San Leandro Municipal Code Art. 1 General

(Legislative History: Ordinance No. 2001-07, 3/19/01 (Sections 3-17-100—3-17-150); Ordinance No. 2011-005, 4/4/11 (Section 3-17-125))

This Chapter shall be known as the "City of San Leandro Hazardous Materials Ordinance" and may be so cited.

The City Council (Council) finds and declares:

(a) Hazardous materials and hazardous wastes present in the community may pose acute and chronic health hazards to individuals who live, visit and work in the City of San Leandro (City) and who are exposed to such substances as a result of fire, spills, industrial accidents, or other releases or emissions.

(b) It is the intent of the Council to recognize the community's right and need for basic information on the use, handling, storage and disposal of hazardous materials and wastes in San Leandro and to establish an orderly system for the provision of such information.

(c) It is further the intent of the Council that the system of disclosure set forth herein shall provide the information essential to firefighters, health officials, planners, elected officials, workers and their representatives, 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.

(d) Businesses that safely handle hazardous materials and wastes are beneficial to the economic life of the City and community. It is the intent of the Council to provide program provisions that facilitate the continued and growing presence of safe businesses.

(e) It is further the intent of the Council to conform the provisions of this chapter to California laws regulating the storage and handling of hazardous materials and wastes, including: Chapter 6.5 (hazardous waste); Chapters 6.7 and 6.75 (underground storage tanks); Chapter 6.95, Article 1 (hazardous materials); Chapter 6.95, Article 2 (Accidental Release Prevention Program) of Division 20 of the California Health and Safety Code; and Division 7, Chapter 10, Article 4 of the California Water Code (water monitoring wells). The City hereby assumes responsibility and exclusive jurisdiction of these laws, to the extent authorized by law. These State provisions are incorporated into this chapter by reference, as are the State regulations adopted in furtherance of these statutory provisions, except as modified within this chapter. This chapter is also intended to be used in conjunction with the most recent version of the Uniform Fire and Building Code adopted by the City which pertains to hazardous materials management.

(a) The City hereby assumes the authority and responsibility for the implementation of CUPA programs (Chapter 6.11) of the California Health and Safety Code (Health and Safety Code Section 25500 et seq.), as to the handling of hazardous waste/materials in the City. Pursuant to Section 25404 of Chapter 6.11, the City shall have exclusive jurisdiction within its boundaries for the purposes of implementing CUPA programs. Notwithstanding any other provision of this Chapter, the Alameda County District Attorney shall continue to be responsible for any civil and criminal prosecution of CUPA violations, unless otherwise agreed to by the City and the County of Alameda in writing.

(b) In accordance with Section 25404.2 of Chapter 6.11, the City of San Leandro Environmental Services Division hereby is designated as the administering agency responsible for the administration and enforcement of the provisions of Chapter 6.11 and this Article. The City Manager hereby delegates to the City of San Leandro Environmental Services Division Manager ("Administrator") authority to take any and all actions that may be necessary for the City of San Leandro Environmental Services Division to administer and enforce Chapter 6.11 and this Article. All City employees designated by the Administrator are authorized to make such inspections and take any actions on behalf of the Administrator as may be required to administer and enforce.

The following chapters of the California Health and Safety Code, with their implementing regulations and agency resolutions, are hereby incorporated into this Chapter by reference: Chapter 6.5 (hazardous waste); Chapters 6.7 and 6.75 (underground storage tanks); Chapter 6.95 Article 1 (hazardous materials); Chapter 6.95 (Hazardous Materials Release Plans and Inventory), Article 2 (Accidental Release Prevention Program); Chapter 6.5 (Hazardous Waste Control) Unified Hazardous Waste and Hazardous Materials Management Regulatory Program of Division 20 of the California Health and Safety Code; and Division 7, Chapter 10, Article 4 of the California Water Code. This Chapter contains additional stricter local requirements in accordance with Sections 25299.2 and 25500 of the California Health and Safety Code. This Chapter also incorporates by reference the Uniform Fire and Building Codes that pertain to hazardous materials management as they may be adopted from time to time by the City of San Leandro. The provision of this chapter shall conform to these incorporated provisions as they may be amended, unless explicitly modified within this Chapter.

