San Diego Municipal Code Div. 9 Disclosure of Hazardous Materials

(“Disclosure of Hazardous Materials” added 5–9–1983 by O–15964 N.S.)

The Council hereby finds and declares that:

(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 emission.

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

(c) Basic 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 fire fighters, health officials, health care providers, planners,
elected officials, and residents.

(d) It is the intent of the Council that this division 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 and orderly system for the provision
of such information including appropriate education and training for use of
information.

(e) It is further the intent of the Council that the system of disclosure set forth in
this division shall provide the information essential to fire fighters, health
officials, health care providers, planners, elected officials, 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.
(“Findings and Purpose” added 5–9–1983 by O–15964 N.S.)

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Health regulated businesses shall include establishments which use or handle hazardous materials as defined herein. A separate health permit shall be required for each such establishment. (“Health Permit Required” added 5–9–1983 by O–15964 N.S.)

For the purpose of this division the following definitions shall apply:

(a) “Carcinogen” means a substance or agent which can cause cancer. For
purposes of this division, carcinogens are chemicals for which there is
sufficient evidence of carcinogenicity as specified in guidelines prepared by
the International Agency for Research on Cancer and the National Cancer
Institute and are listed on the list of hazardous substances established by the
Director of Industrial Relations pursuant to Section 6380 of the Labor Code.

(b) “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 Service.

(c) “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.

(d) “Disclosure form” means the written request for information prepared by the
Health Officer pursuant to Section 42.0908.

(e) “EPA Waste Stream Code” means the identification number assigned
pursuant to the regulations of the U.S. Environmental Protection Agency to
specific types of hazardous waste.

(f) “Establishment” shall mean a single business operation conducted on the
same or contiguous parcels of property under the same ownership or
entitlement to use.

(g) “Hazardous material” means any hazardous substance or hazardous waste.

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(h) “Hazardous substance” means any substance or product:

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

(2) Which is listed as a radioactive material set forth in Title 10, Chapter
1, of the Code of Federal Regulations as maintained and update by the
Nuclear Regulatory Commission.

(i) “Hazardous waste” means hazardous or extremely hazardous waste as defined
by Sections 25115 and 25117 of the Health and Safety Code and set forth in
Title 22 of the California Administrative Code.

(j) “Handle” means to generate, treat, store, or dispose of a hazardous waste in any fashion.

(k) “MSDS” means Material Safety Data Sheet prepared pursuant to Section 6390
of the Labor Code.

(l) “Person” means an individual, trust, firm; joint stock company, corporation,
partnership, association, city, county or district.

(m) “Proprietary information” means information regarding compounds or
ingredients used in a process or production which do not qualify as trade
secrets but which provides an industry or business with a competitive
advantage.

(n) “Release” means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing into the
environment.

(o) “Reproductive toxins” means a substance or agent which can affect
reproductive functions causing birth defects, spontaneous abortions, impaired
spermatogenesis, reduced fertility and/or intrauterine growth retardation, and
appears on the list of hazardous substances prepared by the Director of
Industrial Relations pursuant to Section 6380 of the Labor Code.

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(p) “Sensitive hazardous materials” means hazardous materials recognized by the
Health Officer which if deliberately misused would present an imminent
threat to public health and safety.

(q) “SIC Code” means the identification number assigned by the Standard
Industrial Classification Code to specific types of businesses.

(r) “Use” includes the handling, processing, or storage of a hazardous substance.

(s) “User” means any person who uses a hazardous substance or handles a
hazardous waste.
(“Definitions” added 5–9–1983 by O–15964 N.S.)

Toxins

The Health Officer may add materials to, or exempt materials from the materials designated as hazardous materials, carcinogens or reproductive toxins upon authorization by the Board of Supervisors of the County of San Diego. (“Review of Designation as Hazardous Materials, Carcinogens or Reproductive Toxins” added 5–9–1983 by O–15964 N.S.)

The Health Officer may seek advice from the County of San Diego Hazardous Materials Advisory Committee regarding the implementation of the provisions of this division including effective methods of public information and education. (“Hazardous Materials Advisory Committee” added 5–9–1983 by O–15964 N.S.)

(a) Based on SIC Codes and other similar classifications, the Health Officer shall identify establishments which are potential users of hazardous materials.

(b) Every person who owns or operates an establishment that is identified by the
Health Officer as a potential user shall complete, within thirty (30) days of
receipt from the Health Officer, a form requesting the following information:

(1) Name,

(2) Address,

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(3) Type of business, and

(4) Whether the person uses or handles hazardous materials.

(c) Any person who uses or handles a hazardous material must annually submit a
completed disclosure form to the Health Officer by September 1 of each year.

(d) Within thirty (30) days of any:

(1) Major change in the use of new hazardous materials in reportable
quantities,

(2) Change of business address,

(3) Change of business ownership, or

(4) Change of business name, the user shall submit a disclosure form
detailing the new use or handling or other appropriate information.
(“Filing of a Hazardous Substance Disclosure Form” added 5–9–1983 by O–15964
N.S.)

