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View recently adopted ordinances as of January 13, 2009 NOT YET CODIFIED OR INTEGRATED IN THIS SITE. (pdf file)

Ordinances enacted through January 13, 2009

Copyrighted by SANTA CLARA COUNTY CODE & Municipal Code Corporation, 1998.

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CHAPTER XIII.
HAZARDOUS MATERIALS STORAGE

ARTICLE 1.
GENERAL PROVISIONS

Sec. B11-270. Purpose.

The purpose of this chapter is the protection of health, life, resources and property through prevention and control of unauthorized discharges of hazardous materials.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-271. General obligation; safety and care.

(a) No person may cause, suffer or permit the storage of hazardous materials:

(1) In a manner which violates a provision of this chapter or any other local, federal or state statute, code, rule 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) The Director will have discretion to exempt an applicant from any specific requirement of this chapter which is not required pursuant to state or federal statute or regulation, or to require the applicant to meet additional or modified requirements, where such action would be appropriate and consistent with achieving the general obligation of this chapter for protecting public health, safety, and welfare.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-272. Specific obligation.

(a) Any person who stores any material regulated by Section B11-280 which is not excluded by Section B11-281 must obtain and keep current a hazardous materials storage permit.

(b) All such hazardous materials must be contained in conformity with Article 3 of this chapter.

(c) The storage of such hazardous materials must be in conformance with the approved hazardous materials business plan or hazardous materials/waste registration form.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-273. Definitions.

In addition to the definitions in Chapter I, the following are defined for purposes of this chapter:

(a) Abandoned, when referring to a storage facility, means out of service and not safeguarded in compliance with this chapter.

(b) Facility means a building or buildings, appurtenant structures, and surrounding land area used by a single business entity at a single location or site.

(c) Hazard class means explosives, blasting agents, flammable liquids, combustible liquids, flammable solids, oxidizers, organic peroxides, corrosive materials, flammable gases, nonflammable gases, poisons, poison gases, irritating materials, etiologic agents, radioactive materials, and other regulated materials (ORM). For purposes of this chapter, the U.S. Department of Transportation (DOT) definitions in 49 CFR, Part 173, as amended, will be utilized; however, whenever the definitions in 49 CFR 173 refer to transportation or hazards associated with transportation, they will be deemed to refer to storage or other regulated activity under this chapter.

(d) Hazardous material means any material which is subject to regulation pursuant to Article 2 of this chapter. A mixture will be deemed to be a hazardous material if it either is a waste and contains any material regulated pursuant to Article 2 of this chapter, or is a nonwaste and contains one percent by volume or more of any material regulated pursuant to Article 2 of this chapter.

(e) Hazardous materials business plan means a document which meets the requirements of California Health and Safety Code § 25504, as amended, or if applicable, the notification made pursuant to Health and Safety Code § 25503.5(c)(6)(D), as amended.

(f) Officer means the employee assigned by the Director to administer this chapter or any designee of such employee.

(g) Permit means any hazardous materials storage permit issued pursuant to this chapter, as well as any additional approvals thereto.

(h) Permit quantity limit means the maximum amount of hazardous material that can be stored in a storage facility. Separate permit quantity limits will be set for each storage facility for which a permit is obtained in accordance with the requirements of this chapter.

(i) Pipes means pipeline systems which are used in connection with the storage of hazardous materials exclusively within the confines of a facility and which are not intended to transport hazardous materials in interstate or intrastate commerce or to transfer hazardous materials in bulk to or from a marine vessel.

(j) Primary containment means the first level of containment, i.e. the inside portion of that container which comes into immediate contact on its inner surface with the hazardous material being contained.

(k) Product-tight means impervious to the hazardous material which is contained, or is to be contained, so as to prevent the seepage of the hazardous material from the primary containment. To be product-tight, the container must be made of a material that is not subject to physical or chemical deterioration by the hazardous material being contained.

(l) Secondary containment means the level of containment external to and separate from the primary containment.

(m) Single-walled means construction with walls made of but one thickness of material. Laminated, coated or clad materials will be considered as single-walled.

(n) Storage facility means any one or combination of tanks, sumps, wet floors, waste-treatment facilities, pipes, vaults or other portable or fixed containers, used or designed to be used for the storage of hazardous materials at a facility.

(o) STP means standard temperature and pressure.

(p) Sump means a pit or well in which liquids collect.

(q) Unauthorized discharge means any release or emission of any hazardous material which does not conform to the provisions of this chapter, unless such release is in accordance with the release regulations of the Bay Area Air Quality Management District and California Air Resources Board, with a National Pollutant Discharge Elimination System permit, with waste discharge requirements established by the Regional Water Quality Control Board pursuant to the Porter Cologne Water Quality Act, or with local sewer pretreatment requirements for publicly owned treatment works. Controlling agencies may differ for different local jurisdictions.

(r) Wet floor means a floor which is used to routinely collect, contain or maintain standing liquids or to transmit standing liquids on a more or less continuous basis.

(Ord. No. NS-517.72, § 2, 4-15-03)

Secs. B11-274--B11-279. Reserved.

