Chapter 8.12
HAZARDOUS MATERIALS STORAGE AND REGISTRATION

Sections:

8.12.010    Findings and purpose.

8.12.020    Definitions.

8.12.030    Underground storage tanks.

8.12.040    Underground storage tank permit.

8.12.050    Hazardous material registration form.

8.12.060    Contents of registration form.

8.12.070    Exemptions to disclosure.

8.12.080    Trade secrets.

8.12.090    Enforcement.

8.12.100    Maintenance of files.

8.12.110    Fees.

8.12.010 Findings and purpose.

The city council finds and declares:

A.    Purpose.

1.    The purpose of this chapter is to provide a continuing source of current information concerning hazardous substances and chemicals being utilized in the city to protect the general health and safety of the public and to enable emergency personnel to respond safely and speedily to emergency situations which may arise.

2.    The city council declares that it is in the public interest to establish a continuing program for the purpose of preventing contamination from, and improper storage of, hazardous substances stored underground. It is the intent of the council, in enacting this chapter, to establish orderly procedures that will insure that newly constructed underground storage tanks meet appropriate standards and that existing tanks be properly maintained, inspected, and tested so that the health, property, and resources of the people of the city will be protected.

B.    Findings.

1.    Essential information of 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, law enforcement agencies and emergency communications officers.

2.    Hazardous substance and chemical information disclosure is necessary so that the city and other affected public agencies may respond effectively to fire or other emergency involving materials that exhibit hazardous characteristics and may pose hazards to the community.

3.    Substances hazardous to the public health and safety, and to the environment, are stored prior to use or disposal in thousands of underground locations in the state.

4.    Underground tanks used for the storage of hazardous substances and wastes are potential sources of contamination of the ground and underlying aquifers, and may pose other dangers to public health and the environment.

5.    It is not the intent of this chapter to regulate the handling, storage, use, processing or disposal of hazardous substances and chemicals.

6.    It is the intent of the city council that this chapter establish an orderly system by which establishments that contain materials which may be hazardous are identified, and information regarding these materials is made available to fire fighters, health officials, health care providers, law enforcement agencies and emergency communications officers in such a way that the statutory privilege of trade secrecy is not abridged. (Ord. 83-18 § 1 (part), 1983)

8.12.020 Definitions.

For purposes of this chapter, the following definitions apply:

“Abandoned tank” means a tank that is not in use and not monitored and/or safeguarded in compliance with regulations promulgated by the department of health pursuant to this chapter.

“Business” means an employer, self-employed individual, trust, firm, joint stock company, corporation, partnership, association, city, county, district, and the state, or any department or agency thereof. For purposes of this chapter, a business shall include both profit and nonprofit business.

“CAS number” means the unique identification number assigned by the Chemical Abstracts Service to specific chemical substances.

“Chemical name” means the scientific designation of a substance in accordance with the system developed by the Chemical Abstracts Service.

“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.

“Establishment” means the physical premises of a business.

“Handle” or “handling” means to use, store, treat or generate a hazardous material in any fashion.

“Hazardous material” means any material or substance in “The Director’s List of Hazardous Substance” developed by the director of the Department of Industrial Relations pursuant to the provisions of the Hazardous Substances Information and Training Act (SB 1874) or cited in Article 9, Division 4, Title 22 of the California Administrative Code or is classified by the National Fire Protection Association as either flammable liquid, a Class II combustible liquid or a Class III-A combustible liquid.

“Hazardous materials registration form” means the form required to be filed with the county health department by every person who owns or operates an establishment which uses hazardous materials.

“Hazardous substance,” see hazardous material.

“Hazardous waste,” see hazardous material.

“Health officer” means the health officer of Monterey County or his authorized representative, acting on behalf of the city.

“Laboratory” means a place equipped for testing, analyses or experimental study in a science; utilizing hazardous materials as defined in this section in any amount.

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

“Primary containment” means the first level of containment, such as the portion of a tank which comes into immediate contact on its inner surface with the hazardous substance being contained.

“Product-tight” means impervious to the substance which is contained, or is to be contained, so as to prevent the seepage of the substance which it contains over the useful life of the tank.

“Secondary containment” means the level of containment external to, and separate from, the primary containment.

“SIC code” means the identification code to specific types of businesses.

“Single-walled” means construction with walls made of only one thickness of material. For the purpose of this chapter, laminated, coated, or clad materials shall be considered single-walled.

“Storage” or “store” means the containment, handling, or treatment of hazardous substances, either on a temporary basis 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 California Department of Health Service.

