Salinas Municipal Code Art. X Hazardous Materials Storage and Registration

The city council finds and declares:

(a) Purpose.

(1) The purpose of this chapter is to provide a continuing source of current information concerning hazardous substances and chemicals being utilized in the city of Salinas to protect the general health and safety of the public and to enable emergency personnel to respond safely and speedily to emergency situations which may arise.

(2) The city council declares that it is in the public interest to establish a continuing program for the purpose of preventing contamination from, and improper storage of, hazardous substances stored underground. It is the intent of the city council, in enacting this article to establish orderly procedures that will ensure that newly constructed underground storage tanks meet appropriate standards and that existing tanks be properly maintained, inspected, and tested so that the health, property, and resources of the people of the city will be protected.

(b) Findings.

(1) Essential information on the location, type, quantity and the health risks of hazardous materials used, stored, or disposed of in the city is not now available to firefighters, health officials, health care providers, law enforcement agencies and emergency communications officers.

(2) Hazardous substance and chemical information disclosure is necessary so that the city of Salinas and other affected public agencies may respond effectively to fire or other emergency involving materials that exhibit hazardous characteristics and may pose hazards to the community.

(3) Substances hazardous to the public health and safety, and to the environment, are stored prior to use or disposal in thousands of underground locations in the state.

(4) Underground tanks used for the storage of hazardous substances and wastes are potential sources of contamination of the ground and underlying aquifers, and may pose other dangers to public health and the environment.

(5) It is not the intent of this chapter to regulate the handling, use, processing or disposal of hazardous substances and chemicals.

(6) It is the intent of the city council that this article establish an orderly system by which establishments that contain materials which may be hazardous are identified, and information regarding these materials is made available to firefighters, health officials, health care providers, law enforcement agencies and emergency communications officers in such a way that the statutory privilege of trade secrecy is not abridged.

(Ord. No. 1897 (NCS), § 1.)

For purposes of this article, the following definitions apply:

(a) "Business" means an employer, self-employed individual, trust, firm, joint stock company, corporation, partnership, association, county, district, and the state, or any department or agency thereof. For purposes of this chapter, a business shall include both profit and nonprofit business.

(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 system developed by the Chemical Abstracts Service.

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

(e) "Establishment" means the physical premises of a business.

(f) "Handle" or "handling" means to use, store, treat or generate a hazardous material in any fashion.

(g) "Hazardous material" means any material or substance in "The Director's List of Hazardous Substance" developed by the Director of the Department of Industrial Relations pursuant to the provisions of the Hazardous Substances Information and Training Act (SB 1874) or cited in Article 9, Division 4, Title 22 of the California Administrative Code or is classified by the National Fire Protection Association as either a flammable liquid, a Class II combustible liquid or a Class III-A combustible liquid.

(h) "Hazardous materials registration form" means the form required to be filed with the health officer by every person who owns or operates an establishment which uses hazardous materials.

(i) "Hazardous waste," see hazardous material.

(j) "Hazardous substance," see hazardous material.

(k) "Laboratory" means a place equipped for testing, analysis or experimental study in a science—and utilizing hazardous materials as defined in this section in any amount.

(l) "Person" means an individual, trust, firm, joint stock company corporation, partnership, association, county, state or district.

(m) "Primary containment" means the first level of containment, such as the portion of a tank which comes into immediate contact on its inner surface with the hazardous substance being contained.

(n) "Product-tight" means impervious to the substance which is contained, or is to be contained, so as to prevent the seepage of the substance which it contains over the useful life of the tank.

(o) "Secondary containment" means the level of containment external to, and separate from the primary containment.

(p) "SIC Code" means the identification number assigned by the Standards Identification Code to specific types of businesses.

(q) "Single-walled" means construction with walls made of only one thickness of material. For the purpose of this chapter, laminated, coated, or clad materials shall be considered single-walled.

