Montague Municipal Code Ch. 8.12 Hazardous Materials Disclosure

Sections:

• 8.12.010 Purpose of provisions.

• 8.12.020 Definitions.

• 8.12.030 Criteria for designation.

• 8.12.040 Disclosure forms—Filing requirements.

• 8.12.050 Disclosure forms—Administrative procedures.

• 8.12.060 Disclosure form requirements.

• 8.12.070 Additional information required when.

• 8.12.080 Exemptions.

• 8.12.090 Fees.

• 8.12.100 Enforcement.

• 8.12.110 Trade secret protection.

• 8.12.120 Violation—Penalty.

• 8.12.130 Severability.

The city makes the following findings and declares:

A. Hazardous substances and hazardous wastes present in the community may pose acute and chronic health hazards to individuals who live and work in the city and who are exposed to such substances as a result of fires, spills, industrial accidents or other types of releases or emissions.

B. The people who live and work in the city have a right and need to know the use and potential hazards of hazardous materials in the community in order to plan for and respond to potential exposure to such materials.

C. Basic information on the location, type and health risks of hazardous materials used, stored or disposed of in the city is not now available to fire-fighters, law enforcement officers, health officials, planners, elected officials and residents.

D. It is the intent of the council that this chapter recognize the community's right and need for basic information on the use and disposal of hazardous materials in the city and that it establish an orderly system for the provision of such information.

E. It is further the intent of the council that the system of disclosure set forth in this chapter shall provide the information essential to fire-fighters, law enforcement officers and residents in meeting their responsibilities for the health and welfare of the community in such a way that the statutory privilege of trade secrecy is not abridged. (Ord. 90-6 (part), 1990)

For the purpose of this chapter, unless otherwise apparent from the context, certain words and phrases used in this chapter are defined as follows:

• A. “Carcinogen” means a substance for which:

  1. The International Agency for Research on Cancer states that there is sufficient evidence of carcinogenicity in animals, or that there is a potential of human carcinogenicity, or that the substance is a confirmed human carcinogen; or

  2. The National Cancer Institute has found in an animal bioassay that there is positive evidence of carcinogenesis in animals or humans.

• B. “CAS number” means the unique identification number assigned by the Chemical Abstracts Service to specific chemical substances.

• C. “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 Abstract Service.

• D. “Common name” means any designation or identification, such as a code name, code number, trade name, or brand name used to identify the substance other than by its chemical name.

• E. “Coordinator” shall be designated by the city council.

• F. “Disclosure form” means the form and information submitted by the user or handler of hazardous materials to the coordinator.

G. “EPA waste stream code” means the identification number assigned pursuant to the regulations of the United States Environmental Protection Agency to specific types of hazardous wastes.

• H. “Hazardous materials” mean and include any of the following:

  1. A hazardous substance;

  2. A radioactive material;

3. A carcinogen;

4. A hazardous waste; or

5. Any material ordered added to the list of hazardous materials by the coordinator with the approval of the council based on the findings that the material, because of its quantity, concentration, or physical characteristics, poses a significant present or potential hazard to human health and safety or to the environment if released into the community.

• I. “Hazardous substance” means any substance or product:

  1. For which the manufacturer or producer is required to prepare an MSDS for the substance or product pursuant to the Hazardous Substance Information and Training Act (commencing with Section 6360 of Chapter 2.5 of Part 1 of Division 5 of the Labor Code of the state) or pursuant to any applicable federal law or regulation; or

  2. Which is listed as radioactive material set forth in Chapter 1 of Title 10, Appendix B, maintained and updated by the Nuclear Regulatory Commission.

• J. “Hazardous waste” means hazardous or extremely hazardous waste as defined by Sections 25115 and 25117 of the Health and Safety Code of the state and set forth in Sections 66680 and 66685 of Title 22 of the California Administrative Code.

• K. “Handle” means to generate, treat, store or dispose of hazardous waste in any fashion.

• L. “MSDS” means a material safety data sheet prepared pursuant to Section 6390 of the Labor Code of the state.

M. “Person” means an individual, trust, firm, joint stock company, corporation, partnership, association, city, county, district, or the state or any department or agency thereof.

N. “Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injection, escaping, leaching, dumping or disposing into the environment.

• O. “Use” means and includes the handling, processing, or storage of a hazardous substance.

• P. “Physician” means any person who holds a valid certificate from the state to practice medicine.

• Q. “User” means any person who uses a hazardous substance or handles a hazardous waste. (Ord. 90-6 (part), 1990)

A A material may be added to the list of hazardous materials set forth in Section 8.12.020 of this chapter upon finding by the city council or their designee that it satisfies the following criteria: the material, 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.