“Substantial modification” means any changes to an underground storage tank facility which include, but are not limited to, one or more of the following: replacement of a tank, repairing a tank, installation of new pipeline, and installation or replacement of monitoring devices.

“Unauthorized release” means any release or emission of any hazardous substance which does not conform to the provisions of this chapter, unless such release is authorized by the State Water Resources Control Board pursuant to Division 7 of the California Water Code.

“Underground storage tank” means any one of combination of tanks, including pipes connected thereto, which is used for the storage of hazardous substances and which is substantially or totally beneath the surface of the ground. “Underground storage tank” does not include any of the following:

1.    Tanks which are located on a farm and store motor vehicle fuel which is used only to propel vehicles used primarily for agricultural purposes;

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

“Use” includes the handling, processing, or storage of hazardous materials.

“User” means any person who uses or handles a hazardous material. (Ord. 84-10 §§ 1—4, 1984; Ord. 83-18 § 1 (part), 1983)

8.12.030 Underground storage tanks.

A.    Every underground storage tank installed after January 1, 1984, shall meet the following requirements and no person, firm or corporation shall construct or install any new underground storage tank or facility until a permit has been issued pursuant to this chapter.

1.    Be designed and constructed to provide primary and secondary levels of containment of the hazardous substances stored in them in accordance with the following performance standards:

a.    Primary containment shall be product-tight;

b.    Secondary containment shall be constructed to prevent structural weakening as a result of contact with any released hazardous substances, and also be capable of storing, for the maximum anticipated period of time necessary for the recovery of any released hazardous substance;

c.    In the case of an installation with one primary container, the secondary containment shall be large enough to contain at least one hundred percent of the volume of the primary tank;

d.    In the case of multiple primary tanks, the secondary container shall be large enough to contain one hundred fifty percent of the volume of the largest primary tank placed in it, or ten percent of the aggregate internal volume of all primary tanks, whichever is greater;

e.    If the facility is open to rainfall, then the secondary containment must be able to additionally accommodate the volume of a twenty-four-hour rainfall as determined by a one-hundred-year storm history;

f.    Single-walled containers do not fulfill the requirement of an underground storage tank providing both a primary and a secondary containment;

g.    The design and construction of underground storage tanks for motor vehicle fuels storage need not meet the requirements of subsection (A)(1)(a) though (f) of this section, inclusive, if the primary containment construction is of glass fibre, reinforced plastic, cathodically protected steel, or steel-clad with glass fibre reinforced plastic any such alternative primary containment is installed in conjunction with a system that will intercept and direct a leak from any part of the tank to a monitoring well to detect any release of motor vehicle fuels stored in the tank and which is designed to provide early leak detection, response, and to protect groundwater from releases, and if the monitoring is in accordance with the alternative method identified in subsection (C)(3) of this section. Pressurized piping systems connection to underground storage tanks used for the storage of motor vehicle fuels and monitored in accordance with subsection (C)(3) of this section shall also be deemed to meet the requirements of this subdivision.

2.    Be designed and constructed with a monitoring system capable of detecting the entry of the hazardous material stored in the primary containment into the secondary containment. If water could intrude into the secondary containment, a means of monitoring for water intrusion and for safely removing the water shall also be provided.

3.    When required by the county department of health, a means of overfill protection for any primary tank, including an overfill prevention device or an attention-getting higher level alarm, or both. Primary tank filling operations of underground storage tanks containing motor vehicle fuels which are visually monitored and controlled by a facility operator satisfy the requirements of this subdivision.

4.    Different substances that in combination may cause a fire or explosion, or the production of flammable, toxic, or poisonous gas, or the deterioration of a primary and secondary container, shall be separated in both the primary and secondary containment, so as to avoid potential intermixing.

5.    If water could enter into the secondary containment by precipitation of infiltration, the facility shall contain a means of removing the water by the owner or operator. This removal system shall also provide for a means of analyzing the removed water for hazardous substance contamination and a means of disposing of the water, if so contaminated, at an authorized disposal facility.

B.    For every underground storage tank installed on or before January 1, 1984, and used for the storage of hazardous substances the following actions shall be taken:

1.    On or before January 1, 1985, the owner shall outfit the facility with a monitoring system capable of detecting unauthorized releases of any hazardous substances stored in the facility, and thereafter, the operator shall monitor each facility, based on materials stored and the type of monitoring installed;

2.    Provide a means for visual inspection of the tank, wherever practical, for the purpose of the monitoring required by subsection (B)(1) of this section. Alternative methods of monitoring the tank on a monthly, or more frequent basis, may be required by the local agency, consistent with the regulations of the department of health.

