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HomeMy WebLinkAboutOrdinance 1733 (Certified Unified Program Agency [CUPA])CLERK'S CERTIFICATE I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, and Ex -officio Clerk of the Council of said City, do hereby certify that the foregoing Charter Ordinance No. 1733 entitled: "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL ADDING CHAPTER 4.20, `CERTIFIED UNIFIED PROGRAM AGENCY (CUPA)' TO THE SAN RAFAEL MUNICIPAL CODE, AND REPEALING CHAPTERS 4.12 AND 4.16 OF THE SAN RAFAEL MUNICIPAL CODE" was introduced at a REGULAR meeting of the City Council of the City of San Rafael, held on the 5th day of October. 1998, a Summary of Ordinance No. 1733 was published as required by City Charter in the MARIN INDEPENDENT JOURNAL. a newspaper published in the City of San Rafael, and passed and adopted as an Ordinance of said City at a REGULAR meeting of the City Council of said City held on the 19th day of October, 1998, by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None WITNESS my hand and the official seal of the City of San Rafael this 21st day of October. 1998 ��NEJE M. LEONCINI, City Clerk ORDINANCE NO. 1733 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL ADDING CHAPTER 4.20, "CERTIFIED UNIFIED PROGRAM AGENCY (CUPA)" TO THE SAN RAFAEL MUNICIPAL CODE, AND REPEALING CHAPTERS 4.12 AND 4.16 OF THE SAN RAFAEL MUNICIPAL CODE. THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: DIVISION 1: Chapter 4.20 is added to the San Rafael Municipal Code to read as follows: Section 4.20.010 -- Findings and Purpose. (A) The purpose of this chapter is to implement within the City of San Rafael all hazardous materials and hazardous waste programs covered under Health and Safety Code Section 25404, et seq., "Unified Hazardous Waste and Hazardous Material Management Regulatory Program." These programs include those programs described in subsection (C). (B) The San Rafael Fire Department is a Certified Unified Program Agency ("CUPA") and enforces the Hazardous Materials Management Plan requirements of the Uniform Fire Code, Health and Safety Code programs for Hazardous Materials Business Plans, Underground Storage Tank Sites, and the California Accidental Release Program. Additional programs in the Health and Safety Code to be undertaken by the CUPA include Hazardous Waste Control (Hazardous Waste Generator and On -Site Treatment of Hazardous Waste (authorized lower three tiers of the Tiered Permitting program)), and Aboveground Storage Tank - Spill Prevention, Control and Countermeasure Plan. The purpose of this chapter is to bring all hazardous material and hazardous waste regulatory authority and compliance requirements within one ordinance. (C) It is the intent of the City Council that the San Rafael Fire Department as the Certified Uniform Program Agency (CUPA) shall regulate and enforce all applicable provisions of law, and implementing regulations, including: (1) Hazardous Waste Control (including Hazardous Waste Generators and Hazardous Waste Onsite Treatment) - Health and Safety Code Section 25100, et seq. and California Code of Regulations ("CCR"), Title 22, Division 4.5. (2) Underground Storage of Hazardous Substances - Health and Safety Code Section 25280, et seq. and CCR, Title 23, Division 3. (3) Aboveground Storage of Petroleum - Health and Safety Code Section 25270, et seq. and the Uniform Fire Code ("UFC"). (4) Hazardous Materials Release Response Plans and Inventory - Health and Safety Code Section 25500, et seq. and CCR, Title 19. (5) Hazardous Materials Management Plan / Hazardous Materials Inventory Statement - Health and Safety Code Sections 13143, 13143.9, and 18935, et seq. and CCR, Title 24, Part 9, Section 8001.3.2 and 8001.3.3. (6) Accidental Release Prevention Program - Health and Safety Code Section 25531, et seq. and CCR, Title 19. (7) All other provisions of law enforceable by the CUPA, including any amendments to the statutes and regulations listed in (C)(1) through (C)(6). (8) All hazardous materials provisions contained within the UFC as adopted in the San Rafael Municipal Code. (9) Clean-up oversight of all contaminated sites pursuant to the Memorandum of Understanding between the Regional Water Quality Control Board, San Francisco Bay Region and the City of San Rafael, dated October 6, 1994. (D) It is the intent of the City Council, in order to protect public health and safety, to prohibit the storage and handling of regulated substances, in amounts greater than those specified in Sections 255320 and 1) of the Health and Safety Code, in areas other than those industrial districts designated herein, except for existing uses and amounts. (E) It is the intent of the City Council that the CUPA shall utilize all resources available to gain compliance with this Chapter, which may include but is not limited to civil, criminal and administrative actions and penalties. (F) It is the intent of the City Council that this chapter shall be no less stringent than state law. Section 4.20.020 -- Definitions. In addition to the definitions incorporated by reference from the laws and regulations listed in subsection 4.20.010(C), the following definitions shall apply to all CUPA program elements under this chapter: (A) "Business" means the entities listed in Health and Safety Code Sections 25501(d) and 25501.4. All buildings, appurtenant structures, and surrounding land used by a business are part of the business. 