Windsor Municipal Code Art. 1 Administrative

This chapter shall be known as the "Hazardous Materials Management Ordinance (HMMO) of the Town of Windsor."

The Town Council finds and declares that chemicals are widely used in commerce and by individuals in our society and that properly controlled and utilized chemicals can be beneficial to our overall well-being. However, the Council further finds that unknown quantities and qualities of chemicals exist which may be toxic, corrosive, irritating, sensitizing or flammable and which may cause serious illness or harm to humans, animals and the environment. The public has a right to expect regulation of these materials.

The Council further finds and declares that public protection from hazardous materials release or threatened release to the environment is essential. This requires proper planning on the part of the community as well as those responsible for hazardous materials.

The Town Council further finds that substantial public and private cooperation and education is essential for the appropriate understanding and control of chemicals.

a. It is the intent of this chapter to regulate the storage, handling and management of hazardous materials or substances as defined in Section 13-1-115 of this chapter, whether in waste or non-waste form, unless specifically preempted by State or Federal law.

b. This chapter provides for the inventory and control of hazardous materials which are stored above ground and underground in the Town of Windsor to the extent permitted by law.

c. This chapter provides for release response planning and inventory for businesses as defined herein.

d. This chapter provides for corrective action by the Town to remedy or prevent an immediate threat to the public health, domestic livestock, wildlife or the environment arising out of any actual or threatened disposal or release of a hazardous waste or substance; authorizes the Town to remedy any actual or threatened release not corrected by the responsible party; designates the parties responsible for the cost of such actions by the Town; and provides for criminal and civil penalties to be assessed for violations of this chapter.

As used in this chapter:

Abandonment shall mean removing a hazardous material storage facility from service without compliance with this chapter.

Acutely hazardous material shall mean any chemical on the list prepared by the Environmental Protection Agency and classified as an acutely hazardous 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.

Administering agency shall mean the Town of Windsor Fire Department.

Administrative authority shall mean the Town of Windsor Fire Department or such other agencies as may be designated by the Town Council. Designees may be other departments or agencies and such other agencies or entities approved by the Town Council. All designees shall be responsible to the Public Health Director.

Aggregate quantity shall mean the sum total of a specific form of hazardous category stored at a facility, i.e., total amount of liquids, total amount of solids, total amount of gases.

Business shall mean an employer, self-employed individual, trust, firm, joint stock company, corporation, partnership or association. For purposes of this chapter, "business" includes a business organized for profit and nonprofit business. "Business" also includes any City, County, District, the State, any department or agency thereof, or the United States.

Business plan shall mean a separate plan for each facility, site or branch of a business which meets the requirements of this chapter or Chapter 6.95 commencing with Section 25504 of Division 20 of the Health and Safety Code.

Carcinogen shall mean any chemical or combination of chemicals for which sufficient evidence of carcinogenicity exists in at least one (1) species in a bioassay conducted under the auspices of the National Cancer Institute (NCI) or the National Toxicology Program (NTP) or sufficient evidence of carcinogenicity in animals or humans as evaluated by the International Agency for Research on Cancer (IARC) or as designated by the California Toxic Substances Control Department or the chemicals listed in Section 66680, California Code of Regulations, Title 22, also referred to as Appendix X "List of Chemical Names and Common Names."

Ceasing operation shall mean temporary or permanent discontinuance of operation of a hazardous material storage facility in compliance with this chapter.

Chemical name shall mean the scientific designation of a material in accordance with the nomenclature system developed by the International Union of Pure and Applied Chemistry or the system developed by the Chemical Abstracts Service.

Common name shall mean any designation or identification such as a code name, code number, trade name or brand name used to identify a substance other than by its chemical name.

Corrective action shall mean any action taken by any governmental agency to enforce laws or regulations relating to the storage, handling or management of hazardous materials, or any action taken by any governmental agency to compel the lawful disposal of hazardous materials, the remediation of a contaminated site, the removal of a threatened release or to recover costs of disposal or remediation where a governmental agency has arranged for or accomplished the remediation of a threatened or actual release.

