Wildomar Municipal Code Ch. 8.56 Disclosure of Hazardous Materials and Formulation of Business Emergency…

A. The purpose of this chapter is to implement the Hazardous Materials Release Response Plans and Inventory Law, Chapter 6.95 of the California Health and Safety Code (CH&SC), to establish a system for permitting businesses that handle hazardous materials, to enforce minimum standards respecting such materials, and to designate the health services agency, Department of Environmental Health (DEH), as the administering agency responsible for administering and enforcing Chapter 6.95 CH&SC.

B. The DEH may require compliance with the applicable articles of the most currently adopted California Fire Code.

C. Pursuant to CH&SC Section 25500, paragraph two, it is the intent of the City Council to impose additional and more stringent requirements on businesses that handle hazardous materials than those imposed by Chapter 6.95 CH&SC.

(Ord. 18 § 2, 2008, RCC § 8.64.010)

The terms used in this chapter shall be as defined in the Hazardous Materials Release Response Plans and Inventory Law Chapter 6.95 CH&SC as amended, and the Hazardous Materials Release Response Plans and Inventory Regulations as specified in Title 19 of the California Code of Regulations (CCR), as amended, except for the following:

"Business"

means an employer, person, self-employed individual, trust, firm, joint stock company, limited liability company corporation, partnership, or association. For purposes of this chapter, "business" includes a business organized for profit and a nonprofit business. For purposes of this chapter, households that generate, store, handle, dispose, treat or recycle hazardous materials of the kind and in the amounts customary for ordinary households do not constitute a business.

"Business emergency plan"

means a separate plan for each business location that meets the requirements of Chapter 6.95 CH&SC.

"CUPA"

means the Certified Unified Program Agency.

"Cumulative quantity"

means the total amount of hazardous materials categorized into one Department of Transportation, Hazard Class number, as described in 49 Code of Federal Regulations (CFR).

"Department of Environmental Health (DEH)"

means the County Health Services Agency, Department of Environmental Health.

"Director"

means the Director of the Department of Environmental Health or his/her designee.

"Handle"

means to use, generate, process, produce, package, re-package, treat, store, emit, discharge, or dispose of a hazardous material in any fashion.

"Permittee"

means a business or person that holds a permit issued pursuant to this chapter.

"Remote and unstaffed"

means a business that is located in a remote area, not adjacent to a regularly occupied business and is not staffed on a regular basis and meets the definition in Chapter 6.95 CH&SC.

"Unified program consolidated form (UPCF)"

means the form designed for use by businesses providing a standardized format. This document consolidates information regulated businesses are required to provide for different program elements to the CUPA.

(Ord. 18 § 2, 2008, RCC § 8.64.020)

A. Manner of Handling. No person or business shall cause or allow the handling of hazardous materials:

1. In a manner that violates any provision of this chapter; or

2. In a manner that causes an unauthorized release of hazardous materials; or

3. In a manner that poses a significant risk of unauthorized release of hazardous materials.

B. Correction of Unsafe Conditions. Whenever the owner or an employee of a business discovers or becomes aware of any condition that is likely to cause injury to the public, employees of the business, or damage to either property or the environment, the owner or operator of the business shall immediately correct that condition. If the condition is a hazard likely to immediately cause serious injury or death to the public, employees, or is a hazard likely to immediately cause substantial damage to property or the environment, the business owner or operator shall, until the unsafe condition has been corrected, immediately cease the operation of the unsafe portion of the business.

C. Storage. The owner or operator of a business where hazardous materials are stored shall accomplish all of the following:

1. Physical Separation of Materials. The separation or protection of a hazardous material from any other material or factor that may cause or contribute to a fire, explosion, production of a flammable, toxic, or poisonous gas, or the deterioration of any primary or secondary containment is required.

2. Physical Separation from Buildings. Hazardous material storage areas shall be separated by distance or physical barriers from residences and other buildings when the quantities of materials or their hazardous characteristics constitute a fire or health hazard.