(r) "Storage" or "store" means the containment, handling or treatment of hazardous substances, either on a temporary basis or for a period of years. "Storage" or "store" does not mean the storage of hazardous wastes in an underground storage tank if the person operating the tank has been issued a hazardous waste facilities permit by the California Department of Health Services.

(s) "Substantial modification" means any changes to an underground storage tank facility which includes but is not limited to, one or more of the following: replacement of a tank, repairing a tank, installation of new pipeline, and installation or replacement of monitoring devices.

(t) Tank, abandoned. "Abandoned tank" means a tank that is not in use and not monitored and, or, safeguarded in compliance with regulations promulgated by the health officer pursuant to this article.

(u) "Unauthorized release" means any release or emission of any hazardous substance which does not conform to the provisions of this article, unless such release is authorized by the State Water Resources Control Board pursuant to Division 7 of the California Water Code.

(v) "Underground storage tank" means any one of combination of tanks, including pipes connected thereto, which is used for the storage of hazardous substances and which is substantially or totally beneath the surface of the ground. "Underground storage tank" does not include any of the following:

(1) Tanks which are located on a farm and store motor vehicle fuel which is used only to propel vehicles used primarily for agricultural purposes;

(2) Tanks used for aviation or motor vehicle fuel located within one mile of a farm and the tank is used by a licensed pest control operator, as defined in Section 11705 of the Food and Agricultural Code, who is primarily involved in agricultural pest control activities.

(w) "Use" includes the handling, processing or storage of hazardous materials.

(x) "User" means any person who uses or handles a hazardous material.

(Ord. No. 1897 (NCS), § 1; Ord. No. 1942 (NCS), § 1 (A, B).)

(a) Every underground storage tank installed after January 1, 1984, shall meet the following requirements:

(1) Be designated and constructed to provide primary and secondary levels of containment of the hazardous substances stored in them in accordance with the following performance standards:

(A) Primary containment shall be product-tight,

(B) Secondary containment shall be constructed to prevent structural weakening as a result of contact with any released hazardous substances, and also shall be capable of storing, for the maximum anticipated period of time necessary for the recovery of any released hazardous substance,

(C) In the case of an installation with one primary container, the secondary containment shall be large enough to contain at least one hundred percent of the volume of the primary tank,

(D) In the case of multiple primary tanks, the secondary container shall be large enough to contain one hundred fifty percent of the volume of the largest primary tank placed in it, or ten percent of the aggregate internal volume of all primary tanks, whichever is greater,

(E) If the facility is open to rainfall, then the secondary containment must be able to additionally accommodate the volume of a twenty-four-hour rainfall as determined by a one-hundred-year storm history,

(F) Single-walled containers do not fulfill the requirement of an underground storage tank providing both a primary and a secondary containment,

(G) The design and construction of underground storage tanks for motor vehicle fuels storage need not meet the requirements of paragraphs (A) to (F), inclusive, if the primary containment construction is of glass fibre reinforced plastic, cathodically protected steel, or steel clad with glass fibre reinforced plastic, any such alternative primary containment is installed in conjunction with a system that will intercept and direct a leak from any part of the tank to a monitoring well to detect any release of motor vehicle fuels stored in the tank and which is designed to provide early leak detection, response, and to protect groundwater from releases, and if the monitoring is in accordance with the alternative method identified in paragraph (3) of subdivision (c) of Section 16-72. Pressurized piping systems connection to underground storage tanks used for the storage of motor vehicle fuels and monitored in accordance with paragraph (3) of subdivision (c) of Section 16-72 shall also be deemed to meet the requirements of this subdivision;

(2) Be designed and constructed with a monitoring system capable of detecting the entry of the hazardous material stored in the primary containment into the secondary containment. If water could intrude into the secondary containment, a means of monitoring for water intrusion and for safely removing the water shall also be provided;

(3) When required by the health officer, a means of overfill protection for any primary tank, including an overfill prevention device or an attention-getting higher level alarm, or both. Primary tank filling operations of underground storage tanks containing motor vehicle fuels which are visually monitored and controlled by a facility operator satisfy the requirements of this paragraph;