Day shall mean a calendar day unless otherwise specified in this chapter.

Disposal shall mean abandoning or relinquishing custody or control over hazardous materials in a manner which does not conform to the provisions of this chapter.

Dot shall mean the Federal Department of Transportation regulations as listed in 49 Code of the Federal Regulations.

Facility shall mean:

a. Any one (1) or combination of underground tanks used by a single business entity at a single location or site.

b. Contiguous land or structures or other appurtenances or improvements on land used for the above-ground storage of hazardous materials.

c. Any combination of b. and c. above.

Gas shall mean a fluid with vapor pressure exceeding forty (40) psi at one hundred (100º) degrees Fahrenheit.

Handle shall mean to use, generate, process, produce, package, treat, store, emit, discharge or dispose of a hazardous material in any fashion.

Handler shall mean any business which handles a hazardous material or acutely hazardous material, except where all the acutely hazardous materials present at the business are handled in accordance with a removal or remedial action taken pursuant to Division 20, Chapter 6.8 commencing with Section 25300, Health and Safety Code.

Hazard class shall mean the eight (8) categories of hazardous materials as categorized and defined by the Department of Transportation in 49 CFR.

Hazardous material shall mean any material that, 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 work place or the environment. "Hazardous materials" include, but are not limited to, hazardous substances, hazardous waste, and any material which a handler or the administrative authority has a reasonable basis for believing that it would be injurious to the health and safety of persons or harmful to the environment if released into the work place or the environment.

Hazardous Materials Management Plan shall mean that section of the Business Plan which includes general information about a facility and emergency response procedures for that facility.

Hazardous materials storage facility shall mean a facility where hazardous materials are stored.

Hazardous substance shall mean any substance or chemical product for which one (1) of the following applies:

a. The manufacturer or producer is required to prepare an MSDS for the substance or product pursuant to the Hazardous Substances Information and Training Act (Chapter 2.5, commencing with Section 6360 of Part 1 of Division 5 of the Labor Code), OSHA Hazard Communication Standard (29C.F.R. 1910.1200), or pursuant to any applicable Federal law or regulation.

b. The substances listed as a radioactive material in Appendix B of Chapter 1 of 10 Code of Federal Regulations, which is maintained and updated by the Nuclear Regulatory Commission.

c. The substances listed pursuant to 49 Code of Federal Regulations.

d. The materials listed in Subdivision (b) of Section 6382 of the Labor Code.

e. Any substance defined by Section 25281 (d) of the Health and Safety Code.

NOTE: "hazardous material" and "hazardous substance" are used interchangeably in this chapter.

Hazardous waste generator shall mean any person whose act or process produces hazardous waste identified as listed in Article 9 or 11 of Title 22 of the California Code of Regulations or whose act first causes a hazardous waste to become subject to regulation.

Hazardous wastes shall mean hazardous waste as defined in Sections 25115, 25117, 25316 and 25501 of the Health and Safety Code and Title 22, Section 66088 of the California Code of Regulations.

Health officer shall mean the Public Health Officer or designee.

Highly toxic material shall mean material with a health hazard rating of three (3) or four (4) when rated in accordance with Uniform Fire Code Standard No. 79-3.

HMIS shall mean Hazardous Materials Inventory Statement.

HMMP shall mean Hazardous Materials Management Plan.

Lead agency for hazardous materials management shall mean the Department of Public Health.

Location shall mean a room, enclosure, building, lot or contiguous group of lots.

Maintenance shall mean the activity necessary to retain or keep equipment, materials and operations in satisfactory condition.

Minimum standards and regulations shall mean the minimum standards and regulations respecting hazardous and extremely hazardous wastes adopted by the Toxic Substances Control Department of the California Environmental Protection Agency pursuant to Section 25150 of the Health and Safety Code.