2 (B) "Certified Unified Program Agency" or "CUPA" means the San Rafael Fire Department. (C) "Chief' means the Fire Chief of the City of San Rafael Fire Department or the Fire Chief's authorized representative. (D) "Environment" means navigable waters, waters of zones contiguous to any navigable waters, streams, creeks, rivers, ponds, pools, lakes, surface waters, ground waters, drinking water supplies, land surface, land subsurface strata, and ambient air. (E) "Hazardous Material" or "Hazardous Waste" means any of the following: (1) Any material classified as a hazardous material or hazardous substance by any of the laws or regulations listed in subsection 4.20.010(C). (2) Any waste classified as a hazardous waste by any of the laws or regulations listed in subsection 4.20.010(C). (3) Any material or waste designated as hazardous for the purposes of this chapter by the Chief, upon a finding that the material or waste, 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. (F) "Permitted" means that a person has completed and submitted the necessary permit forms and documentation, paid appropriate fees and is in reasonable compliance with conditions of applicable program elements. (G) "Person" means a natural person, any partnership, firm, trust, business, company, limited liability company, corporation, any association, whether or not incorporated and whether or not formed for profit, and governmental entities. "Person" includes, but is not limited to, the City of San Rafael and any other city, any special district, any state and any department agency, instrumentality, or political subdivision of the State, intergovernmental bodies and agencies, and the United States and its agencies and instrumentalities, to the extent permitted by law. (H) "Uniform Fire Code" or "UFC" means the currently adopted Uniform Fire Code contained in San Rafael Municipal Code Chapter 4.08. (I) "Year" means calendar year beginning January 1 and ending December 31. (J) When terms are not defined they shall have their ordinarily accepted meanings within the context with which they are used. Webster's Third New International Dictionary of the English Language, unabridged, copyright 1981, shall be considered as providing ordinarily accepted meanings. 3 Section 4.20.030 -- Certified Unified Program Agency. The CUPA shall administer and enforce hazardous materials and hazardous waste laws and regulations pursuant to Section 4.20.010(C). Section 4.20.040 -- Certified Unified Program Agency Permit Required. Any person intending to do or perform any of the following activities shall first apply for, pay appropriate fees to and obtain a permit from the CUPA, unless otherwise exempted by a provision of law or regulation listed in subsection 4.20.010(C) or by subsection 4.20.060(D): (A) To store, dispense, use or handle hazardous material in excess of quantities specified in the UFC. (B) When a material is classified as having more than one hazard category, whether waste or non -waste, if the individual or aggregate quantity limits are exceeded in any category. (C) To install, repair, abandon, remove, place temporarily out of service, close or substantially modify a CUPA regulated facility or other area regulated by the Uniform Fire Code, except for routine maintenance thereon. (D) To close storage, use or handling facilities at least 30 days prior to the termination of the storage, use or handling of hazardous materials. Such application shall include any change or alteration of the facility closure plan filed pursuant to UFC and San Rafael Municipal Code Section 4.20.042. This 30 -day period may be waived by the Chief if there are special circumstances requiring such waiver. (E) To store, handle or use hazardous materials, or generate hazardous wastes, or operate underground tanks for storage of hazardous substances, either separately or in combination. (F) To treat hazardous waste on-site under either the permit -by rule tier, conditional authorized tier, or conditional exempt tier, unless such tiered permitting authority is under the jurisdiction of the California Department of Toxic Substances Control. (G) To construct, install, repair, modify, upgrade, temporarily close, remove or abandon in place any underground storage tank system or install, operate, repair or modify pipelines, equipment or facilities where flammable or combustible liquids are produced, processed, dispensed, stored, handled or used. Applicant, for the installation of a tank, shall complete and submit the full permit application consisting of a business plan; inventory statement; monitoring plan; emergency response plan; site plan; floor plan; State Forms; local permit and State surcharge fees. (H) To store, handle, transport, dispense, mix, blend or use flammable or combustible liquids in excess of quantities specified in the UFC. 4 (I) To install, construct, alter or operate tank vehicles, equipment, tanks, plants, terminals, wells, refineries and similar facilities where flammable and combustible liquids are produced, processed, transported, stored, dispensed or used. (J) To change the type of contents stored in a flammable or combustible liquid tank to a material other than that for which the tank was designed, constructed and permitted. (K) Any other activity, use, storage, or