(4) Different substances that in combination may cause a fire or explosion, or the production of flammable, toxic, or poisonous gas, or the deterioration of a primary and secondary container, shall be separated in both the primary and secondary containment, so as to avoid potential intermixing;

(5) If water could enter into the secondary containment by precipitation or infiltration, the facility shall contain a means of removing the water by the owner or operator. This removal system shall also provide for a means of analyzing the removed water for hazardous substance contamination and a means of disposing of the water, if so contaminated, at an authorized disposal facility.

(b) For every underground storage tank installed on or before January 1, 1984, and used for the storage of hazardous substances the following actions shall be taken:

(1) On a time schedule specified by the health officer, the owner shall outfit the facility with a monitoring system capable of detecting unauthorized releases of any hazardous substances stored in the facility, and thereafter, the operator shall monitor each facility, based on materials stored and the type of monitoring installed;

(2) Provide a means for visual inspection of the tank, wherever practical, for the purpose of the monitoring required by subdivision (a). Alternative methods of monitoring the tank on a monthly, or more frequent basis, may be required by the city, consistent with the regulations of the health officer.

(c) The alternative monitoring methods include, but are not limited to, the following methods:

(1) Pressure testing, vacuum testing or hydrostatic testing of the piping systems or underground storage tanks;

(2) A groundwater monitoring well or wells which are down gradient and adjacent to the underground storage tank, vapor analysis within a well where appropriate, and analysis of soil borings at the time of initial installation of the well. The health officer shall develop regulations specifying monitoring alternatives. The health officer shall approve the location and number of wells, the depth of wells and the sampling frequency, pursuant to these regulations;

(3) For monitoring tanks containing motor vehicle fuels, daily gauging and inventory reconciliation by the operator, if inventory records are kept on file for one year and are reviewed quarterly, the tank is tested for tightness hydrostatically or, when appropriate with pressure between three and five pounds, inclusive, per square inch at time intervals specified by the health officer and whenever any pressurized system has a leak detection device to monitor for leaks in the piping. The tank shall also be tested for tightness hydrostatically or where appropriate, with pressure between three and five pounds, inclusive, per square inch whenever there is a shortage greater than the amount which the health officer shall specify by regulation.

(d) Abandonment, Closure, or Temporary Closure of Underground Storage Tanks.

(1) No tanks shall be abandoned unless properly monitored and safeguarded in accordance with regulations promulgated by the health officer.

(2) Tanks which are temporarily out of service and are intended to be returned to use must continue to be monitored and inspected.

(3) Any tank which is not being monitored and inspected in accordance with this section must be closed or removed in accordance with regulations promulgated by the health officer.

(4) Whenever an abandoned tank is located, a plan for the closing or removing or the upgrading and permitting of such tank and permit application thereof shall be filed within ninety days of its discovery.

(e) Maintenance, Repair or Replacement.

(1) Permittee will carry out regular maintenance, and upkeep, in a careful and safe manner.

(2) Any substantial modification or repair of a facility other than minor, maintenance, or emergency repair shall be in accordance with plans to be submitted to the health officer and a permit to repair shall first be obtained prior to commencement of any such substantial modification or repair.

(3) Permittee may make emergency repairs to a facility in advance of seeking an additional permit approval whenever an immediate repair is required to prevent or contain an unauthorized discharge or to protect the integrity of the containment. However, within five working days after such emergency repairs have been started, permittee shall seek approval pursuant to this section by submitting drawings or other information adequate to describe the repairs to the health officer.

(f) Unauthorized Discharge of Hazardous Materials.

(1) Any unauthorized release from the primary containment which the operator is able to clean up within eight hours and which does not escape from the secondary containment, nor cause any deterioration of the secondary containment of the underground storage tank, shall be recorded on the operator's monitoring reports.

