San Clemente Municipal Code Ch. 8.36 Hazardous Materials

For the purpose of this chapter, the terms listed in this section shall be defined as follows:

"Acutely hazardous materials" means any chemical on the list prepared by the Environmental Protection Agency and classified as an acutely toxic material according to the criteria set forth in the Chemical Emergency Preparedness Program Interim Guidance document on November 1, 1985, and any supplemental amendments to the document.

"Carcinogen" means a substance which causes cancer. For purposes of this chapter, carcinogens are those substances regulated by CAL/OSHA Publication S-640.

"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 Section 8.36.050.

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

"Hazardous material" means any substance or hazardous waste as defined in this subsection, or any material designated pursuant to Section 8.36.020. "Hazardous material" means any substance or product:

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

2. Listed in Section 25316 of the Health and Safety Code; or

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

4. Which is listed as a legal carcinogen from the California Administrative Code, Title 8, Subchapter 7, Group 16, and those substances specified in the definitions of carcinogen in this section; or

5. Which the Director of the Department of Food and Agriculture classifies as pesticides; or

6. Which the EPA classifies as priority organic pollutants.

"Hazardous waste" or "extremely hazardous waste" means any material that is identified in:

1. Sections 25115 and 25117 of the California Health and Safety Code, and set forth in Sections 66680 and 66684 of Title 22 of the California Administrative Code; or

2. The Code of Federal Regulations, Title 40, Section 261.31 — 261.33.

"Health Official" means the health officer of the county or his or her designated representative.

"MSDS" means a material safety data sheet prepared pursuant to Section 6390 of the California Labor Code, 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, association, city, county, district, and the state, or any department or agency thereof.

"Physician" means any person who holds a valid certificate from the State of California to practice the healing arts.

"SIC code" means the identification number assigned by the standard industrial classification code to specific types of businesses.

"Storage" or "storing" means 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 storing of a hazardous substance.

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

(Prior code § 21B-1)

A material may be added to the list of hazardous materials as defined in Section 8.36.010, upon a finding by the Fire Chief that 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. A material added to the list of hazardous materials pursuant to this section shall be designated as either a hazardous material or hazardous waste. The Fire Chief may use the Uniform Fire Code published by the Western Fire Chiefs to assist him or her in requiring types and amounts of hazardous materials to be disclosed.

(Ord. 1140 § 14 (part), 1994; prior code § 21B-2)

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 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 Fire Department within thirty (30) days of becoming a user or handler. Thereafter, such person shall comply with the provisions of subsection A of this section.

C. .....The Fire Department may specify in writing such other times that the submittal of the disclosure form may be necessary.

D. .....Any person who fails to file a disclosure form within the time limits set forth pursuant to subsections A, B or C of this section shall pay such late filing fee for such late filing as established pursuant to Section 8.36.090. The late filing fee shall be submitted with the disclosure form and shall be in addition to regularly assessed fees, if any.

E. .....Within fifteen (15) days of any:

1. Significant change in the use or handling of a hazardous material;

2. New use or handling of a previously undisclosed hazardous material;

3. Change of business address;

4. Change of business ownership;

5. Change of business name;

6. Closure of business.

Any person who has filed a disclosure form pursuant to subsections A, B or C of this section shall submit to the Fire Department a new, completed disclosure form specifying the new use, handling or other appropriate information required.

(Ord. 1140 § 15, 1994; prior code § 21B-3)

A. .....Upon receipt of a disclosure form, the Fire Department shall maintain files of all disclosure forms received. Subject to the provisions of Section 8.36.090 relating to trade secrets, these files shall be open to the public during normal business hours.

B. .....The Fire Department 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, as determined by the showing of appropriate identification;

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

3. Identification of the specific file(s) examined or requested to be copied;

4. Reason for which the person requests the information.

(Prior code § 21B-4)

A. .....The disclosure required of businesses shall include, but not be limited to, requests for the following:

1. A copy of the material safety data sheets 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, disclosed in subsection (A)(2) of this section, which is handled or used at any one (1) 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 (2) 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; and

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

(Prior code § 21B-5)

The following materials, persons or entities shall be exempt, as specified, from the disclosure requirements under this chapter:

A. A material designated as hazardous material by this chapter solely by its presence on the Nuclear Regulatory Commission list of radioactive materials shall be exempt from the requirement that a MSDS be submitted with the disclosure form.

B. Hazardous materials or substances contained in food, drug, cosmetic or tobacco products.

C. Any person using or handling less than five hundred (500) pounds, fifty-five (55) gallons or two thousand four hundred (2400) cubic feet, combined total of all hazardous materials on hand 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 limits of this exemption for a specific hazardous material have been lowered in response to public health concerns or to meet the intent and requirements of the Uniform Fire Code (UFC).