ARTICLE 2.
MATERIALS REGULATED

Sec. B11-280. Materials regulated.

The materials regulated by this chapter will consist of the following:

(a) Any material regulated by Chapter 6.5 of Division 20 of the California Health and Safety Code (Health and Safety Code § 25100 et seq.) or Division 4.5 of Title 22 of the California Code of Regulations, as amended, whether such material is stored or handled in waste or nonwaste form; or

(b) Any material which is listed on the list of Environmental Protection Agency (EPA) pollutants, 40 Code of Federal Regulations, Section 401.15, as amended; or

(c) Any material which is classified by the National Fire Protection Association (NFPA) as either a flammable liquid, a Class II combustible liquid or a Class IIIA combustible liquid; or

(d) Any material which is listed by the Director of the Department of Industrial Relations in Title 8, California Code of Regulations Section 339, as amended, excluding all footnotes thereto and subject to the exclusions specified in this subsection. The exclusions will apply only to materials which are not otherwise regulated pursuant to this section. These exclusions will be as follows:

(1) Materials recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them if such materials are intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals; hormones; enzymes; and aflatoxins;

(2) Aluminum salts; asphalt fumes; atrazine; benomyl; bis (dimethylthiocarbamoyl) disulfide; boron oxide; 4-tertbutyl-2-chlorophenyl-methyl methylphos-phoramidate; camphor; carbon black; 2-chlor-6 (trichloromethyl) pyridine; clopidol; coal tar pitch volatiles; cotton dust, dibenzoyl peroxide (benzoyl peroxide); dicyclopentadienyl iron; 3, 5-dinitro-o-toluamide; 2, 6-di-tert-butyl-p-cresol; ferbam, fumaric acid; glass, fibrous or dust; graphite; helium; iron oxide; iron salts; magnesium oxide; mica; mineral wool fiber; oil mist; phenothiazine; phenyl ether; phenyl ether-diphenyl (eutectic mixture), vapor; phthalic anhydride; m-phthalodinitrile; poyltetrasluoreo-ethylene decomposition products; rhodium salts; ronnel; rosin core solder; rotenone, commercial; silica; soapstone; talc; tantalum oxide; terphenyls; and 4, 4'-thiobis (6-tert-butyl-m-cresol); or

(e) Any material which has been determined to be hazardous based upon any appraisal or assessment by or on behalf of the party storing this material in compliance with the requirements of the EPA or the California Department of Health Services, or which should have been, but was not, determined to be hazardous due to the deliberate failure of the party storing the material to comply with the requirements of the EPA and/or the Department of Health Services; or

(f) Any material which has been determined by the party storing it, through testing or other objective means, to be likely to create a significant potential or actual hazard to public health, safety or welfare. This subsection will not establish a requirement to test for the purposes of this chapter.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-281. Exclusions.

This chapter does not apply to the following:

(a) Certain elemental metals. The following elemental metals included within the purview of Section B11-280 will not be considered hazardous materials for purposes of this chapter unless they are stored in a friable, powdered or finely divided state: aluminum, beryllium, cadmium, chromium, copper, lead, manganese, molybdenum, nickel, rhodium, silver, tellurium, tin and zinc. Furthermore, tantalum, titanium, tungsten and uranium will be excluded from regulation under this chapter.

(b) Retail products. Hazardous materials when contained solely in consumer products packaged for distribution to, and use by, the general public or commercial products used at the facility solely for janitorial or minor maintenance purposes such as paint thinner or wax strippers.

(c) Feed. Hazardous materials when contained in a substance intended for use as animal feed.

(d) Work station. Hazardous materials located at a work station in a quantity reasonably required for use as determined by the Director under the circumstances.

(e) Exemption. The Director will exempt any material from the requirements of this chapter where it has been demonstrated to the satisfaction of the Director that the material in the quantity and/or solution stored does not present a significant actual or potential hazard to the public health, safety or welfare.

(Ord. No. NS-517.72, § 2, 4-15-03)

Secs. B11-282--B11-284. Reserved.

ARTICLE 3.
CONTAINMENT STANDARDS

Sec. B11-285. Containment of hazardous materials.

No person may store any hazardous material regulated by this chapter until a permit or approval has been issued pursuant to this chapter. No permit or approval will be granted pursuant to this chapter unless the permit applicant demonstrates to the satisfaction of the Director, by the submission of appropriate plans and other information, that the design and construction of the storage facility will result in a suitable manner of storage for the hazardous material or materials to be contained therein.

All installation, construction, repair, modification, closure, or removal must be to the satisfaction of the Director. The Director has the discretion to exempt an applicant from any specific requirement, except with regard to underground storage facilities; or to impose reasonable additional or different requirements in order to better secure the purpose and general obligation of this chapter for protection of public health, safety and welfare.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-286. New storage facilities.

(a) Permit required. No person may construct or install any new storage facility until a permit or approval has been issued pursuant to this chapter.

(b) Monitoring capability. All new storage facilities intended for the storage of hazardous materials which are liquids or solids at standard temperature and pressure (STP) must be designed and constructed with a monitoring system capable of detecting that the hazardous material stored in the primary containment has entered the secondary containment. Visual inspection of the primary containment is the preferred method; however, other means of monitoring may be required by the Director. Where secondary containment may be subject to the intrusion of water, a means of monitoring and for safely removing such water must be provided.