C.    The alternative monitoring methods include, but are not limited to, the following methods:

1.    Pressure testing, vacuum testing or hydrostatic testing of the piping systems or underground storage tanks;

2.    A groundwater monitoring well or wells which are down gradient and adjacent to the underground storage tank, vapor analysis within a well where appropriate, and analysis of soil borings at the time of initial installation of the well. The department of health shall develop regulations specifying monitoring alternatives. Further, the department of health shall approve the location and number of wells, the depth of wells and the sampling frequency, pursuant to these regulations;

3.    For monitoring tanks containing motor vehicle fuels, daily gauging and inventory reconciliation by the operator, if inventory records are kept on file for one year and are reviewed quarterly, the tank is tested for tightness hydrostatically or, when appropriate with pressure between three and five pounds, inclusive, per square inch at time intervals specified by the department of health and whenever any pressurized system has a leak detection device to monitor for leaks in the piping. The tank shall also be tested for tightness hydrostatically or where appropriate, with pressure between three and five pounds, inclusive, per square inch whenever there is a shortage greater than the amount which the department of health shall specify by regulation.

D.    Abandonment, Closure or Temporary Closure of Underground Storage Tanks.

1.    No tank shall be abandoned unless properly monitored and safeguarded in accordance with regulations promulgated by the department of health.

2.    Tanks which are temporarily out of service and are intended to be returned to use must continue to be monitored and inspected.

3.    Any tank which is not being monitored and inspected in accordance with this section must be closed or removed in accordance with regulations promulgated by the department of health.

4.    Whenever an abandoned tank is located, a plan for the closing or removing or the upgrading and permitting of such tank and permit application therefor shall be filed within ninety days of its discovery.

E.    Maintenance, Repair or Replacement.

1.    Permittee will carry out regular maintenance, and upkeep, in a careful and safe manner.

2.    Any substantial modification or repair of a facility other than minor, maintenance or emergency repairs shall be in accordance with plans to be submitted to the department of health and a permit to repair shall first be obtained prior to commencement of any such substantial modification or repair.

3.    Permittee may make emergency repairs to a facility in advance of seeking an additional permit approval whenever an immediate repair is required to prevent or contain an unauthorized discharge or to protect the integrity of the containment. However, within five working days after such emergency repairs have been started, permittee shall seek approval pursuant to this chapter by submitting drawings or other information adequate to describe the repairs to the department of health.

F.    Unauthorized Discharge of Hazardous Materials.

1.    Any unauthorized release from the primary containment which the operator is able to clean up within eight hours and which does not escape from the secondary containment, nor cause any deterioration of the secondary containment of the underground storage tank, shall be recorded on the operator’s monitoring reports.

2.    Any unauthorized release which escapes from the secondary containment, increases the hazard of fire or explosion, or causes any deterioration of the secondary containment of the underground tank shall be reported by the operator to the department of health within twenty-four hours after the release has been detected or should have been detected. A full written report shall be transmitted by the owner or operator of the underground storage tanks within five working days of the occurrence of the release.

3.    The department of health shall review the operating permit whenever there has been an unauthorized release or when it determines that the underground storage tank is unsafe. The department may terminate a permit for a facility when it has been determined that the operation of the facility would pose a threat to public health. (Ord. 84-10 §§ 5, 6, 1984: Ord. 83-18 § 1 (part), 1983)

8.12.040 Underground storage tank permit.

Any person, firm or corporation which stores any hazardous material in an underground storage tank shall obtain and keep current, an underground storage tank permit issued pursuant to this chapter. One such permit shall be issued for a single facility. Additional approvals shall be obtained for any underground storage tank thereafter connected, installed, constructed, substantially modified, replaced, closed or removed.

A.    No person, firm or corporation shall cause, suffer or permit the storage of hazardous materials in underground tanks:

1.    In a manner which violates a provision of this division or any other local, federal or state statute, code or regulation relating to hazardous materials; or

2.    In a manner which causes an unauthorized discharge of hazardous materials or poses a significant risk of such unauthorized discharge.

B.    Application for Permit. Application for a new, amended or renewed permit or any additional approval shall be made to the health department on the form provided by the county.

C.    Approval of Permit. A permit shall not be approved until the department of health is satisfied that the storage approved adequately conforms to the provisions of this chapter.

D.    Provisional Permit. If the department of health finds that the proposal does not completely conform to the provisions of this chapter, it may approve a provisional permit, subject to conditions to be imposed by the department when such a provisional permit is feasible and does not appear to be detrimental to the public interest. The applicant must be informed in writing of the reasons why a full-term permit was not issued.