Mixture shall mean any solution of intimate admixture of two (2) or more materials which do not react chemically with each other, at least one (1) of which is a hazardous substance and constitutes one (1%) percent or more of the mixture or exists as an impurity and constitutes two (2%) percent or more of the mixture, unless specified at different concentrations by the Director, Department of Industrial Relations, pursuant to Labor Code Section 6383.

Modification shall mean a change or alteration of materials or specifications.

Modified facility shall mean an addition or other change to a facility which results in either a substantial increase in the amount of hazardous materials handled by the hazardous material storage facility or a significantly increased risk in handling a hazardous material, as determined by the administering agency. "Modified facility" does not include an increase in production up to the production levels authorized in a permit granted pursuant to Health and Safety Code Section 42300.

Operator shall mean those persons described as "operators" by the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended (42 USC 9607 et seq.)

Oxidizing materials shall mean materials that readily yield oxygen to stimulate combustion.

Owner shall mean those persons described as "owners" by the Comprehensive Environmental Response and Liability Act, as amended (42 USC 9607 et seq.).

Person shall mean an individual, business, trust, firm, joint stock company, corporation, including a government corporation, partnership and association. "Person" also includes any City, County, district, the State, any department or agency thereof, or the United States, to the extent authorized by Federal laws.

Pipe shall mean any pipeline or system of pipelines used in connection with the storage of hazardous materials including, but not limited to, valves and other appurtenances connected to the pipe, pumping units, fabricated assemblies associated with pumping units and metering and delivery stations and fabricated assemblies therein, but does not include any of the following:

a. An interstate pipeline subject to 49 Code of Federal Regulations, Part 195.

b. An intrastate pipeline subject to Chapter 5.5, commencing with Section 51010, of Part 1 of Division 1 of Title 5 of the Government Code.

c. Unburied delivery hoses, vapor recovery hoses and nozzles which are subject to unobstructed visual inspection for leakage.

d. Vent lines, vapor recovery lines and fill pipes which are designed to prevent, and do not hold, standing fluid in the pipes or lines.

Poisonous gas shall mean any gas of such nature that a small amount of the gas when mixed with air is dangerous to human health or safety or the environment.

Primary containment shall mean the first level of containment, such as the portion of a tank which comes into immediate contact on its inner surface with the hazardous material being contained.

Product-tight shall mean impervious to the substance which is contained, or is to be contained, so as to prevent the seepage of the substance from the primary containment. To be product-tight, the tank shall not be subject to physical or chemical deterioration by the substance which it contains over the useful life of the tank.

Public agency shall mean any City, County, district, the State, any department or agency thereof, or the United States to the extent authorized by Federal law.

Reactive materials shall mean materials which can enter into a hazardous chemical reaction with other stable or unstable materials.

Registered professional shall mean a professional engineer, who is registered pursuant to the Professional Engineers Act (Chapter 7, commencing with Section 6700, of division 3 of the Business and Professions Code), or other professional specialist who is qualified to perform and implement the Risk Management and Prevention Program (RMPP).

Release shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injection, escaping, leaching, dumping or disposing or allowing any release into the environment of any hazardous material which does not conform to the provision of this chapter or to the California Health and Safety Code, unless the release is authorized by the State Water Resources Control Board pursuant to Division 7 (commencing with Section 13000) of the Water Code or other authorized regulatory agency. Release also means a disposal or release or a hazardous material which may result or results in a significant present or potential hazard to human health or safety.

Remedial action shall mean those actions taken in connection with monitoring, assessing or evaluating a release or threatened release of a hazardous material or are taken in connection with attempting an amelioration or permanent removal of a release or threatened release of a hazardous material.

Repair shall mean to put back in good condition after damage, decay or other deterioration without change of materials or specifications.

Risk Management and Prevention Program or RMPP shall mean all of the administrative and operational programs which are designed to prevent acutely hazardous materials accident risks including, but not limited to, programs which include design safety of new and existing equipment, standard operating procedures, preventive maintenance programs, operator training and accident investigation procedures, risk assessment of unit operations or operating alternatives, emergency response planning and internal or external audit procedures to ensure that those programs are being executed as planned.