The exemption of this subsection shall not apply to the following:

1. Commercial pesticides (not normally sold to the public);

2. Class A poisons (49 CFR 173.326);

3. Class A explosives (49 CFR 173.53);

4. Carcinogens as defined in this chapter;

5. Unsealed radioactive isotopes;

6. Acutely hazardous materials as defined in this chapter.

D. Hazardous materials contained solely in consumer products packaged for use by and distributed to the general public, unless the product is repackaged or altered in any way; provided, however, that the manufacture and distribution of these products are not exempt or required to be permitted or reported by the Uniform Fire Code.

E. Any person, while engaged in the transportation of hazardous materials, including storage directly incident thereto, provided that such materials are accompanied by shipping papers prepared in accordance with the provisions of 49 Code of Federal Regulations, Subchapter c.

F. No MSDS shall be required for any 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 fifteen (15) days after receipt by the user of the MSDS.

G. Infectious waste generated by hospitals, medical centers, clinics and other health care facilities that are regulated under Title 22 of the California Administrative Code.

H. Specific materials which do not present a significant danger to the community shall be exempt as follows:

1. Inert compressed gases such as helium, argon and carbon dioxide in quantities equal to or less than one thousand (1,000) cubic feet on site at any one (1) time, shall be exempt from both disclosure and business emergency plan requirements;

2. Oxygen and nitrous oxide maintained by doctors, dentists and veterinarians in quantities equal to or less than one thousand (1,000) cubic feet on site at one (1) time shall be exempt from both disclosure and business plan requirements;

3. Carbon dioxide, halon and dry chemical extinguishing agents when used in an approved fire protection system shall be exempt from both disclosure and business emergency plan requirements;

4. Propane and butane used for cooking or heating in an area where natural gas service is not available, in quantities less than five hundred gallons on site at one time, shall be exempt from fees and business emergency plan requirements, but shall be subject to disclosure at the discretion of the director of fire protection.

(Ord. 1140 § 14 (part), 1994; prior code § 21B-6)

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 Official.

(Prior code § 21B-7)

When required by the Fire Chief, areas containing hazardous materials shall be identified. Such identification may include signs, color coding, posting lists of materials and MSDS, or other notices as may be deemed necessary.

(Ord. 1140 § 14 (part), 1994; prior code § 21B-8)

The City Council shall establish a schedule of fees to be paid by persons using or handling hazardous materials which is sufficient to cover the costs of the city of administering this chapter from time to time by separate resolution. The schedule shall include a schedule of fees to be assessed for the late filing of any disclosure form.

(Prior code § 21B-9)

When required by the Fire Chief, 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 approved by the Fire Chief.

(Ord. 1140 § 14 (part), 1994; prior code § 21B-10)

A. .....If a user believes that a request from the public for information on the disclosure form or otherwise pursuant to this chapter involves the release of a trade secret, the user shall so notify the Fire Department in writing. As used in this chapter, "trade secret" shall have the meaning given to it by Section 6254.7 of the Government Code and Section 1060 of the Evidence Code.

B. .....Any trade secret information reported to or otherwise obtained by the Fire Department, or any of its employees, where disclosure has been in accordance with subsection A of this section, shall not be disclosed to anyone except:

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

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

C. .....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.

D. .....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 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 purposes of this section. Any physician who has been furnished information or who has obtained information pursuant to subsection (B)(2) 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.

E. .....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 request by certified mail. The Fire Department shall release the information thirty (30) days after the day of mailing the notice, unless, prior to the expiration of thirty (30) days, the user institutes an action in the appropriate court for a declaratory judgment that the information is subject to protection under subsection B of this section and/or an injunction prohibiting disclosure of the information to the general public.

F. .....The provisions of this section shall not permit a user to refuse to disclose information required to be disclosed pursuant to this chapter.

(Ord. 1140 § 14 (part), 1994; prior code § 21B-11)

A. .....The requirements of Assembly Bill 2185 enacted as Chapter 6.95 of the 1985 Statutes, and codified as California Health and Safety Code Section commencing 25500 are adopted by reference as the standards of the City relating to hazardous materials business and area response plans with the following exceptions:

Whenever a conflict exists between AB-2185 and the original hazardous materials inventory requirements of the original ordinance codified in this chapter, the most restrictive requirements shall apply.

B. .....The Fire Department is appointed as the official City administering agency to carry out and enforce the requirements of Assembly Bill 2185.

(Ord. 1140 § 16, 1994; prior code § 21B-12)