• B. A material added to the list of hazardous materials pursuant to subsection A of this section shall be

designated as either a hazardous substance or hazardous waste by the city council or their designee.

• C. Any material added to the list of hazardous materials by the city council or their designee shall be set forth in this chapter in the form of an addendum. (Ord. 90-6 (part), 1990)

• A. Any person who uses or handles a hazardous material shall annually submit a completed disclosure form as follows:

  1. Any person required to submit an application for a business license, at the time of filing a business license application or renewal, shall also file a disclosure form with the city clerk;

  2. Any person not required to obtain a business license who uses or handles hazardous material at a facility or site shall submit a completed disclosure form to the city clerk on or before January 2nd of each year.

• B. An amendment to the disclosure form shall be filed fifteen days prior to the following changes:

  1. Change of business address;

  2. Change of business ownership;

  3. Change of business name.

• C. An amendment to the disclosure form shall be filed within fifteen days subsequent to any of the following:

  1. A change in the quantity of a previously reported hazardous material that exceeds an increase to one hundred percent or more of such material;

  2. The use or handling of a previously unreported hazardous material; or

  3. A change in the name, title, or telephone number of persons available to assist in emergency responses.

D. The amendment to the disclosure form as required by subsections B and C of this section shall contain only new information about a specific change and shall not require the resubmittal of an entire disclosure form.

E. Each disclosure form shall be accompanied by a filing fee set by resolution of the council. (Ord. 90-6 (part), 1990)

A. Upon the receipt of a disclosure form, the city clerk shall ensure that the name and address on the form are correct and shall forward the disclosure form to the police and fire department.

B. The coordinator shall maintain files on all disclosure forms received. Subject to the provisions of Section 8.12.110 of this chapter relating to trade secrets, such files shall be open to the public during normal business hours. The disclosure forms shall be filed by street address.

C. The coordinator shall keep a record of all persons who request access to the hazardous materials disclosure forms. The record shall include:

1. The person's name, address and telephone number;

2. The name and address of the person, business or governmental agency such person represents; and

3. The identity of the specific files examined or requested to be copied.

• D. The coordinator shall have ten days to verify the applicant's identity prior to the review of disclosure forms.

• E. Such files are released pursuant to the Public Records Act (Section 6250 of the Government Code of the state) on a right to know basis. This chapter, however, seeks to protect the disclosure pursuant to Section 6255 of said government code because such disclosure poses a threat to the security of the facility. (Ord. 90-6 (part), 1990)

The disclosure form shall include the following:

A. A listing of the chemical name, any common name, and the CAS number of every hazardous substance used by the person completing the disclosure form;

B. The EPA Waste Stream Code of every hazardous waste handled by the person completing the disclosure form;

• C. The maximum amount of each hazardous material disclosed in either subsection A or B of this section which hazardous material is handled or used at any one time by the user over the course of the year;

• D. Upon request, the MSDS for the hazardous substance used by the person completing the disclosure form;

E. Sufficient information on how the hazardous materials disclosed in subsections A and B of this section are handled or used by the user to allow fire and safety personnel to prepare adequate emergency responses to potential releases of the hazardous materials;

F. Sufficient information on any releases of the hazardous materials disclosed in subsections A and B of this section into the air, water, sewers or land to permit the city to understand the sources and content of hazardous material releases;

• G. The file code of the business, if applicable;

H. The name and telephone number of the person representing the business and able to assist emergency personnel in the event of an emergency involving the business during nonbusiness hours; and,

I. The standardized disclosure form shall be designed so that information designated by the user as a trade secret will be on a separate form or page from information which is not protected under the trade secret provisions of Section 8.12.110 of this chapter. (Ord. 90-6 (part), 1990)

A. Upon request, all users shall provide information in addition to that required in the disclosure form filed pursuant to Section 8.12.040 of this chapter as follows:

1. To the coordinator any information determined by the coordinator to be necessary to protect the public health, safety or the environment;

2. All accidental spills shall immediately be reported to the coordinator. The person reporting the spill shall advise the coordinator of the material's scientific and common name and supply and MSDS, the CAS number and what cleanup procedures have occurred. For the purpose of this section, “material” shall include all substances listed in Section 8.12.020 of this chapter. Nothing in this section shall exempt the reporting person, business, or the like from the reporting requirements of spills under the provisions of federal and state laws; and,

3. To any physician where the physician determines that such information is necessary to the medical treatment of a patient.