Whenever monitoring devices are provided, they must, where applicable, be connected to attention-getting visual and/or audible alarms.

(c) Containment requirements. Primary and secondary levels of containment are required for all new storage facilities intended for the storage of hazardous materials which are liquids or solids at standard temperature and pressure (STP) unless exempted by the Director.

(1) All primary containment must be product-tight.

(2) Secondary containment.

a. All secondary containment must be constructed of materials of sufficient thickness, density and composition so as not to be structurally weakened as a result of contact with the discharged hazardous materials and so as to be capable of containing hazardous materials discharged from a primary container for a period of time equal to or longer than the maximum anticipated time sufficient to allow recovery of the discharged hazardous material.

b. In the case of an installation with one primary container, the secondary containment must be large enough to contain at least 110 percent of the volume of the primary container.

c. In the case of a storage facility with multiple primary containers, the secondary container must be large enough to contain 150 percent of the volume of the largest primary container placed in it, or ten percent of the aggregate internal volume of all primary containers in the storage facility, whichever is greater.

d. If the storage facility is open to rainfall, then the secondary containment must be able to additionally accommodate the volume of a 24-hour rainfall as determined by a 100-year storm history.

(3) Laminated, coated or clad materials are considered single-walled and must not be construed to fulfill the requirements of both primary and secondary containment.

(d) Overfill protection. Means of overfill protection may be required for any aboveground tank. This may be an overfill prevention device and/or an attention-getting high-level alarm.

(e) Separation of materials. Materials that in combination may cause a fire or explosion, or the production of a flammable, toxic or poisonous gas, or the deterioration of a primary or secondary container must be separated in both the primary and secondary containment so as to avoid potential intermixing.

(f) Drainage system. If water could enter into the secondary containment by precipitation or infiltration, the facility must provide a means of removing the water by the owner or operator. This removal system must 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. This removal system must also prevent uncontrolled removal of this water.

(g) Spill protection. A spill container to collect any hazardous material spilled during product delivery operations may be required at any aboveground tank fill point.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-287. Existing storage facilities.

Any storage facility in existence as of the effective date of this chapter [January 12, 1984], or any storage facility for which a building permit was issued prior to the effective date of this chapter, which does not meet the standards of Section B11-286, may be permitted pursuant to this chapter as long as it is providing suitable storage for hazardous materials. In addition, storage facilities which contain hazardous materials which are liquids or solids at standard temperature and pressure (STP) must be monitored in accordance with a plan approved by the Director as set forth herein with a monitoring system capable of detecting unauthorized releases.

(a) A monitoring plan for each such storage facility containing hazardous materials which are liquids or solids at STP must be submitted to the Department as part of the hazardous materials business plan or hazardous materials/waste registration form.

(b) Monitoring under such plan must include visual inspection of the primary containment wherever practical; however, if the visual inspection is not practical, an alternative method of monitoring each storage facility on a monthly or more frequent basis may be approved by the Director.

(c) Alternative method(s) of monitoring may include, but are not limited to, pressure testing, vacuum testing or hydrostatic testing of the piping systems; groundwater monitoring well(s) which are down-gradient and adjacent to the storage facility; vapor analysis within the well(s) where appropriate; and analysis of the soil boring(s) at the time of initial installation of the well(s). The location and number of well(s), depth of well(s) and sampling frequency must be approved by the Director.

(d) The continued use of, and permit approval for, existing storage facilities is subject to review and modification or termination by the Director whenever there has been any unauthorized discharge. It will also be reviewed by the Director each time the permit is renewed. In determining whether continued storage in such storage facility is suitable, the Director will consider the age of the storage facility, the methods of containment, the methods of monitoring, the feasibility of the required retrofit, the concentration of the hazardous materials contained, the severity of potential unauthorized discharge, and the suitability of other long-term preventive measures which meet the intent of this chapter.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-288. Out-of-service storage facilities.

(a) No storage facility may be abandoned.

(b) Storage facilities which are temporarily out of service, and are intended to be returned to use, must continue to be monitored and inspected.

(c) Any storage facility which is not being monitored and inspected in accordance with this chapter must be closed or removed in a manner approved by the Director in accordance with Section B11-325.

(d) Any person having an interest, including a leasehold interest, in real property and having reason to believe that an abandoned storage facility is located upon such property must make a reasonable effort to locate such storage facility within six months of the effective date of this chapter [January 12, 1984].

(e) Whenever an abandoned storage facility is located, a plan for the closing or removing or the upgrading and permitting of such storage facility must be filed within 90 days of its discovery. A closure plan must conform to the standards specified in Section B11-325.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-289. Monitoring.

(a) Monitoring methods. Monitoring methods must include at least one system for detecting leakage from the primary container. A monitoring system capable of detecting that the hazardous material stored in the primary containment has entered the secondary containment must be provided. Visual inspection of the primary containment is the preferred method; however, other means of monitoring may be required by the Director. Where secondary containment may be subject to the intrusion of water, a means of monitoring for such water must be provided. Whenever monitoring devices are provided, they must, where applicable, be connected to attention-getting visual and/or audible alarms.