(a) The Health Officer shall maintain files for at least thirty (30) years of all disclosure forms received and provide for a data bank of generic MSDS health and safety information. These files shall be open to the public for inspection and reproduction during normal business hours. The disclosure forms shall be filed by street address.

(b) Any person may request information regarding hazardous materials at an
establishment from the Health Officer. In situations involving potential or
actual exposures, the Health Officer shall within two (2) working days of the
person’s request, examine the records of any establishment made available or
submitted pursuant to Section 42.0908(c) of this division to obtain the
information requested. The Health Officer shall release the information to the
requesting person within five (5) working days of the person’s request
consistent with the requirements of Section 42.0912 of this division. In the
event of a medical emergency, the Health Officer shall take all measures
necessary to obtain the information immediately.

(c) In situations involving non–imminent public health concerns, or requests for
large amounts of information, the Health Officer shall provide the information

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within a reasonable period of time, given the nature and extent of the request.

The Health Officer may collect fees to recover costs for providing information under this subsection.

(“Maintenance of Files” added 5–9–1983 by O–15964 N.S.)

(a) The disclosure form shall be prepared by the Health Officer with the assistance, if necessary, of the Fire Department, the Development Services Department, and other interested parties. The disclosure form shall include requests for the following:

(1) A listing of the chemical name or any common name of each
carcinogen or reproductive toxin used by the person completing the
disclosure form.

(2) A listing of the chemical name, or common names of every hazardous
substance used by the person completing the disclosure form.

(3) A listing of every hazardous waste handled by the person completing
the disclosure form.

(4) The maximum amount of each and every hazardous material disclosed
in subsections (1), (2) and (3) which is stored at any one time by the
user over the course of the year. Quantities are to be reported within
specified ranges.

(5) An indication that the user possesses appropriate discharge permits for
any intentional releases of the hazardous materials disclosed in
subsections (1), (2) and (3) into the air, water, sewers, or land to
enable the community to understand the sources, quantity and content
of hazardous material releases.

(b) The Health Officer may accept forms required by state or federal law in lieu
of portions of the disclosure form specified in this section provided that such
state or federal forms contain equivalent information.

(c) Any person who is required to maintain and make available an MSDS
pursuant to California Administrative Code, Title 8, Section 5194 shall make
such document available to the Health Officer upon request within two (2)
working days.

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(d) Upon request, all users must provide information beyond that specifically
requested in the disclosure form to the Health Officer, if the Health Officer
determines that such information is necessary to protect health and safety or
the environment. Such additional information shall be subject to the trade
secret provisions of Section 42.0912.
(Amended 7–25–1994 by O–18088 N.S.)

(a) Each establishment shall provide the Health Officer with a list of names, addresses, and phone numbers (office and home) of all persons qualified and authorized to act as an emergency contact.

(b) 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.

(c) All emergency response information submitted or made available to the
Health Officer pursuant to this section, shall be kept confidential and shall not
be disclosed to the public unless required by compelling circumstances
constituting an imminent danger to public health. The Council hereby finds
and declares that this information, were it accessible to the general public,
may be potentially used to sabotage, destroy, or otherwise damage industrial
facilities. The Council further declares pursuant to Government Code Section
6255, that the public interest served by not making such information public,
clearly outweighs the public interest served by disclosure of such information.
(“Emergency Response Information” added 5–9–1983 by O–15964 N.S.)

(a) A substance designated as a hazardous substance by this division solely by its presence on the Nuclear Regulatory Commission list of radioactive materials, shall be exempt from the requirement that these materials be listed on the disclosure form.

(b) Hazardous substances contained only in consumer products packaged for
distribution to, and used by, the general public shall be exempt from
disclosure under this division.

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(c) Any person using or handling a hazardous material in amounts not exceeding
500 pounds or 55 gallons, whichever is the lesser, in any month in one
location, shall be exempted from the requirement of disclosure of that use or
handling unless the Health Officer upon approval by the Council has provided
notice that he or she has changed the weight or volume limits of this
exemption for a specific class of acutely or extremely hazardous materials in
response to public health concerns. This exemption shall not apply to
laboratories involved in chemical synthesis and production. Known
carcinogens or reproductive toxins of any quantity shall not be exempted
pursuant to this subsection unless used or intended to be used for medical or
therapeutic purposes.
(“Exemptions to Disclosure” added 5–9–1983 by O–15964 N.S.)

(a) Any person who, upon receiving written notice from the Health Officer, fails to comply with the provisions of Section 42.0906 is guilty of a misdemeanor. Each day on which a failure to file occurs shall be considered a separate violation.

(b) Such person may also be civilly liable for injuries to persons or property
caused by the failure to comply with Section 42.0906.
(“Penalty for Violations — Misdemeanor” added 5–9–1983 by O–15964 N.S.)

(a) If a user believes that a request for information made by either the disclosure form or pursuant to subdivision (c) and (d) of Section 42.0908 involves the release of a trade secret, the user shall stamp, mark or designate the

information as a trade secret and shall submit the information requested to the
Health Officer.

(b) The Health Officer shall protect from disclosure any and all trade secrets
coming into his or her possession, as defined in subsection (d) of Section
6254.7 of the Government Code and Section 1060 of the Evidence Code,
when requested in writing by the user.