Secondary containment shall mean the level of containment external to, and separate from, the primary containment.

Segregated shall mean storage in the same area but physically separated from other materials by adequate space, walls or partitions and in accordance with manufacturers' recommendations.

SIC Code shall mean the Standard Industrial Classification number assigned by the Occupational Safety and Health Administration to specific types of businesses.

Single-walled shall mean tank construction with walls made of only one (1) thickness of material. For the purpose of this chapter, laminated, coated or clad materials shall be considered single-walled.

Special inspector shall mean a professional engineer registered pursuant to Chapter 7 (commencing with Section 6700) of Division 3 of the Business and Professions Code who is qualified to attest, at a minimum, to structural soundness, seismic safety, the compatibility of construction materials with contents, cathodic protection and the mechanical compatibility of the structural elements of underground or above-ground storage tanks.

Storage or store shall mean the containment, handling or treatment of hazardous materials either on a temporary basis exceeding thirty (30) days 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 Toxic Substances Control Department of the California Environmental Protection Agency pursuant to Section 25200 of the Health and Safety Code or has been granted interim status under Section 25200.5 of the Health and Safety Code. "Storage" or "store" does not include the storage of hazardous materials which are in transit. In transit means not stationary for more than twelve (12) consecutive hours.

Substantial repair or modification shall mean any repair or modification that occurs within a six (6) month period that is equal to or greater than twenty (20%) percent of the replacement cost or results in deviation from approved plans and specifications unless otherwise provided by law.

Threatened release shall mean a condition creating an unreasonable risk of release.

Underground storage tank shall mean any one (1) or combination of tanks, including pipes connected thereto, which is used for the storage of hazardous materials and which is substantially (at least ten (10%) percent) or totally beneath the surface of the ground. "Underground storage tank" does not include any of the following:

a. A tank used for the storage of hazardous materials used for the control of external parasites of cattle and subject to the supervision of the County Agricultural Commissioner if the County Agricultural Commissioner determines, by inspection prior to use, that the tank provides a level of protection equivalent to that required in Section 25291 of the Health and Safety Code if the tank was installed after June 30, 1984, or protection equivalent to that provided in Section 25292 of the Health and Safety Code if the tank was installed on or before June 30, 1984.

b. A tank which is located on a farm which stores motor vehicle or heating fuel used primarily for agricultural purposes and which holds one thousand one hundred (1,100) gallons or less.

c. A tank which holds one thousand one hundred (1,100) gallons or less, is located at a residence of a person, and stores home heating fuel used exclusively for personal and non-income producing purposes.

d. Tanks used for aviation or motor fuel located within one (1) mile of a farm and the tank issued by a licensed pest control operator, as defined in Section 11705 of the Food and Agriculture Code, who is primarily involved in agricultural pest control activities.

e. Structures such as sumps, separators, storm drains, catch basins, oil filled gathering lines, refinery pipelines, evaporation ponds, well cellars, separation sumps, lined and unlined pits, sumps and lagoons. Sumps which are a part of a monitoring system required by this chapter or Chapter 6.7, commencing with Section 25280 of Division 20 of the Health and Safety Code, are not exempted by this section.

Unstable materials shall mean materials, other than explosives, which in the pure state or as commercially produced will vigorously polymerize, decompose, condense or become self-reactive and undergo other violent chemical changes, including explosion, when exposed to heat, friction or shock, or in the absence of an inhibitor or in the presence of contaminants or in contact with incompatible materials.

Work station shall mean a location on a premises where hazardous materials are used in manufacturing or other process.

a. This chapter shall be administered by the Administrative Authority in cooperation with other agencies enforcing hazardous materials regulations. Regulatory duplication shall be avoided where adequate control of hazardous materials exists.

b. All installation, construction, operation, repair or modification, closure and removal of hazardous materials storage and hazardous waste generator facilities shall be accomplished in compliance with this chapter as required by the Administrative Authority.