3. Restricted Access. Hazardous materials handling areas shall be secured against unauthorized entry.

D. Warning Signs. Hazard identification signs specified and in conformity with the National Fire Protection Association (NFPA) Standard 704 shall be placed in locations where hazardous materials are stored or handled in quantities requiring a permit and at all entrances to the business. Aboveground storage tanks containing a hazardous material shall be posted with the appropriate NFPA 704 sign on a visible side and shall be plainly visible and readable.

E. Posting and Labeling. The following shall be posted with the appropriate signage: entrances and exits; emergency contacts; hazardous material(s) storage area(s); emergency equipment; and pesticide storage area. Containers holding hazardous materials shall be labeled as to the contents. Other information may be required on the label by the DEH as stipulated in the current business emergency plan instructions.

F. Failure to Comply. Failure or refusal of the owner or operator of any business to comply with the requirements for handling hazardous materials, in this section, shall constitute a violation of this chapter.

(Ord. 18 § 2, 2008, RCC § 8.64.030)

A. Permit. Except as provided in Chapter 6.95 CH&SC, no person shall operate or maintain a business where hazardous materials, or a mixture containing hazardous materials, are handled in a quantity that, at any one time, is equal to or greater than, an amount specified in Section 8.56.070 without a valid permit issued by DEH. The owner or operator of a business shall apply for and obtain a permit for handling hazardous materials from the DEH. For a previously nonpermitted business, a permit fee and completed business emergency plan are due at the time a hazardous material, or a mixture containing a hazardous material, is first handled at a business in a quantity that is equal to, or greater than, an amount specified in Section 8.56.070. A permit may be issued at any time during the year.

B. Requirements. For a permit to handle hazardous materials in quantities specified in Section 8.56.070, a completed business emergency plan shall be submitted to the DEH. The business emergency plan shall be submitted on the forms provided by the DEH with the appropriate fee as specified in Chapter 3.44 and referenced in Section 8.56.080. All permits shall expire annually on the one-year anniversary of the date of program qualification. A new permit shall be applied for on or before the date of expiration.

C. Contents of Business Emergency Plan. The completed business emergency plan shall include all the information required for business plans pursuant to Chapter 6.95 CH&SC and the UPCF. The major elements of the required information include:

1. Business activities information;

2. Statement of exemption;

3. Business owner/operator identification;

4. Hazardous materials inventory;

5. Site map and storage map;

6. Emergency procedures;

7. Employee training plan;

8. Emergency notification;

9. Additional information.

The DEH may require such additional information as it deems necessary to meet the intent of this chapter and state law in protecting the public health, safety, or the environment.

D. Permit Issuance. The DEH shall issue a permit to handle hazardous materials when the following requirements have been met:

1. The business emergency plan has been completed, filed, and reviewed by the DEH and found to be satisfactory and complete.

2. The applicable fees, as specified in Chapter 3.44 and referenced in Section 8.56.080, have been received.

E. Nontransferable Permit. A permit to handle a hazardous material is not transferable.

F. Maintaining Permit and Business Emergency Plan on Premises. A permit issued pursuant to this chapter shall be posted at the permitted place of business. A copy of the approved business emergency plan shall be maintained at the place of business.

G. Failure to Comply.

1. Failure or refusal of the owner or operator of any business to submit to the DEH, the completed business emergency plan for a permit to handle hazardous materials, as specified in this section, shall constitute a violation of this chapter.

2. Failure or refusal of the owner or operator of any business to submit to the DEH the appropriate fees, as specified in Chapter 3.44 and referenced in Section 8.56.080, shall constitute a violation of this chapter.

