural support.

(dd)

Unauthorized discharge means any discharge except: (1) a permitted discharge; or (2) a discharge into secondary containment provided that the responsible party complies in a timely fashion with the reporting and clean-up provisions of Division 7 for such discharge.

(ee)

Underground storage tank means any one or combination of tanks (including underground pipes connected thereto) which is used to contain an accumulation of hazardous substance, and the volume of which (including the volume of the underground pipes connected thereto) is ten (10) per centum or more beneath the surface of the ground. Such term does not include any:

(1)

Farm or residential tank of one thousand one hundred (1,100) gallons or less capacity used for storing motor fuel for noncommercial purposes,

(2)

Tank used for storing heating oil for consumptive use on the premises where stored,

(3)

Septic tank,

(4)

Pipeline facility (including gathering lines) regulated under:

(i)

The Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. App. 1671, et seq.),

(ii)

The Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. App. 2001, et seq.), or

(iii)

Which is an intrastate pipeline facility regulated under state laws comparable to the provisions of law referred to in clause (i) or (ii) of this subparagraph,

(5)

Surface impoundment, pit, pond, or lagoon,

(6)

Storm water or waste water collection system,

(7)

Flow-through process tank,

(8)

Liquid trap or associated gathering lines directly related to oil or gas production and gathering operations, or

(9)

Storage tank situated in an underground area (such as a basement, cellar, mineworking, drift, shaft, or tunnel) if the storage tank is situated upon or above the surface of the floor.

(10)

Any pipes connected to any tank which is described in subparagraph (1) through (9).

(ff)

Underground tank system or tank system means an underground storage tank, connected piping, ancillary equipment, and containment system, if any.

(gg)

Wet floor means a floor which is used to routinely collect, contain or maintain standing liquids or to transmit standing liquids on a more or less continuous basis.

(Code 1968, § 35.010.020; Ord. No. 1889, § I, 2-18-92; Ord. No. 1891, § III, 3-2-92)

Cross reference— Definitions and rules of construction generally, § 1.10.015.

(a)

No person shall cause, suffer, or permit the storage of hazardous materials:

(1)

In a manner which violates a provision of this article or any other local, federal, or state statute, code, rule, or regulation relating to hazardous materials, hazardous substances, or any subcategory thereof; or

(2)

In a manner which causes or threatens an unauthorized discharge of hazardous materials or poses a significant risk of such unauthorized discharge.

(b)

Except with regard to underground storage tanks, the Enforcing Officer shall have the discretion to exempt an applicant from any specific requirement of this article, other than the requirement for secondary containment in underground storage facilities, except as provided in section 13.20.310(c)(4), or to require applicant to meet additional or modified requirements, where such action would be appropriate and consistent with achieving the general obligation of this article for protecting public health, safety, and welfare.

(Code 1968, § 35.010.010; Ord. No. 1891, § IV, 3-2-92)

(a)

Any person which stores any material regulated by section 13.20.230 which is not excluded by section 13.20.235 shall obtain and keep current a hazardous materials storage permit.

(b)

All such hazardous materials shall be contained in conformity with division 3 of this article.

(c)

The storage of such hazardous materials shall be in conformance with the approved hazardous materials management plan.

(d)

The Town shall apply for, and the Enforcing Officer shall consider and issue where appropriate, a permit, in conformity with this article, for the storage of hazardous materials by the Town in an underground storage tank, as those terms are defined in Health and Safety Code chapter 6.7 of division 20, wherever the Town's storage facility may be situated. Any other city, county, district or department, or agency of the State which stores any hazardous substance, in an underground storage tank, as those terms are defined in such chapter 6.7, in this Town without a permit meeting the requirements of chapter 6.7 issued by such other local agency, shall obtain and keep current a permit from the Town which conforms at a minimum to Health and Safety Code sections 25284 and 25284.1.