(b) Monitoring, testing and inspection. Every permittee under this chapter must conduct testing, monitoring (if applicable), and inspections in compliance with the monitoring program component of the hazardous materials business plan or hazardous materials/waste registration form and must maintain records adequate to demonstrate compliance therewith.

(c) The permittee must conduct monthly inspections, at a minimum, of electronic monitoring system consoles (control panels) to ensure that they are in working order and must maintain records adequate to demonstrate compliance therewith.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-290. Maintenance, repair or replacement.

(a) The permittee must carry out maintenance, ordinary upkeep, and minor repairs in a careful and safe manner. No permit or other approval will be required for such maintenance and upkeep.

(b) Any substantial modification or repair of a storage facility other than minor repairs or emergency repairs must be in accordance with plans to be submitted to the Director and approved in accordance with Section B11-325 prior to the initiation of such work.

(c) The permittee may make emergency repairs to a storage 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, the permittee must seek approval pursuant to Section B11-325 by submitting drawings or other information adequate to describe the repairs to the Director.

(d) Replacement of any storage facility for hazardous materials, which are liquids or solids at STP, must be in accordance with the new installation standards of Section B11-286.

(e) All monitoring equipment and audible/visual overfill protection alarms used to satisfy the requirements of this article must be installed, calibrated, operated and maintained in accordance with manufacturer's instructions, and tested every 12 months by a qualified technician to confirm operability, proper operating condition, and proper calibration. Written records of such testing must be maintained as required in Section B11-313.

(f) Persons performing secondary containment testing of any underground storage tank system subject to Section 2637(a)(4) of Title 23 of the California Code of Regulations, as amended, must report test results using the State Water Resources Control Board's "Secondary Containment Testing Report Form" or an alternate format approved by the Director.

(g) The owner or operator of any underground storage tank subject to Section 2637(b) of Title 23 of the California Code of Regulations, as amended, must coordinate annual certification of underground storage tank monitoring equipment to coincide with the Department's annual compliance inspection. Notwithstanding Section 2637(b)(5), the UST owner or operator must notify the Director at least 14 calendar days prior to annual certification testing unless the notification requirement is waived by the Director.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-291. Handling.

(a) Dispensing and mixing of hazardous materials must not be done in such a manner as to substantially increase the risk of an unauthorized discharge.

(b) When hazardous materials are moved into or out of a storage facility, they may remain in the travel path only for the time reasonably necessary to transport the hazardous materials; and such movement must be in a manner which will not result in an unauthorized discharge.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-292. Secured facilities.

Access to the storage facilities must be secured by means of fences and/or locks. The access to the storage facilities must be kept securely locked when unattended.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-293. Emergency equipment.

Emergency equipment must be provided which is reasonable and appropriate for potential emergencies presented by the stored hazardous materials. Such equipment must be regularly tested and adequately maintained.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-294. Posting of emergency procedures.

Simplified emergency procedures must be posted conspicuously in locations where hazardous materials are stored.

(Ord. No. NS-517.72, § 2, 4-15-03)

Secs. B11-295--B11-299. Reserved.

ARTICLE 4.
HAZARDOUS MATERIALS DISCLOSURE

Sec. B11-300. Hazardous materials disclosure.

Each person subject to the requirements of this chapter must file a written plan, for approval by the Director, disclosing all hazardous materials regulated by this chapter which are stored or handled at that person's facility.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-301. Hazardous materials business plan.

A hazardous materials business plan (HMBP) must be submitted by any facility subject to the requirements of Chapter 6.95 of Division 20 of the California Health and Safety Code, as amended (Health and Safety Code § 25500 et seq.). The HMBP must be submitted unless the facility qualifies as a minimal storage site under Section B11-302, below. The HMBP must include the following:

(a) Facility description.

(1) General facility description. The HMBP must contain a map drawn at a legible scale and in a format and detail determined by the Director. It must show the location of all buildings and structures, chemical loading areas, parking lots, internal roads, and storm and sewer drains, and specify the uses of adjacent properties.

(2) Facility storage map.

a. The HMBP must contain a facility storage map at a legible scale for licensing and enforcement purposes. The information in this section is provided for purposes of ensuring the suitable and secure storage of hazardous materials and for the protection of emergency response personnel. The Director must take reasonable precautions to ensure the confidentiality of the information provided pursuant to this subsection.

The storage map must indicate the location of each hazardous materials storage facility, including all interior, exterior and underground storage facilities, and access to such storage facilities. In addition, the map must indicate the location of emergency equipment related to each storage facility and the general purpose of the other areas within each facility.

For each storage facility, the map must contain information as prescribed below; except that where the hazardous material being stored is a trade secret, it may be identified in a coded manner (together with its key) and not in a manner which would reveal trade secret information:

(i) A floor plan to scale;

(ii) For tanks, the capacity limit of each tank, and the hazardous material contained in each tank by chemical name or common/trade name.

b. The storage map must be updated whenever an additional approval is required for the facility or whenever the hazardous materials inventory is required to be amended.