(Ord. 18 § 2, 2008, RCC § 8.64.040)

A. Changes to the Business Emergency Plan. An amended or revised copy of the business emergency plan shall be sent to the DEH within 30 calendar days when any of the following events occur:

1. Change of ownership;

2. Change of mailing address or phone number;

3. Change in physical location of the business;

4. Change of emergency contact person or emergency contact phone number;

5. A 100% or more increase in the quantity of a previously disclosed hazardous material;

6. Any handling of a previously undisclosed hazardous material subject to the inventory requirements of this chapter.

B. Failure to Comply. Failure or refusal of the owner or operator of any business to comply with the amendment and notification requirements of this section shall constitute a violation of this chapter.

(Ord. 18 § 2, 2008, RCC § 8.64.050)

A. Hazardous Materials Inventory. A business shall submit to the DEH annually its hazardous materials inventory on the inventory reporting form, or submit a certification statement reporting current status as it may apply to changes in inventory, if any, within the previous year. Changes to the inventory shall be submitted on forms provided by the DEH.

B. Review and Update to the Business Emergency Plan. At least once every three years, the business shall certify to the DEH that a review of the business emergency plan was made and that any necessary changes have been made to the plan. A copy of these changes shall be submitted to the DEH as part of this certification.

C. Failure to Comply. Failure or refusal of the owner or operator of any business to comply with the reporting requirements of this section shall constitute a violation of this chapter.

(Ord. 18 § 2, 2008, RCC § 8.64.060)

A. Categories of Hazardous Materials. For purposes of permitting businesses pursuant to this chapter, categories of hazardous materials shall be as follows:

1. Category A.

a. Motor vehicle fuels stored in an underground tank system;

b. Lubricants and coolants stored above or below ground;

c. Hydraulic equipment fluids;

d. Motor vehicle parts cleaning fluids;

e. Used motor oil stored above or below ground;

f. Motor vehicle lead acid batteries;

g. Compressed gases used in welding;

h. Refrigerated bulk carbon dioxide gas (asphyxiation and pressure hazard) when used in carbonation of beverages at a food serving business;

i. Perchloroethylene or tetrachloroethylene stored above ground when used as a solvent for dry cleaning garments.

2. Category B. All hazardous materials defined by Chapter 6.95 CH&SC except the following:

a. Those listed in subsection (A)(1) of this section;

b. Those listed in subsection (A)(3) of this section;

c. Those exempt by Chapter 6.95 CH≻

d. Those exempt by this chapter.

3. Category C.

a. Extremely hazardous waste as defined in Title 22 CCR;

b. Regulated substance as defined in 40 CFR or Chapter 6.95 of the CH≻

c. Extremely hazardous substance as defined in 40 CFR;

d. Acutely hazardous material as defined in 40 CFR;

e. Any hazardous substance or mixture which the United States Environmental Protection Agency has taken action upon pursuant to Section 2606 of Title 15 of the United States Code.

B. Classification of Handlers. A hazardous materials handler shall be classified for fee assessment purposes according to the criteria of this section. A handler that is eligible for assessment under more than one hazard classification level shall be assessed at the level indicating the greatest hazard potential and based on the types and quantities of hazardous materials handled. The hazard classification levels shall be as follows:

1. Agricultural Handler. Any business while operating a farm solely for purposes of cultivating the soil or raising or harvesting any agricultural or horticultural commodity, that handles a hazardous material, or a mixture containing a hazardous material, which has a cumulative quantity at any one time during the calendar year equal to or greater than a total weight of 500 pounds, or a total volume of 55 gallons, or 200 cubic feet at standard temperature and pressure for compressed gas.

2. Special Handler. Any business, handling only those materials listed in subsection (A)(1) of this section, which has a cumulative quantity equal to or greater than 55 gallons, 500 pounds or no more than 1,000 cubic feet, at standard temperature and pressure including compressed welding gases such as oxygen, acetylene, argon, etc., when those gases are used as part of a motor vehicle maintenance operation; any business handling motor vehicle fuels listed in subsection (A)(1) of this section in underground storage tanks regulated by Chapter 8.112; any business handling automotive type lead acid batteries in quantities less than or equal to 1,000 pounds; any business handling one or more individual cylinders any one of which contains greater than 200 pounds of refrigerated bulk carbon dioxide gas used in the carbonation of beverages at a food serving business; and/or any business handling perchloroethylene or tetrachloroethylene used as a solvent in the dry cleaning process under 110 gallons total quantity on-site stored above ground.