(Code 1968, § 35.010.015)

In addition to any other requirement, no person shall own or operate an underground storage tank unless a permit for its operation has been issued by the Town, except as provided in subdivision (c) and (d) of Health and Safety Code section 25284. All installation, construction, repair or modification, monitoring, closure, and removal of underground storage tanks shall comply with the regulations set forth in Article 3, 4, 5, 6, 7 and 8 of Underground Tank Regulations, 23 CAR Chapter 16 as the same may be amended from time to time.

(Ord. No. 1891, § V, 3-2-92)

Whenever the approval or satisfaction of the Enforcing Officer may be required in this article for a design, monitoring, testing or other technical submittal by an applicant or permittee, the Enforcing Officer may, in its discretion, require such applicant or permittee, at such applicant's or permittee's sole cost and expense, to retain a suitably qualified independent engineer, or chemist, or other appropriate professional consultant, acceptable to the Enforcing Officer, for the purpose of evaluating and rendering a professional opinion respecting the adequacy of such submittal to achieve the purposes of this article. The Enforcing Officer shall be entitled to rely on such evaluation and/or opinion of such engineer, chemist or professional consultant in making the relevant determinations provided for in this article.

(Code 1968, § 35.010.025)

(a)

The degree of protection required by this article is considered reasonable for regulatory purposes. The standards set forth herein are minimal standards and this article does not imply that compliance will ensure that there will be no unauthorized discharge of hazardous material. This article shall not create liability on the part of the Enforcing Officer, any officer, employee, or agent thereof or the Town, any officer, employee or agent thereof for any damages that result from reliance on this article or any administrative decision lawfully made thereunder. All persons handling, storing, using, processing, and disposing of hazardous materials within the Enforcing Officer's area should be and are advised to determine to their own satisfaction the level of protection in addition to that required by this article necessary or desirable to ensure that there is no unauthorized discharge of hazardous materials.

(b)

This article is not intended to create any different standard or obligation for the storage of carcinogens than is imposed for the storage of other hazardous materials. Hazardous materials are identified as carcinogens herein for public record purposes only and the identification of a material as a carcinogen shall not require a different or stricter application of the provisions of this article, nor notice to any person under any circumstances other than those expressly specified in this chapter, nor shall such identification create any other duty or obligation upon the Enforcing Officer different from or additional to those duties or obligations applicable to the storage of other hazardous materials.

(Code 1968, § 35.130.005)

Guidelines approved by the Enforcing Officer shall be maintained in the office of the Town Clerk. Such guidelines, in the areas addressed therein, shall serve as an interpretation of this article.

(Code 1968, § 35.130.010)

Subject to the limitations of due process, notwithstanding any other provisions of this Code, whenever the words "shall" or "must" are used in establishing a responsibility or duty of the Enforcing Officer, its elected or appointed officers, employees, or agents, it is the legislative intent that such words establish a discretionary responsibility or duty requiring the exercise of judgment and discretion.

(Code 1968, § 35.130.015)

Notwithstanding any other provision of this article:

(1)

A storage facility regulated by any State or Federal agency will be exempted from any conflicting provisions of this article.

(2)

If the storage facility is required to have a permit from the Department of Health Services under Health and Safety Code section 25100 et seq., it shall be exempted from any provision of this chapter which is covered by the regulations adopted under the above cited statute.

(3)

Whenever any provision of this article conflicts with the fire code, the provisions of this chapter supersede those of the fire code.

(Code 1968, § 35.130.020)

The Town will require its permit applicants and permittees to fill out, in addition to forms required for the Town's own purposes under this article, standardized forms based on the application form and annual report form prepared by the State Water Resources Control Board as specified by chapter 6.7 of the Health and Safety Code. All such applications for underground storage tanks shall be processed and copies forwarded as required by chapter 6.7 of Health and Safety Code and regulations issued pursuant thereto.

(Code 1968, § 35.130.030; Ord. No. 1891, § VI, 3-2-92)

Secs. 13.20.060—13.20.125. - Reserved.