(c) Any information reported to or otherwise obtained by the Health Officer, or
any of his representatives or employees, which is exempt from disclosure
pursuant to subdivision (b), shall not be disclosed to anyone except an officer
or employee of the City, the County, the State of California, or the United

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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, the County or medical service providers and their employees, if in the
opinion of the Health Officer such disclosure is necessary for the satisfactory
performance of their 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) 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 official or in accordance
with the laws of the United States.

(f) (1) The Health Officer upon his or her own initiative or upon receipt of a
request for the release of information designated as a trade secret by a
user, shall determine whether any or all of the information so
submitted is properly designated as a trade secret.

(2) If the Health Officer determines that the information is not a trade
secret, the Health Officer shall notify the user by certified mail.

(3) The user shall have fifteen (15) days after receipt of notification to provide the Health Officer with a complete justification and statement of the grounds on which the trade secret privilege is claimed. This justification and statement shall be submitted by certified mail.

(4) The Health Officer shall determine whether such information is
protected as a trade secret within fifteen (15) days after receipt of the
justification and statement or, if no justification and statement is
submitted, within thirty (30) days of the original notice. The Health
Officer shall notify the user and any party who has requested the
information of that determination. The final notice shall also specify a
date, not sooner than fifteen (15) days after the date of mailing of the
final notice, when the information shall be made available to the
public.

(5) Prior to the date specified in the final notice, a user may institute an
action in an appropriate superior court for a declaratory judgment as to
whether such information is subject to protection under subdivision (a)

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and the information shall not be disclosed pending final judgment in
such action.

(g) The provisions of this section shall not permit a user to refuse to disclose
information required pursuant to this division to the Health Officer.

(h) A user may designate, when appropriate, information made available to the
Health Officer by either the disclosure form or pursuant to subdivisions (c)
and (d) of Section 42.0908 as proprietary information or as information
regarding sensitive hazardous materials. The Health Officer will disclose this
information only to health care providers or other individuals, including but
not limited to neighborhood residents, after the Health Officer determines that
this information is needed for legitimate health concerns.

(i) In situations involving extremely sensitive materials, such as national defense
work, which are normally protected by elaborate security systems, the Health
Officer may issue a variance to omit the listing of certain hazardous
substances from the disclosure form to protect such information from
inadvertent disclosure, provided that the user satisfies the following
requirements:

(1) The user must demonstrate to the satisfaction of the Health Officer
that there is the potential for misuse if the hazardous substances or
information regarding them are obtained by the public.

(2) The user must indicate on the appropriate place on the disclosure form
that a hazardous substance is being omitted from the form.

(3) The user must provide the following information from the MSDS for
each hazardous substance omitted: fire and explosive hazard data,
health hazard data, reactivity data, spill or leak procedures, special
protection information, and special precautions.

(4) The user must agree to an inspection of all facilities by the Health
Officer to insure that all hazardous materials are being handled in a
safe manner.

(5) The user must make provisions to allow for immediate independent
24–hour access to the hazardous materials records of the establishment
by the Health Officer.

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(6) The user must establish to the Health Officer’s satisfaction that an
emergency coordinator will be available on a 24–hour basis to supply
information on hazardous materials at the establishment to the Health
Officer.

(7) The user must keep at least one listing of hazardous substances
omitted from the disclosure form at a separate location from the
establishment.

(8) The user may be required to pay a higher permit fee to cover the extra costs of additional inspections and administrative procedures required by the above requirements.

(j) 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 material the disclosure of which is prohibited by this section,
and who knowing that disclosure of the material is prohibited, knowingly and
willfully discloses the material in any manner to any person known not to be
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.

(k) The Council finds and declares, pursuant to the Government Code Section
6255, that the public interest served by not making information regarding
trade secrets, proprietary information, and sensitive hazardous materials
public clearly outweighs the public interest served by disclosure of such
information to members of the general public, except as provided by this
section.
(“Confidentiality” added 5–9–1983 by O–15964 N.S.)

Every person applying for a permit under the provisions of this division shall at the time of making application for such permit pay a fee, the exact amount which shall be determined by the County of San Diego and kept on record by the County Department of Health Services and on file in the City Clerk’s Composite Rate Book. The schedule of fees shall include provisions for collection of annual renewal fees and collection of delinquency fees. (“Fees” added 5–9–1983 by O–15964 N.S.)

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The Health Officer is authorized and empowered to enforce the provisions of this division and to inspect such activities as are regulated in this division for the purpose of determining compliance with this division. No person shall obstruct or interfere with the Health Officer in his performance of these duties. The Health Officer shall be empowered to make such arrests and issue citations pursuant to Penal Code Sections 836.5 and 853.7 for violations of this division. (“Enforcement Officer — Authority — Inspection” added 5–9–1983 by O–15964 N.S.)

If any section, subsection, sentence, clause, or phrase of this division 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 division. The Council hereby declares that it would have passed this division and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of this division would be subsequently declared invalid or unconstitutional. (“Severability” added 5–9–1983 by O–15964 N.S.)

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Article 2: Health Regulated Businesses and Activities