Morgan Hill Municipal Code Art. I General Provisions

The purpose of this chapter is the protection of health, life, resources and property through prevention and control of unauthorized discharges of hazardous materials.

(Ord. 636 N.S. (part), 1983)

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

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

B. "Facility" means a building or buildings, appurtenant structures and surrounding land area used by a single location or site.

C. "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 chapter, the U.S. Department of Transportation (DOT) definitions in 49 CFR Part 173, as amended shall be utilized; however, whenever the 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 chapter.

D. "Hazardous material" means any material which is subject to regulation pursuant to Article IV of this chapter. A mixture shall be deemed to be a hazardous material if it either is a waste and contains any material regulated pursuant to Article IV of this chapter, or is a nonwaste and contains one percent by volume or more of any material regulated pursuant to Article IV of this chapter.

E. "Officer" means the employee assigned by the city to administer the provisions of this chapter or any designee of such employee.

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

G. "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 chapter.

H. "Permittee" 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.

I. "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 hazardous materials in interstate or intrastate commerce or to transfer hazardous materials in bulk to or from a marine vessel.

J. "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.

K. "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.

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

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

N. "Storage facility" means any one combination of tanks, sumps, wet floors, waste treatment facilities, pipes, vaults, portable or fixed containers, equipment, building, structure, installation, site, area, appurtenant structure, or surrounding land area where hazardous materials are stored, used, dispensed, handled, placed, maintained or located.

O. "Sump" means a pit or well in which liquids collect.

P. "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 board pursuant to the Porter Cologne Water Quality Act, or with local sewer pretreatment requirements for publicly owned treatment works.*

Q. "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.

R. "Vadose zone" or "unsaturated zone" means those underlying strata that are above the water table.

(Ord. 1082 N.S. § 1, 1992; Ord. 849 N.S. § 1, 1987; Ord. 636 N.S. (part), 1983)

* Controlling agencies may differ for different local jurisdictions.

No person, firm or corporation, without due regard to intent or negligence, shall cause, suffer or permit the storage or use 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 a significant risk of such unauthorized discharge.

(Ord. 947 N.S. § 1, 1989: Ord. 636 N.S. (part), 1983)

The city shall have discretion to exempt an applicant from any specific requirements of this chapter, other than the requirement for secondary containment in underground storage facilities, except as provided in Section 8.40.520 of this chapter, or to require the applicant to meet additional or modified requirements, where such action would be appropriate and consistent with achieving the general obligation of this chapter for protecting public health, safety and welfare.

(Ord. 636 N.S. (part), 1983)

A. Any person, firm or corporation which stores any material regulated by Section 8.40.460 of this chapter, which is not excluded by Section 8.40.470 of this chapter, shall obtain and keep current a hazardous materials storage permit.

B. All such hazardous materials shall be contained in conformity with Article V of this chapter.

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

D. The city shall apply for, and the officer shall consider and issue where appropriate, a permit, in conformity with this chapter, for the storage of hazardous materials by the city in underground storage tank, as those terms are defined in Chapter 6.7 of Division 20 of the California Health and Safety Code, wherever the city'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 Chapter 6.7 of Division 20 of the California Health and Safety Code, in the city, without a permit meeting the requirements of said Chapter 6.7 issued by such other local agency, shall obtain and keep current a permit from the city which conforms at a minimum to Sections 25284 and 25284.1 of the Health and Safety Code of the state.

(Ord. 655 N.S (part), 1983: Ord. 636 N.S. (part), 1983)

Subject to the limitations of due process, notwithstanding, in any other provision of this chapter whenever the words "shall" or "must" are used in establishing a responsibility or duty of the city, 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.

(Ord. 636 N.S. (part), 1983)

Whenever the approval or satisfaction of the city may be require in this chapter for a design, monitoring, testing or other technical submittal by an applicant or permittee, the city 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 city, for the purpose of evaluating and rendering a professional opinion respecting the adequacy of such submittal to achieve the purposes of this chapter. The city 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 chapter.

(Ord. 636 N.S. (part), 1983)

Guidelines approved by the city manager shall be maintained in the office of the city clerk. Such guidelines, in the areas addressed therein, shall serve as an interpretation of this chapter.

(Ord. 636 N.S. (part), 1983)

Notwithstanding any other provision of this chapter:

A. A storage facility regulated by any state or federal agency will be exempted from any conflicting provision of this chapter.

B. 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 statute cited in this subsection.

C. Whenever the requirements of any provision of this chapter conflict with those of the fire code as adopted by the city, the stricter requirement shall prevail.

(Ord. 1052 N.S. § 2, 1992; Ord. 636 N.S. (part), 1983)

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

B. This chapter 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 in this chapter 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 chapter, 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 city different from or additional to those duties or obligations applicable to the storage of other hazardous materials.

(Ord. 636 N.S. (part), 1983)

In the event any subsection, sentence, clause or phrase incorporated in 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 the chapter. The city council declares that it would have adopted the ordinance codified in this chapter and each and every section, subsection, sentence, clause or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional.

(Ord. 1082 N.S. § 3, 1993)