(b) Hazardous materials inventory. The HMBP must include the following inventory information regarding hazardous materials stored or handled in quantities below HMBP reporting thresholds:

(1) For nonwaste materials, aggregate reporting by primary DOT (Department of Transportation) hazard class, maximum quantity onsite, largest container size, and storage location(s);

(2) For materials regulated under Chapter XIV of this division, reporting by primary DOT hazard class, chemical or common name, maximum quantity onsite, largest container size, and storage location(s); and

(3) For each hazardous waste, reporting by primary DOT hazard class, waste name, treatment/disposal method(s) (i.e., recycled onsite, treated onsite, or shipped offsite for recycling/treatment/disposal), maximum quantity onsite, annual quantity generated, and accumulation/storage location(s).

(c) Monitoring program. The HMBP must contain a description of the location, type, and manufacturer specifications (if applicable), of monitoring methods to be used in each storage facility storing hazardous materials which are liquids or solids at STP. It must also specify the frequency of inspections of storage facilities which will be conducted by the permittee.

(d) Record keeping forms. The HMBP must contain an inspection check sheet or log designed to be used in conjunction with routine inspections. The check sheet or log must provide for the recording of the date of inspection; description of any recordable unauthorized discharge; the date, time and description of any corrective action taken; and the name of the inspector.

(e) Variation in information.

(1) Additional information may be required for the HMBP where such information is reasonably necessary to meet the intent of this chapter.

(2) Whenever the permittee has submitted a plan which includes substantially the same information as is required for any component(s) of the HMBP to any other public agency regulating hazardous materials, such plan may be submitted to the Department in lieu of such component(s). The Director may give deference to any approval of such plan by the other public agency.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-302. Hazardous materials/waste registration form; minimal storage site.

(a) A facility may qualify as a minimal storage site if the quantity of each hazardous material stored in one or more storage facilities in an aggregate quantity for the facility is less than 500 pounds for solids, 55 gallons for liquids, or 200 cubic feet at STP for compressed gases, and the facility is not otherwise subject to the HMBP reporting requirements of Chapter 6.95 of Division 20 of the California Health and Safety Code, as amended (Health and Safety Code § 25500 et seq.).

(b) The applicant for a permit for a facility which qualifies as a minimal storage site may opt to file the hazardous materials/waste registration form in lieu of a HMBP. Such registration form must include the following components:

(1) General application information;

(2) A simple line drawing of the facility showing the location of all interior and exterior storage facilities;

(3) The following hazardous materials inventory information regarding hazardous materials stored or handled at the facility:

a. For nonwaste materials, aggregate reporting by primary DOT (Department of Transportation) hazard class, maximum quantity onsite, largest container size, and storage location(s); and

b. For materials regulated under Chapter XIV of this division, reporting by primary DOT hazard class, chemical or common name, maximum quantity onsite, and largest container size, and storage location(s); and

c. For each hazardous waste, reporting by primary DOT hazard class, waste name, treatment/disposal method(s) (i.e., recycled onsite, treated onsite, or shipped offsite for recycling/treatment/disposal), maximum quantity onsite, annual quantity generated, and accumulation/storage location(s).

(4) A written monitoring program demonstrating that the hazardous materials will be stored in a suitable manner and will be appropriately contained, separated and monitored;

(5) A signature by the facility owner/operator, with title and date, and a statement that the information submitted is true and correct to the best of their knowledge.

(Ord. No. NS-517.72, § 2, 4-15-03)

Secs. B11-303, B11-304. Reserved.

ARTICLE 5.
RESPONSIBILITIES

Sec. B11-305. Reporting unauthorized discharge.

(a) Liquids and solids at STP. As soon as any person in charge of a storage facility or responsible for emergency response for a facility has knowledge of any confirmed or unconfirmed unauthorized discharge of a hazardous material which is liquid or solid at STP, such person must take all necessary steps to ensure the discovery and containment and cleanup of such discharge and must notify the Director of the occurrence as required by this subsection.

(1) Confirmed unauthorized discharge.

a. Recordable unauthorized discharge. Any recordable unauthorized discharge must be contained and safely disposed of in an appropriate manner by the permittee, and such occurrence and the response thereto must be recorded in the facility's monitoring records. A recordable unauthorized discharge is any unauthorized discharge of a hazardous material which meets all of the following criteria:

(i) The discharge is from a primary containment to a secondary containment or to a rigid aboveground surface covering capable of containing the discharge until cleanup of the hazardous material is completed; and

(ii) The permittee is able to adequately clean up the discharge before it escapes from such secondary containment or such aboveground surface; but if the cleanup requires more than eight hours, it becomes a reportable discharge in accordance with Section B11-305(a)(1)b, below; and

(iii) There is no increase in the hazard of fire or explosion, nor is there any production of a flammable or poisonous gas, nor is there any deterioration of such secondary containment or such rigid above-ground surface.