B. Any additional information furnished under subsections A.1. and A.3. of this section shall be subject to the trade secret provisions of Section 8.12.110 of this chapter. (Ord. 90-6 (part), 1990)

The following materials, persons and entities shall be exempt from disclosure under this chapter:

• A. Hazardous substances contained in food, drug and cosmetic or tobacco products;

B. Any person using or handling less than one hundred pounds, or fifty gallons, or one hundred cubic feet of a gaseous material at a standard temperature and pressure at any one time, whichever is the lesser, or a hazardous material shall be exempted from the requirement of disclosure of such use or handling, unless the coordinator has provided notice that it has lowered the weight or volume limits of his exemption for a specific hazardous material in response to public health concerns;

C. The exemption of this subsection 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;

D. Hazardous substances contained solely in consumer products packages for use by, and distributed to, the general public; and,

E. Any person while engaged in the transportation of hazardous materials, including storage directly incidental thereto, provided such materials are accompanied by shipping papers prepared in accordance with the provisions of 49 Code of Federal Regulations, subchapter (c). (Ord. 90-6 (part), 1990)

The council shall establish by resolution a schedule of fees to be paid by the persons using or handling hazardous materials which fee is sufficient to cover the costs to the city of administering this chapter. (Ord. 90-6 (part), 1990)

The coordinator shall conduct a minimum of an annual inspection of allocations storing hazardous materials as defined in Section 8.12.020 of this chapter. (Ord. 90-6 (part), 1990)

A. If a user believes that a request for information made in the disclosure from involves the release of a trade secret, the user shall so notify the coordinator in writing. As used in this chapter “trade secret” shall have the meaning given to it by Section 6254.7 of the Government Code of the state and Section 1060 of the Evidence Code of the state. The form shall nonetheless be filed with the coordinator pursuant to this section.

B. Subject to the provisions of this section, the coordinator shall protect from disclosure any trade secret coming into its possession when requested to do so in writing by the user.

C. Any information reported to or otherwise obtained by the coordinator, or any of its representatives or employees, which is exempt from disclosure pursuant to subsection B of this section shall not be disclosed to anyone except:

1. To an officer or employee of the city, the state or the United States of America in connection with the official duties of such officer or employee under any law for the protection of the health, or to contractors with the city and their employees if, in the opinion of the coordinator, such disclosure is necessary and required for the satisfactory performance of a contract for performance or work; or,

2. To any physician where the physician determines that such information is necessary to the medical treatment of a patient.

D. For the purpose of this section, fire and emergency response personnel and county health personnel operating within the jurisdiction of the city shall be considered employees of the city.

E. Any officer or employee of the city, or former officer or employee, who, by virtue of such employment for official position, has obtained possession of or has access to information, the disclosure of which is prohibited by this section and how, knowing that the disclosure of the information is prohibited, knowingly and wilfully discloses the information in any manner to any person not entitled to receive it shall be guilty of a misdemeanor. Any contractor with the city, and any employee of such contractor who has been furnished information as authorized by this section shall be considered to be an employee of the city for the purposes of this section. Any physician who has been furnished information or who has obtained information pursuant to subsection C of this section and who, knowing that the disclosure of the information is prohibited, knowingly and wilfully discloses the information shall be guilty of a misdemeanor.

F. Information certified by appropriate officials of the United States, as necessarily kept secret for national defense purposes, shall be accorded the full protection against disclosure as specified by such officials or in accordance with the laws of the United States.

G. Upon receipt of a request for the release of information to the public health which includes information which the user had notified the coordinator is a trade secret pursuant to subsection A of this section, the coordinator shall notify the user in writing of such request by certified mail. The coordinator shall release the information thirty days after the day of mailing such notice unless, prior to the expiration of said thirty 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 and/or an injunction prohibiting the disclosure of such information to the general public. Pursuant to this section, the user and the public requesting the information shall be considered the real parties of interest in any legal action, and the city, if named, will be a disinterested party.

H. The provisions of this section shall not permit a user to refuse to disclose the information required pursuant to this chapter to the coordinator. (Ord. 90-6 (part), 1990)

Any person who knowingly and wilfully violates any of the provisions of this chapter shall be guilty of a misdemeanor and upon conviction thereof, shall be punished by a fine of not more than five hundred dollars or by imprisonment in the county jail for not more than six months or by both such fine and imprisonment. Such person shall be deemed guilty of a separate offense for each and every day during any portion of which a violation of this chapter is committed or continued by such person. (Ord. 90-6 (part), 1990)

If any section, subsection, sentence, clause or phrase of this chapter is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction such decision shall not affect the validity of the remaining portions of this chapter. The council hereby declares that it would have adopted this chapter and each and every section, subsection, sentence, clause or phrase not declared unconstitutional without regard to whether any portion of this chapter would be subsequently declared invalid or unconstitutional. (Ord. 90-6 (part), 1990)