E.    Temporary Permit. A temporary permit for storage may be issued where storage does not exceed thirty days and occurs no more frequently than every six months.

F.    Issuance of Permits.

1.    Upon the approval of a provisional, or full-term permit by the department of health and upon the payment of any applicable fee, the department shall issue and deliver the permit to the applicant. Such permit shall contain the following information:

a.    The name and address of the permittee for purposes of notice and service of process;

b.    The address of the facility for which the permit is issued;

c.    Authorization of the storage facility(ies) approved under the permit, the permit quantity limit(s) and the approved hazard class or classes for the storage facility(ies);

d.    The date the permit is effective;

e.    The date of expiration;

f.    When applicable, a designation that the permit is provisional;

g.    Any special conditions of the permit.

2.    The department of health shall keep a record of all permits issued and all conditions attached thereto.

G.    Terms. A permit may be issued for a term of three years, excepting provisional permits and construction and abandonment permits which may be issued for any period of time up to six months and temporary permits which may be issued for no longer than thirty days.

H.

Fees.

1.

Operating Permits.

a.

Base fee per facility (1—5 tanks)

$125.00/year

b.

Fee for each additional tank over 5

40.00/year

This fee covers the permit to operate the tank and the registration of the hazardous materials in the tank.

2.

Permit to Construct or Modify.

a.

Base plan check fee (includes 1 tank)

$125.00

b.

Fee for each additional tank

40.00

3.

Permit to Abandon.

a.

Base fee for 1 tank

$100.00

b.

Each additional tank

30.00

I.    Civil and Criminal Penalties.

1.    Any operator of an underground storage tank shall be liable for a civil penalty of not less than five hundred dollars or more than five thousand dollars per day for any of the following:

a.    Operates an underground storage tank which has not been issued a permit;

b.    Fails to monitor the underground storage tank, as required by the permit;

c.    Fails to maintain records;

d.    Fails to report an unauthorized release;

e.    Fails to abandon an underground storage tank in accordance with this chapter.

2.    Any owner of an underground storage tank shall be liable for a civil penalty of not less than five hundred dollars or more than five thousand dollars per day for any of the following:

a.    Failure to obtain a permit as specified by this chapter;

b.    Failure to repair an underground tank in accordance with the provisions of this chapter;

c.    Failure to construct an underground storage tank in accordance with the provisions of this chapter;

d.    Abandonment or improper closure of any underground tank subject to the provisions of this chapter;

e.    Failure to outfit a facility with a monitoring system capable of detecting an unauthorized release of any hazardous substance stored in the facility as required by the department of health;

f.    Knowing failure to take reasonable and necessary steps to assure compliance with this chapter by the operator of an underground tank.

3.    Any person who falsifies any monitoring records required by this chapter, or knowingly fails to report an unauthorized release, shall, upon conviction, be punished by a fine of not less than five thousand dollars or more than ten thousand dollars, or by imprisonment in the county jail for not to exceed one year, or by both that fine and imprisonment.

4.    In determining both the civil and criminal penalties imposed pursuant to this section, the court shall consider all relevant circumstances, including, but not limited to, the extent of harm or potential harm caused by the violation, the nature of the violation and the period of time over which it occurred, the frequency of past violations, and the corrective action, if any, taken by the person who holds the permit.

5.    Penalties under this section are in addition to, and do not supersede or limit, any and all other legal remedies and penalties, civil or criminal, which may be applicable under other laws. (Ord. 84-10 §§ 7—10, 1984; Ord. 83-18 § 1 (part), 1983)

8.12.050 Hazardous material registration form.

Any person who owns or operates an establishment that contains at any one time during the year, hazardous materials as defined in Section 8.12.020 shall file a completed hazardous material registration form with the health department within ninety days of the effective date of this chapter. (Ord. 83-18 § 1 (part), 1983)

8.12.060 Contents of registration form.

A.    Hazardous material registration forms shall be prepared by the health department and made available to persons who use hazardous materials.