An otherwise recordable unauthorized discharge does not need to be recorded if the discharge is not the result of the deterioration or failure of the primary container and the quantity discharged is less than one ounce by weight, and can be cleaned up within 15 minutes.

b. Reportable unauthorized discharge. Any unauthorized discharge which is not determined to be recordable under Subsection B11-305(a)(1)a, above, must be reported to the Director immediately. The reporting party must provide information to the Director relating to the ability of the permittee to contain and dispose of the hazardous material, the estimated time it will take to complete containment and disposal, and the degree of hazard created. The Director may verify that the hazardous material is being contained and appropriately disposed. The Director, at any time upon a determination that the permittee is not adequately containing and disposing of such hazardous material, has the power and authority to undertake and direct an emergency response in order to protect the public health and/or safety.

(2) Unconfirmed unauthorized discharge.

a. Indication of loss in inventory records. Whenever a material balance or other inventory record, employed as a monitoring technique indicates a loss of hazardous material, and no unauthorized discharge has been confirmed by other means, the permittee will have five working days to determine whether or not there has been an unauthorized discharge. If before the end of such period it is determined that there has been no unauthorized discharge, an entry explaining the occurrence must be made in the facility's monitoring records. Where the permittee has not been able, within such period, to determine that there has been no unauthorized discharge, an unauthorized discharge is deemed confirmed and the permittee must proceed in accordance with Subsection B11-305(a)(1)b, above.

b. Test results. Whenever any test results suggest a possible unauthorized discharge, and no unauthorized discharge has been confirmed by other means, the permittee will have five working days to retest. If second test results obtained within that period establish that there has been no unauthorized discharge, the results of both tests must be recorded in the facility's monitoring records. If it has not been established within such period that there has been no unauthorized discharge, an unauthorized discharge is deemed confirmed and the permittee must proceed in accordance with Subsection B11-305(a)(1)b, above.

(b) Gases at STP. Any person in charge of a storage facility or responsible for emergency response for a storage facility, who has knowledge of any unauthorized discharge of a hazardous material which is a gas at STP, must immediately report such discharge to the Director if such discharge presents a threat of imminent danger to public health and safety.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-306. Cleanup responsibility.

Any person responsible for storing the hazardous material must institute and complete all actions necessary to remedy the effects of any unauthorized discharge, whether sudden or gradual. The Director must undertake actions to remedy the effects of such unauthorized discharge only if he or she determines that it is reasonably necessary under the circumstances to do so. The responsible party will be liable to reimburse the County for all costs incurred by the County in remedying the effects of such unauthorized discharge, including the costs of fighting fires to the extent allowed by law. This responsibility is not conditioned upon evidence of willfulness or negligence of the party storing the hazardous material(s) in causing or allowing such discharge. Any responsible party who undertakes action to remedy the effects of unauthorized discharge(s) will not be barred by this chapter from seeking to recover appropriate costs and expenditures from other responsible parties except as provided by Section B11-307.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-307. Indemnification.

The permittee must indemnify, hold harmless and defend the County against any claim, cause of action, disability, loss, liability, damage, cost or expense, howsoever arising, which occurs by reason of an unauthorized discharge in connection with the permittee's operations under this permit, except as arises from the County's sole willful act or sole active negligence.

(Ord. No. NS-517.72, § 2, 4-15-03)

Secs. B11-308, B11-309. Reserved.

ARTICLE 6.
INSPECTIONS AND RECORDS

Sec. B11-310. Inspections by the Department.

The Department may conduct inspections, at the Director's discretion, for the purpose of ascertaining compliance with this chapter and causing to be corrected any conditions which would constitute any violation of this chapter or of any other statute, code, rule or regulation affecting the storage of hazardous materials.

Permittees are not required to disclose the identity of hazardous materials protected as trade secrets pursuant to California Health and Safety Code § 25511 to anyone other than the official designated for that purpose pursuant to California Health and Safety Code § 25511(d), except in the case of an emergency response or an unauthorized discharge related to the storage facility in which the trade secret material is contained. The permittee may put temporary coverings over the labels of trade secret materials during the course of Department inspections conducted by other than the Department official so designated.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-311. Inspections by permittee.

The permittee must conduct regular inspections of its own facilities to assure compliance with this chapter and must maintain logs or file reports in accordance with its hazardous materials management plan. The inspector conducting such inspections must be qualified to conduct such inspections.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-312. Special inspections.

In addition to the inspections specified above, the Director may require the periodic employment of special inspectors to conduct an audit or assessment of the permittee's facility to make a hazardous material safety evaluation and to determine compliance with the provisions of this chapter.

(a) The special inspector must be a qualified person or firm who must demonstrate expertise to the satisfaction of the Director.

(b) The special inspection report must include an evaluation of the facilities and recommendations consistent with the provisions of this chapter where appropriate. A copy of the report must be filed with the Director at the same time that it is submitted to the permittee.

(c) The permittee must, within 30 days of said report, file with the Director a plan to implement all recommendations, or must demonstrate to the satisfaction of the Director why such recommendations should not be implemented.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-313. Maintenance of records.

All records required by this chapter must be maintained by the permittee for a period of not less than three years. Said records must be made available to the Director during normal working hours and upon reasonable notice.

(Ord. No. NS-517.72, § 2, 4-15-03)

Secs. B11-314--B11-319. Reserved.