3. Level I Handler. Any business handling materials listed in subsection (A)(2) of this section that has a cumulative quantity equal to or greater than 55 gallons but less than 550 gallons, or equal to or greater than 500 pounds but less than 5,000 pounds, or equal to or greater than 200 cubic feet of gas but less than 2,000 cubic feet of gas at standard temperature and pressure. Also, any business handling materials listed in subsection (A)(3) of this section that has a cumulative quantity less than or equal to five gallons, or less than or equal to 50 pounds, or less than or equal to 20 cubic feet of gas at standard temperature and pressure.

4. Level II Handler. Any business handling materials listed in subsection (A)(2) of this section that has a cumulative quantity equal to or greater than 550 gallons but less than 5,500 gallons, or equal to or greater than 5,000 pounds but less than 50,000 pounds or equal to or greater than 2,000 cubic feet of gas but less than 20,000 cubic feet of gas at standard temperature and pressure. Also, any business handling materials listed in subsection (A)(3) of this section which has a cumulative quantity greater than five gallons but less than or equal to 55 gallons, or greater than 50 pounds but less than or equal to 500 pounds, or greater than 120 cubic feet of gas but less than or equal to 200 cubic feet of gas at standard temperature.

5. Level III Handler. Any business handling materials listed in subsection (A)(2) of this section that has a cumulative quantity equal to or greater than 5,500 gallons, equal to or greater than 50,000 pounds, or equal to or greater than 20,000 cubic feet of gas at standard temperature and pressure. Also any business handling materials listed in subsection (A)(3) of this section which has a cumulative quantity greater than 55 gallons, or greater than 500 pounds, or greater than 200 cubic feet of gas at standard temperature and pressure.

(Ord. 18 § 2, 2008, RCC § 8.64.070)

The fee schedule for permits required pursuant to Section 8.56.040 shall be as established in Chapter 3.44.

A. Late Fees. Businesses that are delinquent in filing a business emergency plan, paying the permit fee or both, shall be subject to late fees as established under Chapter 3.44.

B. Other Penalties Not Precluded. The imposition of, or payment of, a penalty imposed by Chapter 3.44 shall not preclude the imposition of any other penalty prescribed by this chapter or state law or the prosecution of any violation of this chapter or state law.

(Ord. 18 § 2, 2008, RCC § 8.64.080)

A. California Accidental Release Prevention Program (CalARP) Risk Management Plan. A business that the DEH determines represents a significant likelihood of risk, pursuant to Chapter 6.95 CH&SC and/or Title 19 CCR and/or Section 112(r) of the Clean Air Act and/or 40 CFR shall prepare a Risk Management Plan (RMP) in accordance with the requirements found therein.

B. Review Fees. The fee schedule for the DEH review of a RMP for completeness shall be the fee as established under Chapter 3.44.

C. Failure to Comply. Failure or refusal of the owner or operator of any business to submit to the DEH within the time specified in Chapter 6.95 CH&SC or by the DEH, the completed RMP, shall constitute a violation of this chapter.

(Ord. 18 § 2, 2008, RCC § 8.64.090)

A. Records. All records required by this chapter shall be maintained by the business for a period of not less than three years following the expiration of the permit. Such records shall be made available to the DEH during normal working hours.

B. Failure to Comply. Failure or refusal of the owner or operator of any business to maintain records as required by this section shall constitute a violation of this chapter.

(Ord. 18 § 2, 2008, RCC § 8.64.100)

Notwithstanding any other provisions of this chapter, a hazardous materials handler regulated by any state or federal agency will be exempt from any conflicting provision of this chapter. Whenever any provision of this chapter conflicts with a provision in the California Fire Code as adopted by the City, the stricter provision shall prevail.