B.    The hazardous material registration form shall include requests for the following information:

1.    Identification information including but not limited to name, address, phone number and assessor’s parcel number;

2.    The names and phone numbers of at least two people representing the business able to assist agency personnel in the event of an emergency during nonbusiness hours;

3.    The SIC code of the business if applicable;

4.    A list of the hazardous materials at the establishment designated by CAS number, chemical name and common name as well as the form in which the material is stored and the maximum amount present during a thirty-day period;

5.    Each business shall designate in the appropriate box if there is a laboratory at its establishment;

6.    A sketch showing the location of any laboratory at the establishment;

7.    For businesses consisting of more than one building, a sketch showing where the hazardous material is stored. (Ord. 83-18 § 1 (part), 1983)

8.12.070 Exemptions to disclosure.

The following shall be exempt from the disclosure requirements of this chapter:

A.    Any person who handles radioactive materials that are exempt under Sections 30180 and 30345 of Title 17 of the California Administrative Code or licensed with the Department of Health Services;

B.    Hazardous substances contained only in consumer products packaged for distribution to, and use by, the general public;

C.    Any person using, handling, or storing less than five hundred pounds or fifty-five gallons a month, whichever is less, of a hazardous material. The exemption of this subsection C shall not apply to the use, handling, or storage of known carcinogens except to the extent that such carcinogens are used or intended to be used for medical or therapeutic purposes;

D.    Any person, while engaged in the transportation of hazardous materials, including storage directly incident to transportation, provided that such materials are accompanied by shipping papers prepared in accordance with the provisions of the Federal Hazardous Materials Regulations (40 C.F.R., Subchapter C). (Ord. 83-18 § 1 (part), 1983)

8.12.080 Trade secrets.

A.    If a person believes that a request for information made by the disclosure form involves the release of a trade secret or proprietary information, the person shall submit to the health officer, adequate information and substantiation of the claim of trade secrecy.

B.    The health officer and the proper public agencies shall protect from disclosure any and all trade secrets and proprietary information coming into his or her possession, as defined in subsection (d) of Section 6245.7 of the California Government Code and Section 1060 of the California Evidence Code, when requested in writing by the user.

C.    Any trade secret or proprietary information reported to or otherwise obtained by the health officer shall not be disclosed to anyone except an officer or employee of the city, the county, the state or the Federal Government who demonstrate a need to know the information in connection with their official duties.

D.    For the purposes of this section, fire and emergency response personnel and health personnel operating within the jurisdiction of the city shall be considered employees of the city.

E.    The health officer, with the city attorney, upon receipt of a request for his designation of information submitted 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 or proprietary information. No information will be disclosed until a final determination of trade secret is made.

F.    If the health officer and city attorney determine that the submitted information should be designated as trade secret or proprietary information, then the materials involved will be identified only by the properties and returned to the appropriate agencies.

G.    If the health officer and city attorney determine that the information is not a trade secret:

1.    The city attorney shall notify the person by certified mail;

2.    The person shall have thirty days after receipt of notification to request reconsideration of the city attorney’s determination and to provide the city attorney with any further data supporting the claim of trade secrecy privilege;

3.    The city attorney shall determine whether such information is protected as a trade secret or proprietary information within fifteen days after receipt of the additional data supporting the claim of trade secrecy or, if no additional data is submitted, within thirty days of the original notice. The city attorney shall notify the person and any party who has requested the information that it is not protected as a trade secret. The final notice shall also specify a date, not sooner than fifteen days after the date of mailing of the final notice, when the information may be made available to the appropriate public agencies;

4.    Prior to the date specified in the final notice, the person may institute an action in the Superior Court for a declaratory judgment as to whether such information is subject to protection under subsection A of this section.

H.    The provisions of this section shall not permit a person to refuse to file a disclosure information form with the city attorney except under the conditions set forth in subsection E of this section. (Ord. 83-18 § 1 (part), 1983)

8.12.090 Enforcement.

A.    The health officer is authorized and empowered to enforce the provisions of this chapter. The enforcement shall include the inspection of facilities and other activities directly related to the enforcement of this chapter. No person shall obstruct or interfere with the health officer in the performance of these duties.

B.    Any person who violates any provision of this chapter shall be deemed guilty of an infraction. (Ord. 83-18 § 1 (part), 1983)

8.12.100 Maintenance of files.

A.    The health officer shall maintain active files of all registration forms received for a period of three years. Registration forms which are more than three years old shall be placed in inactive files and retained for a period of thirty years.

B.    The health officer shall index registration forms by street addresses and parcel numbers, and shall cross reference them by business name, and by the SIC code numbers and the CAS numbers listed on the registration forms. (Ord. 83-18 § 1 (part), 1983)

8.12.110 Fees.

Each initial registration of a hazardous material disclosure form shall be accompanied by a filing fee of seventy-five dollars and thereafter an annual renewal filing fee of thirty-five dollars per year. (Ord. 84-10 § 11, 1984: Ord. 83-18 § 1 (part), 1983)