(2) Any unauthorized release which escapes from the secondary containment, increases the hazard of fire or explosion, or causes any deterioration of the secondary containment of the underground tank shall be reported by the operator to the health officer within twenty-four hours after the release has been detected or should have been detected. A full written report shall be transmitted by the owner or operator of the underground storage tanks within five working days of the occurrence of the release.

The health officer shall review the operating permit whenever there has been an unauthorized release or when he determines that the underground storage tank is unsafe. The health officer may terminate a permit for a facility when it has been determined that the operation of the facility would pose a threat to public health.

(g) No person shall construct or install any new underground tank or facility until a permit has been issued pursuant to this article.

(h) No person shall cause, permit or allow the storage of hazardous materials in underground tanks:

(1) In a manner which violates the provisions of the article or any other local, federal or state statute, code or regulation relating to hazardous materials; or

(2) In a manner which causes unauthorized discharge of hazardous materials or poses a significant risk of such discharge.

(Ord. No. 1897 (NCS), § 1; Ord. No. 1942 (NCS), § 1 (C).)

Any person, firm, or corporation which stores any hazardous material in an underground storage tank shall obtain and keep current, an underground storage tank permit issued pursuant to this article. One such permit shall be issued for a single facility. Additional approvals shall be obtained for any underground storage tank thereafter connected, installed, constructed, substantially modified, replaced, closed or removed.

(a) Application for Permit. Application for a new, amended, or renewed permit or any additional approval shall be made to the health officer on the form provided by the health officer.

(b) Approval of Permit. A permit shall not be approved until the health officer is satisfied that the storage approved adequately conforms to the provisions of this chapter.

(c) Provisional Permit. If the department of health finds that the proposal does not completely conform to the provisions of this article, it may approve a provisional permit, subject to conditions to be imposed by the health officer when such a provisional permit is feasible and does not appear to be detrimental to the public interest. The applicant must be informed in writing of the reasons why a full term permit was not issued.

(d) Temporary Permit. A temporary permit for storage may be issued where storage does not exceed thirty days and occurs no more frequently than every six months.

(e) Issuance of Permits.

(1) Upon the approval of a provisional, or full term permit by the health officer and upon the payment of any applicable fee, the permit shall issue and be delivered to the applicant. Such permit shall contain the following information:

(A) The name and address of the permittee for purposes of notice and service of process;

(B) The address of the facility for which the permit is issued;

(C) Authorization of the storage facility(s) approved under the permit, the permit quantity limit(s) and the approved hazard class or classes for the storage facility(s);

(D) The date the permit is effective;

(E) The date of expiration;

(F) When applicable, a designation that the permit is provisional;

(G) Any special conditions of the permit.

(2) The health officer shall keep a record of all permits issued and all conditions attached thereto.

(f) Term. A permit may be issued for a term of three years, excepting provisional permits and construction and abandonment permits which may be issued for any period of time up to six months and temporary permits which may be issued for no longer than thirty days.

(g) Repealed by Ord. No. 1942 (NCS), § 1 (E).

(h) Other permits. The permit requirements of this section are in addition to all other permits that may be required by any law or ordinance of the city of Salinas.

(Ord. No. 1897 (NCS), § 1; Ord. No. 1942 (NCS), § 1 (D, E).)

(a) Any person who owns or operates an establishment that contains at any one time during the year, hazardous materials as defined in Section 16-71 shall file a completed hazardous material registration form with the health officer within ninety days of the effective date of this article.

(b) Any person commencing operations in an establishment subject to this article shall file a completed registration form with the health officer within thirty days of the commencement of such activity.

(c) Any business which has a laboratory or laboratories containing any hazardous materials is not required to list individual materials but must be listed as a laboratory on the registration form and its location in the establishment must be identified.

(d) Any person who uses or handles a hazardous material must annually submit a completed registration form to the health officer by July 1 of each year.