(Ord. 18 § 2, 2008, RCC § 8.64.110)

A. Cause. A permit issued or applied for pursuant to this chapter may be denied, suspended or revoked for cause. Cause shall be any violation of this chapter or any violation of any of the provisions of the Hazardous Materials Release Response Plans and Inventory Law as specified in Chapter 6.95 CH&SC or any provision of the Hazardous Materials Release Response Plans and Inventory Regulations as specified in Title 19 of CCR as such provisions may be amended.

B. Other Penalties Not Precluded. The suspension, denial, or revocation of a permit issued pursuant to this chapter, shall not preclude the imposition of any other penalty prescribed by this chapter or the prosecution of any violation of this chapter or state law.

C. Cessation of Hazardous Materials Activities Required. Operation of a business where hazardous materials are handled after the suspension and prior to reinstatement of, denial of, or after the revocation of a permit issued pursuant to this chapter shall constitute a violation of this chapter.

D. Basis for Reinstatement of Permit. A permit that has been suspended shall not be reinstated unless and until the DEH determines in writing that the act, default, omission or condition which was the ground for the suspension, has been remedied.

(Ord. 18 § 2, 2008, RCC § 8.64.120)

A. Notice Required. In the event the DEH determines that an application for a permit pursuant to this chapter should be denied or that a permit issued pursuant to this chapter should be revoked or suspended, the DEH shall prepare a written notice of such proposed denial, suspension or revocation, setting forth therein a brief statement of the facts and applicable statute, regulation or provisions of this chapter which have been violated.

B. Service of Notice. A notice of proposed denial, suspension or revocation shall be served personally on the applicant or holder of the permit, or alternatively, may be sent by certified mail, postage prepaid, return receipt requested, to the address as shown on the application or permit.

C. Right of Hearing. Any person whose application for a permit pursuant to this chapter is denied or whose permit issued pursuant to this chapter is proposed to be suspended or revoked shall have the right to appeal such denial, proposed suspension, or revocation by filing with the DEH within 10 days after receipt of notice of such denial, suspension or revocation, a written notice of appeal setting forth the reasons the appellant believes such denial, proposed suspension or revocation is to be improper.

D. Scheduling of Hearing. Upon receipt of such notice of appeal, the DEH shall schedule a hearing of said appeal before the County Hazardous Materials and Waste Review Panel (Panel) and shall give notice, in writing, to the appellant, of the date, time and place of such hearing by personally delivering such notice on the appellant, or, alternatively, by sending such notice to the appellant by certified mail, postage prepaid, return receipt requested, to the address as shown on the application or permit. A date for the hearing shall be established at a time not later than 30 days from the date the DEH receives the notice of appeal, and written notice thereof by the DEH to the appellant shall be given or mailed not later than 10 days prior to the date of the hearing.

E. Waiver of Hearing. When a business fails to file with the DEH a written notice of appeal within 10 days of receipt of notice of such denial, proposed suspension or revocation, the business thereby is deemed to have waived the right to a hearing before the Panel and the DEH may forthwith implement the proposed action without a hearing.

(Ord. 18 § 2, 2008, RCC § 8.64.130)

A. For Imminent Hazard or Threat. Notwithstanding the above, in those instances where the Director makes a determination, based upon written findings, that violations of the provisions of the business emergency plan as specified in Chapter 6.95 CH&SC, or any provision of the business emergency plan as specified in Title 19 of the CCR as such provisions as amended or violations of this chapter present an imminent hazard to or threaten the public health and safety or the environment, the Director may immediately suspend the permit. In such instances, the Director shall afford the permit holder an opportunity for an office hearing before the Director within 10 days following the action of suspension. The hearing shall be before the Panel where at least one member is not of the DEH.

B. Right to be Heard by Panel. A permit holder who makes use of the hearing procedures specified in subsection A of this section may still pursue the hearing process before the Panel established in Section 8.56.150 when the suspension continues in effect.