ARTICLE 7.
PERMITS

Sec. B11-320. Permits.

(a) Hazardous materials storage permit. Any person who stores any hazardous material must obtain and keep current a hazardous materials storage permit issued pursuant to this chapter.

(b) Additional approvals. A permit must be obtained prior to connecting, installing, constructing, substantially modifying, replacing, closing, or removing a hazardous materials storage or handling facility, tank system, or piping system; performing repairs as required in Section B11-290; or for any change or addition in hazardous materials stored which is not in accordance with a prior approval by the Director.

(c) Notwithstanding the above, the permittee will have 30 days to apply for an additional approval for the storing of a new or different hazardous material with the same hazard class as stated on the existing permit approvals where such storage does not increase the hazard of fire or explosion or the hazard of the production of flammable or poisonous gas. Storage of new or different hazardous materials, not meeting all of these criteria, will require the prior additional approval.

(d) Storage permits required in this chapter will be consolidated as a unified program facility permit as required by Section 15100, Title 27, California Code of Regulations.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-321. Application for permit.

Application for a new, amended or renewed hazardous materials storage permit or an additional approval must be made to the designated officer on the form(s) approved by the Director. In addition to the information required by such form(s), the applicant must submit a new or amended hazardous materials business plan or hazardous materials/waste registration form as required by Section B11-300 and construction plans, if any, in conformity with Section B11-285.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-322. Approval of permit.

A permit will not be approved until the issuing officer is satisfied that the storage conforms to the provisions of this chapter.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-323. Temporary storage permit.

A temporary hazardous materials storage permit may be issued where storage does not exceed six months and occurs no more frequently than every six months. The containment standards of Article 3, the hazardous materials management plan of Article 4 and the inspection and records requirements of Article 7 may be modified as appropriate under these circumstances for the storage of hazardous materials on a nonregular temporary basis.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-324. Issuance of permit.

Upon the approval of a permit by the officer and upon the payment of any applicable fee(s) as established by resolution of the Board of Supervisors, the officer will issue the permit to the applicant.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-325. Additional approvals.

When a request for additional approval is for closure of a storage facility or tank system, the permittee must apply for approval to close such facility or tank system not less than 30 days prior to the termination of storage of hazardous materials at the facility or in the tank system. Such closure must be in accordance with a closure plan which describes procedures for terminating the storage of hazardous materials in a manner that:

(a) Minimizes the need for further maintenance; and

(b) Controls to the extent that a threat to public health or safety or to the environment from residual hazardous materials is minimized or eliminated; and

(c) Demonstrates that hazardous materials that were stored in the storage facility or tank system will be removed, disposed of, neutralized or reused in an appropriate manner. This 30-day period may be waived by the Director if there are special circumstances requiring such waiver.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-326. Term.

A hazardous materials storage permit may be issued for a term of five years, excepting temporary permits which, notwithstanding Section B11-27, may be issued for no longer than six months.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-327. Renewal.

Every application for the renewal of a hazardous materials storage permit must be made at least 30 days prior to the expiration date of such permit. If a timely application for renewal has been submitted, the permit will remain in effect until the Director has made his or her determination pursuant to Section B11-328 and any administrative appeal pursuant to Chapter II has been exhausted.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-328. Determination.

The Director must make a determination with regard to any application for a permit, an additional approval, or a renewal, within 90 days from the date the application has been completed or compliance with the appropriate provisions of the California Environmental Quality Act (CEQA) has been completed, whichever occurs later. This time limit may be further extended by mutual agreement between the Director and the applicant.

(Ord. No. NS-517.72, § 2, 4-15-03)

Secs. B11-329--B11-334. Reserved.

ARTICLE 8.
REMEDIAL ACTION

Sec. B11-335. Grounds for remedial action.

A permittee may be subject to remedial action for any of the following causes, arising from the acts or omissions of the permittee, either before or after a permit is issued:

(a) Fraud, willful misrepresentation, or any willful inaccurate or false statement in applying for a new or renewed permit;

(b) Fraud, willful misrepresentation, or any willful inaccurate or false statement in any report required by this chapter;

(c) Failure to abate, correct or rectify any noncompliance within the time specified in the notice of noncompliance;

(d) Failure to correct conditions constituting an unreasonable risk of an unauthorized discharge of hazardous materials within a reasonable time after notice from a governmental entity other than the Department;

(e) Failure to abide by the remedial action imposed by the Director.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-336. Notice of noncompliance.

Unless the Director finds that an immediate suspension under Section B11-337 is necessary to protect the public health or safety from imminent danger, the officer will issue a notice of noncompliance:

(1) For failure to comply with the provisions of this chapter, any permit conditions or any provisions of the hazardous materials management plan; or

(2) Before instituting remedial action pursuant to Section B11-335(d).

Such notice must be sent by certified mail to the permittee. If the noncompliance is not abated, corrected or rectified within the time specified, remedial action may be taken.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-337. Suspension prior to hearing.