(e) Any person required to file a registration form pursuant to this article shall file an amended registration form within thirty days of the following:

(1) Change of business address;

(2) Change of business ownership;

(3) Change of business name;

(4) Change of materials handled which would materially change the list of materials on file with the health officer.

(f) The registration form shall be approved and signed by a responsible employee of each business under penalty of perjury.

(g) The health officer shall record and maintain a file of all registration forms received. The registration information shall be made available only to agencies enumerated in Section 16-70(b).

(h) The health officer will be notified in case of change in emergency response personnel as reported on the registration form.

(i) When necessary, the health officer may request additional information on how and where hazardous materials are stored, for the purpose of distribution to fire departments and other emergency response teams that may be called upon to provide emergency services in connection with the handling and use of hazardous materials.

(Ord. No. 1897 (NCS), § 1.)

(a) Hazardous material registration forms shall be prepared by the health officer and made available to persons who use hazardous materials.

(b) The hazardous materials registration form shall include requests for the following information:

(1) Identification information including but not limited to name, address, phone number and assessor's parcel number;

(2) The names and phone numbers of at least two people representing the business able to assist agency personnel in the event of an emergency during nonbusiness hours;

(3) The SIC code of the business if applicable;

(4) A list of the hazardous materials at the establishment designated by CAS number, chemical name and common name as well as the form in which the material is stored and the maximum amount present during a thirty-day period;

(5) Each business shall designate in the appropriate box if there is a laboratory at its establishment;

(6) A sketch showing the location of any laboratory at the establishment;

(7) For businesses consisting of more than one building, a sketch showing where the hazardous material is stored.

(Ord. No. 1897 (NCS), § 1.)

The following shall be exempt from the disclosure requirements of this article:

(a) Any person who handles radioactive materials that are exempt under Sections 30180 and 30345 of Title 17 of the California Administrative Code or licensed with the State Department of Health Services.

(b) Hazardous substances contained only in consumer products packaged for distribution to, and use by, the general public.

(c) Any person using, handling, or storing less than five hundred pounds or fifty-five gallons a month, whichever is lesser, of a hazardous material. The exemption of this subsection shall not apply to the use, handling or storage of known carcinogens except to the extent that such carcinogens are used or intended to be used for medical or therapeutic purposes.

(d) Any person, while engaged in the transportation of hazardous materials, including storage directly incident to transportation, provided that such materials are accompanied by shipping papers prepared in accordance with the provisions of the Federal Hazardous Materials Regulations (40 C.F.R., Subchapter C).

(Ord. No. 1897 (NCS), § 1.)

(a) If a person believes that a request for information made by the disclosure form involves the release of a trade secret or proprietary information, the person shall submit to the health officer, adequate information and substantiation of the claim of trade secrecy.

(b) The health officer and the proper public agencies shall protect from disclosure any and all trade secrets and proprietary information coming into his or her possession, as defined in subsection (d) of Section 6254.7 of the California Government Code and Section 1060 of the California Evidence Code, when requested in writing by the user.

(c) Any trade secret or proprietary information reported to or otherwise obtained by the health officer shall not be disclosed to anyone except an officer or employee of the city, the state or the federal government who demonstrates a need to know the information in connection with their official duties.

(d) For the purposes 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) The health officer, with city attorney, upon receipt of a request for his designation of information submitted as a trade secret by a user, shall determine whether any or all of the information so submitted is properly designated trade secret or proprietary information. No information shall be disclosed until a final determination of trade secret is made.

(f) If the health officer and city attorney determine that the submitted information should be designated as trade secret or proprietary information, then the materials involved will be identified only by the properties and returned to the appropriate agencies.