(Ord. 18 § 2, 2008, RCC § 8.64.140)

A. Members of the Review Panel. The Hazardous Materials and Waste Review Panel is established and shall be composed of three regular members, two of which are appointees of the City Council to the Unified Program Hazardous Materials Advisory Committee. The Director shall serve as the chair of the Panel and the two other members shall be: (1) the City Council appointee from the supervisorial district from which the appeal is generated or in their absence another appointee of the City Council as selected by the Director; and (2) a City Council appointee selected by the Director.

B. Purpose of the Review Panel. The purpose of the Panel shall be to hear and determine appeals from denials, proposed suspensions and revocations of permits and appeals from immediate suspension of permits applied for or issued pursuant to this chapter. The Panel shall meet at such times and at such places as designated by the Director and shall establish its own procedures not inconsistent with this chapter or any other law or regulation. No act of the Panel shall be valid or binding unless a majority of the members or their respective alternates who are present, concur therein.

C. Functions of the Panel. Appeals from the denial, immediate suspension, or the proposed suspension or revocation of permits issued pursuant to this chapter, shall be heard by the Panel, which may affirm, modify or reverse the denial, proposed denial suspension or revocation, except that no suspension period shall exceed 90 days.

D. Evidence to be Received. In the notice of proposed action, the DEH shall set forth facts and the applicable statutes, regulations or provisions of this chapter which are alleged to have been violated. The appellant may appear in person or through or with an agent or legal counsel and may present such evidence as he or she may desire and show cause why the application for a permit should be granted, why the permit should be reinstated or why the permit should not be suspended or revoked, as the case may be. In conducting the hearing, the Panel shall receive such information, evidence, and testimony as is relevant to the alleged violation. The formal rules of evidence shall not apply; however, evidence shall be of the type upon which responsible persons are accustomed to rely in the conduct of serious affairs.

E. Burden of Proof. The DEH has the burden of proof by the preponderance of the evidence to substantiate a cause for the denial, immediate suspension, proposed suspension or revocation as provided in Sections 8.56.120 and 8.56.140.

F. Record Keeping. Appeal hearings shall be tape-recorded and such recordings shall be the official records of such hearings and shall be retained in the custody of the DEH.

G. Panel Decisions. The Panel shall render its written decision, not later than 15 working days following the conclusion of the hearing, and a copy of its decision, including findings shall be personally delivered or sent by the DEH to the appellant, by certified mail, postage prepaid, return receipt requested, not later than 10 days following the rendering of said decision.

H. Finality of Decision. The decision of the Panel shall be final.

(Ord. 18 § 2, 2008, RCC § 8.64.150)

A. Infraction. Any person, business owner or operator who violates any of the provisions of this chapter shall be guilty of an infraction and, upon conviction thereof, shall be punished by: (1) a fine not exceeding $100.00 for a first violation of this chapter; (2) a fine not exceeding $200.00 for a second violation of this chapter within one year; (3) a fine not exceeding $500.00 for each additional violation of this chapter after a second violation within one year.

B. Misdemeanor. Notwithstanding subsection A of this section, a first and subsequent offense may be charged and prosecuted as a misdemeanor and, upon conviction thereof, shall be punished as provided by California Penal Code, Section 19, as it may be amended.

C. Separate Violations. Each day a violation is committed or permitted to continue shall constitute a separate offense.

D. Remedies and Penalties in Chapter 1.16. The additional remedies, penalties and procedures for violation of this chapter and for recovery of costs related to enforcement provided for in Chapter 1.16 are incorporated by this reference.

E. Correction of Violations. Payment of any penalty established by this chapter shall not relieve a person or business from the responsibility of correcting any violation of this chapter, statute or regulation, nor shall it relieve a person or business from the payment of a late fee imposed under Chapter 3.44.

(Ord. 18 § 2, 2008, RCC § 8.64.160)

The handling of any hazardous material in violation of the provisions of this chapter is declared to be a public nuisance.

(Ord. 18 § 2, 2008, RCC § 8.64.170)