In addition to the definitions incorporated by reference from the laws and regulations referenced in Section 3-17-115, the following definitions shall apply to this chapter:

"Administrator"

means the hazardous materials program Administrator, who shall be the Manager of the City of San Leandro Environmental Services Division.

"Closure"

of a storage unit or facility permitted under this chapter to handle hazardous materials or wastes means the termination of handling those hazardous materials or wastes, and includes preparation and implementation of a closure plan designed to meet the following objectives:

(1)

Eliminate the need for further maintenance or monitoring of the closed unit or facility;

(2)

Ensure that there is no residual threat to public health or safety or the environment from possible releases of hazardous materials or wastes from the unit or facility; and

(3)

Ensure that the removal, disposal, neutralization or reuse of the hazardous materials or wastes that were handled in or released from the unit or facility is accomplished in an appropriate manner.

"Handler"

means a business that handles hazardous materials and/or generates wastes, and is subject to the provisions of this Chapter.

"Hazardous Material or Waste"

means any of the following:

(1)

Any material classified as a hazardous material or hazardous substance by any of the laws or regulations incorporated by reference into this Chapter by Section 3-17-115;

(2)

Any waste classified as a hazardous waste by any of the laws or regulations incorporated by reference into this Chapter by Section 3-17-115; or

(3)

Any other material or waste designated as hazardous for purposes of this Chapter by the Administrator, upon a finding by the Administrator that the material or waste, because of its quantity, concentration, 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) Subject to the subsections of this section relating to trade secrets, all disclosure forms and permits are public records and will be publicly available during normal business hours in the offices of the Administrator in accordance with the following procedures:

(1) Written application for the information shall be submitted to the Administrator, on a form provided by the City which shall include name, address, telephone number, and verification of the applicant's identity. The written application shall also identify the specific file(s) requested for disclosure;

(2) The information shall be provided within 10 working days after receipt of the application, with the exception, that requests for information that has been designated as a trade secret by the handler shall be subject to the subsections of this section regarding trade secrets.

(b) If a handler believes that information required to be disclosed on the disclosure form, a permit application, or under the terms of Section 3-17-135 involves the trade secret, the handler shall notify the Administrator in writing of the information the handler believes involves the release of a trade secret. As used in this Chapter, "trade secret" shall have the meaning given by Section 25290 (for underground storage tank systems) and 25511 of the Health and Safety Code, Section 6254.7 of the Government Code and Section 1060 of the Evidence Code.

(c) Upon receipt of a request for the release of information to the public which includes information identified by the handler to the Administrator as a trade secret under subsection (b) of this section, the Administrator shall notify the handler in writing of the request by certified mail, return receipt requested. The Administrator shall release the information to the public, but not earlier than 30 days after the mailing of such notice, unless prior to the expiration of said 30 days, the handler 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 obtains an injunction prohibiting disclosure. The handler and the member(s) of the public requesting disclosure shall be considered the real parties in interest in any such action, and the City of San Leandro, if named, will be a disinterested party.

(d) Any information reported to or otherwise obtained by the Administrator, or representative or employee, which is exempt from disclosure following subsection (c) of this section, shall not be disclosed to anyone except:

(1) Any officer or employee of the City, County of Alameda, State of California, or United States of America, in connection with official duties of such officer or employee under any law for the protection of health. For the purposes of this section, fire and emergency response personnel and health personnel operating within the jurisdiction of the City, and any contractor who is furnished information that is protected from disclosure by this section, shall be considered employees of the City;

(2) Any physician or registered nurse who has determined that such information is necessary to the medical treatment of a patient.

(e) Information certified by appropriate officials of the United States Government as necessarily kept secret for national security purposes shall be accorded the full protection against disclosure as specified by such officials in accordance with the laws of the United States.