(g) If the health officer and city attorney determine that the information is not a trade secret:

(1) The city attorney shall notify the person by certified mail;

(2) The person shall have thirty days after receipt of notification to request reconsideration of the city attorney's determination and to provide the city attorney with any further data supporting the claim of trade secrecy privilege;

(3) The city attorney shall determine whether such information is protected as a trade secret or proprietary information within fifteen days after receipt of the additional data supporting the claim of trade secrecy or, if no additional data is submitted, within thirty days of the original notice. The city attorney shall notify the person and any party who has requested the information that it is not protected as a trade secret. The final notice shall also specify a date, not sooner than fifteen days after the date of mailing of the final notice, when the information may be made available to the appropriate public agencies;

(4) Prior to the date specified in the final notice, the person may institute an action in the Superior Court for a declaratory judgment as to whether such information is subject to protection under subdivision (a).

(h) The provisions of this section shall not permit a person to refuse to file a disclosure information form to the city attorney except under the conditions set forth in subsection (c).

(Ord. No. 1897 (NCS), § 1.)

(a) The health officer is authorized and empowered to enforce the provisions of this article. The enforcement shall include the inspection of facilities and other activities directly related to the enforcement of this chapter. No person shall obstruct or interfere with the health officer in the performance of these duties.

(b) Any person who violates any provisions of this article shall be deemed guilty of a misdemeanor.

(Ord. No. 1897 (NCS), § 1.)

(a) The health officer shall maintain active files of all registration forms received for a period of three years. Registration forms which are more than three years old shall be placed in inactive files and retained for a period of thirty years.

(b) The health officer shall index registration forms by street addresses and parcel numbers, and shall cross reference them by business name, and by the SIC code numbers and the CAS numbers listed on the registration forms.

(Ord. No. 1897 (NCS), § 1.)

The city shall, by resolution, establish fees sufficient to recover the costs in the administration of this article and no application shall be accepted unless and until the fees have been paid.

(Ord. No. 1897 (NCS), § 1; Ord. No. 1942 (NCS), § 1 (F).)

(a) Any operator of an underground storage tank shall be liable for a civil penalty of not less than five hundred dollars or more than five thousand dollars per day for any of the following:

(1) Operates an underground storage tank which has not been issued a permit;

(2) Fails to monitor the underground storage tank, as required by the permit;

(3) Fails to report an unauthorized release as required by Section 16-72.

(b) Any owner of an underground storage tank shall be liable for a civil penalty of not less than five hundred or more than five thousand dollars per day for any of the following:

(1) Failure to obtain a permit as specified by this article;

(2) Failure to repair an underground tank in accordance with the provisions of this article;

(3) Improper abandonment or improper closure of any underground tank subject to the provisions of this article;

(4) Knowing failure to take reasonable steps to assure compliance with this article by the operator of an underground tank.

(c) Any person who falsifies any monitoring records required by this article, or knowingly fails to report an unauthorized release, shall, upon conviction, be punished by a fine of not less than five thousand dollars or more than ten thousand dollars, or by imprisonment in the county jail for not to exceed one year, or by both that fine and imprisonment.

(d) In determining both the civil and criminal penalties imposed pursuant to this section, the court shall consider all relevant circumstances, including, but not limited to, the extent of harm or potential harm caused by the violation, the nature of the violation and the period of time over which it occurred, the frequency of past violations, and the corrective action, if any, taken by the person who holds the permit.

(e) Penalties under this section are in addition to, and do not supersede or limit, any and all other legal remedies and penalties, civil or criminal, which may be applicable under other laws.

(Ord. No. 1942 (NCS), § 1 (H).)

(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 city, any officer or employee 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 city 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 article, nor shall such identification create any other duty or obligation upon city different from or additional to those duties or obligations applicable to the storage of other hazardous materials.

(Ord. No. 1942 (NCS), § 1 (I).)

Subject to the limitations of due process, notwithstanding any other provision of the Salinas City Code, 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. No. 1942 (NCS), § 1 (J).)

If any section, subsection, sentence, clause or phrase of this article 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 hereby declares that it would have passed this article and each and every section, subsection, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of this chapter would be subsequently declared invalid or unconstitutional.

(Ord. No. 1897 (NCS), § 1: Ord. No. 1942 (NCS), § 1 (G).)