Whenever the Director finds that suspension of a permit prior to a hearing for remedial action is necessary to protect the public health or safety from imminent danger, the Director may immediately suspend any permit pending the hearing for remedial action. The Director will immediately notify the permittee of such suspension by having a written notice of the suspension personally served on the permittee. The permittee will have the opportunity for a preliminary hearing with regard to such prehearing suspension within three working days of receiving written notice of such suspension.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-338. Remedial action.

If the Director after the hearing finds that cause exists for remedial action, the Director will impose one or more of the following:

(a) A warning;

(b) An order to correct the particular noncompliance specified in the notice issued pursuant to Section B11-336;

(c) Suspension of the permit for the facility or for a storage facility for a specified period not to exceed six months;

(d) Modification or addition of conditions of the permit;

(e) Revocation of the permit with no reapplication permitted for a specified period not to exceed five years.

If the grounds for remedial action are based on Section B11-335(c) or (d) and if such grounds are limited to one storage facility, the remedial action taken will be limited to that storage facility.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-339. Transmittal of decision.

Within ten days of the hearing, the Director must render a written opinion, stating the findings upon which the decision is based and the action taken, if any. The decision of the Director will be the final administrative determination and is subject to judicial review.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-340. Authority after suspension, revocation or expiration.

The suspension, revocation or expiration of a permit issued under this chapter will not prevent any proceedings to investigate such permit, any remedial action against such permittee, or any proceeding against such permittee.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-341. Return of permit.

In the event a permit issued under the provisions of this chapter is suspended or revoked, the permittee must forward it to the issuing officer not later than the end of the third business day after notification of such suspension or revocation.

(Ord. No. NS-517.72, § 2, 4-15-03)

Secs. B11-342--B11-344. Reserved.

ARTICLE 9.
ENFORCEMENT

Sec. B11-345. Civil penalties.

In addition to the enforcement provisions in Chapter I of this division, the following civil penalties may apply.

Any person who intentionally or negligently violates any provision of this chapter, except that an unauthorized discharge which is recordable and recorded in compliance with Section B11-305 will not be a violation of this chapter for purposes of this section, or fails to comply with any order issued thereunder, will be liable for a civil penalty not to exceed $5,000.00 per day for each violation, which will be assessed and recovered in a civil action brought by the County Counsel or the District Attorney. In determining the penalty, the court will consider all relevant circumstances, including but not limited to the following:

(a) The extent of harm or potential harm caused by the violation;

(b) The nature and persistence of the violation;

(c) The length of time over which the violation occurred;

(d) The frequency of past violations;

(e) The permittee's record of maintenance;

(f) Corrective action, if any, taken by the permittee.

In any civil action brought pursuant hereto, in which the County prevails, the court will determine and impose reasonable expenses, including attorneys' fees, incurred by the County in the investigation and prosecution of the action.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-346. Civil action for retaliation.

A civil action may be instituted against any employer by any employee who has been discharged, demoted, suspended or in any other manner discriminated against in terms or conditions of employment or threatened with any such retaliation, because such employee has, in good faith, made any oral or written report or complaint related to the enforcement of this chapter to any company official, public official or union official, or has testified in any proceeding in any way related thereto. In addition to any actual damages which may be awarded, damages will include costs and attorneys' fees. The court may award punitive damages in a proper case.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-347. Penalty deposits.

Any administrative, civil and/or criminal penalties collected pursuant to this chapter will be deposited into the hazardous materials program account.

(Ord. No. NS-517.72, § 2, 4-15-03)

Secs. B11-348, B11-349. Reserved.

ARTICLE 10.
MISCELLANEOUS

Sec. B11-350. Disclaimer of liability.

(a) 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 unauthorized discharge of hazardous material. This chapter does not create liability on the part of the County, 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, storing, using, processing and disposing of hazardous materials within the County should be and are advised to determine to their own satisfaction the level of protection in addition to that required by this chapter necessary or desirable to ensure that there is no unauthorized discharge of hazardous materials.

(b) This chapter is not intended to create any different standard or obligation for the storage of carcinogens than is imposed for the storage of other hazardous materials. Hazardous materials are identified as carcinogens herein for public record purposes only, and the identification of a material as a carcinogen will not require a different or stricter application of the provisions of this chapter nor notice to any person under any circumstances other than those expressly specified in this chapter; nor will such identification create any other duty or obligation upon the County different from or additional to those duties or obligations applicable to the storage of other hazardous materials.

(Ord. No. NS-517.72, § 2, 4-15-03)

Sec. B11-351. Conflict with other laws.

Notwithstanding any other provision of this chapter:

(a) A storage facility regulated by any state or federal agency will be exempted from any conflicting provision of this chapter.

(b) If the storage facility is required to have a permit from the California Department of Health Services under Health and Safety Code § 25100 et seq., it will be exempted from any provision of this chapter which is covered by the regulations adopted under the above-cited statute.

(c) Whenever any provision of this chapter conflicts with the Uniform Fire Code as adopted by the County, the stricter will prevail.

(d) Whenever any provision of this chapter conflicts with any provision set forth in the California Health and Safety Code or any regulation adopted pursuant thereto, the stricter will prevail.

(Ord. No. NS-517.72, § 2, 4-15-03)

Secs. B11-352--B11-359. Reserved.

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