(f) The provisions of this section shall not permit a handler of hazardous materials to refuse to disclose to the Administrator information required by this Chapter.

The City Council shall establish by resolution, from time to time, a schedule of fees for each class of permits issued under this Chapter, for additional late fees, and for additional services provided by the City to administer and enforce this Chapter including but not limited to annual registration fees pursuant to Health & Safety Code Section 25404. These fees shall be sufficient to allow the City to recover its costs of administering this Chapter. The fees will take effect upon adoption by the City Council.

(a) In order to carry out the purposes of this Chapter, the Administrator or designee has the authority to inspect any place where hazardous materials or wastes are handled, or any place where the Administrator has reason to believe that an unauthorized release of a hazardous material has occurred, is occurring, or may occur. This authority extends to any property within 2,000 feet of property on which hazardous materials or wastes are handled. The authority conferred by this section includes the authority to conduct any monitoring or testing of any above-ground or underground storage tank system. This right of entry shall be exercised only at reasonable hours unless otherwise required by an emergency, and entry shall be made to any establishment or property only with consent of the owner or tenant thereof, or with proper inspection warrant or other remedy provided by law to secure entry.

(b) All inspections under this Chapter shall be at the discretion of the City of San Leandro Environmental Services Division (CSL/ESD) and nothing in this Chapter shall be construed as requiring the CSL/ESD to conduct any such inspection nor shall any actual inspection made imply a duty to conduct any other inspection. Furthermore, nothing in this chapter shall be construed to hold the CSL/ESD or any officer, employee or representative of the CSL/ESD responsible for any damage to persons or property by reason of making an inadequate or negligent inspection, or by reason of any failure to make an inspection or reinspection.

This Chapter shall be enforced pursuant to the provisions of Chapter 3-18 of the San Leandro Municipal Code.

(a) The requirements set forth in this amended Chapter are declarative of existing law and the responsibilities of handlers of hazardous materials and waste within the City as of the effective date of this amended Chapter. Handlers filing disclosure forms or permit applications under this Chapter shall use revised forms at the time of their first update of the relevant document(s) after the effective date of this revised Chapter.

(b) The City, under the terms of Health and Safety Code Section 25502, hereby assumes responsibility and exclusive jurisdiction within the City for implementation of Health and Safety Code Section 25502 et seq., regulating the inventory and preparation of response plans for hazardous materials by business, and regulating the Accidental Release Program.

(c) The city, under the terms of Health and Safety Code Section 25583, hereby assumes responsibility and exclusive jurisdiction within the City for implementation of Health and Safety Code Sections 25280 et seq., regulating the underground storage of hazardous substances.

(a) If any provision of this Chapter or any application thereof is held invalid, such invalidity shall not affect any other provision of this Chapter which can be given effect without the invalid provision or application, and to this end the provisions of this Chapter are declared to be severable.

(b) When conflicts arise between the contents of this Chapter and any other provisions of the San Leandro Municipal Code, the more stringent provisions shall prevail, provided said more stringent provisions are not in conflict with the laws set forth in Section 3-17-115.

(c) The disclosure of hazardous materials information following the provisions of this chapter shall not in any way affect any other liability or responsibility of a handler with regard to safeguarding the health and safety of any employee, or any other person or the environment.

(d) The degree of protection required by this Chapter is considered reasonable for regulatory purposes. The standards set forth herein are minimal standards and this Chapter does not imply that compliance will ensure that there will be no improper release of hazardous materials or wastes. 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 hazardous materials or wastes within the City are advised to determine, to their own satisfaction, the level of additional protection necessary or desirable to ensure that there is no improper release of hazardous materials or wastes.

(e) Subject to the limitations of due process, notwithstanding any other provisions of this Code whenever the word "shall" is used in establishing a responsibility or duty of the City, its elected or appointed officer, employees, or agents, it is the intent of the City that such word established a discretionary responsibility or duty requiring the exercise of judgments and discretion.