operation as may be deemed appropriate by the Chief may be included as part of the consolidated CUPA Permit issued to a person. (L) To install, construct, or destroy ground water monitoring wells associated with environmental monitoring, or to perform Phase I or H site assessments and/or to perform remedial action for clean-up of contamination. Plans for such work shall be submitted to the CUPA for review at least 14 days prior to the work being performed. For any of the activities identified in this Section, engineering calculations, installation plans, work plans and site safety and health plans may be required by the CUPA to be submitted for approval as part of the application for permit. A permit issued for the activities identified in subsections (C), (D) or (G) shall be valid for six months from the date of issuance. For any permit issued pursuant to other subsections, the date of expiration shall be determined by the CUPA at the time the permit is issued. Section 4.20.041 -- Application for a Certified Unified Program Agency Permit. (A) Application for a new, amended or renewed permit or an additional approval shall be made to the CUPA on a form provided by the CUPA. (B) A permit shall not be approved until the CUPA is satisfied that the person adequately conforms to the provisions of this chapter and other applicable laws and regulations. (C) The CUPA shall issue a permit to store, handle or use hazardous materials or hazardous wastes or treat hazardous waste on-site, or operate an underground or above ground storage tank system when the following have been met: (1) The permit application form as well as the Hazardous Materials Business Plan has been completed and submitted by the applicant, reviewed by the CUPA and found to be satisfactory. (2) For underground storage tanks at a place of business, forms provided by the CUPA must be completed and submitted by the applicant and reviewed by the CUPA and found to be satisfactory. (3) If hazardous wastes generated on site are being treated on-site and the person falls under the permit -by -rule, conditional authorized tier or conditional exempt tier, DTSC form 1772, or other approved form, must be completed and submitted by the applicant 5 and reviewed by the CUPA and found to be satisfactory, unless the tiered permitting authority is under the jurisdiction of the California Department of Toxic Substances Control. (4) The applicable fees, including the State surcharge, as referenced in Section 4.20.180 of this chapter, have been received by the CUPA. (5) It appears that the applicable hazardous materials and hazardous waste requirements and the requirements of this chapter will be met by the applicant. (D) A permit to store, handle or use a hazardous material or hazardous waste or to treat hazardous waste on-site, or to operate an underground or above ground storage tank system is not transferable to another person, business or physical location. (E) A permit issued pursuant to this chapter shall be posted or kept on file at the permitted place of business. A copy of the approved Hazardous Materials Business Plan shall be maintained at the place of business. Section 4.20.042 -- Permit Transfer. (A) Except as provided in Subsection (B), no person shall own or operate a hazardous materials storage facility unless a permit application for its operation has been submitted to the CUPA. Any person who is to assume the ownership of a hazardous materials storage facility from the previous owner shall complete an approved form accepting the obligations of the permit and submit the completed form to the CUPA within thirty (30) days after ownership is transferred. The CUPA may review and modify or terminate the transfer of the permit to operate the premises, pursuant to the criteria specified in this chapter. (B) Any person assuming ownership of a hazardous materials storage facility for which a valid operating permit has been issued shall have thirty (30) days after the date of assumption of ownership to apply for an operating permit pursuant to this chapter or, if accepting a transferred permit, shall submit to the CUPA the completed form accepting the obligations of the transferred permit as specified in Subdivision (A). During the period from the date of application until the permit is issued or refused, the person shall not be held in violation of this section. Section 4.20.043 -- Hazardous Materials Permit to Cease Operation. No person shall permanently remove a hazardous materials storage premises from service without first obtaining a permit to cease operation from the CUPA. The owner shall provide a completed application which shall include, but may not be limited to, the age, type, location, substance(s) stored, and the condition of the substances stored and the condition of the storage facilities, with the required fee. The method of ceasing operation shall be in compliance with State law and regulations of this chapter. A field inspection of the ceasing procedure is required to be performed by the CUPA. Additional inspections may be required depending on the condition of the storage system, whether soil or ground water contamination is suspected, and the method of destruction of any storage tanks. A ceasing operation permit shall be valid for no 6 longer than one year from the date of issue. Where appropriate, a permit issued under Section 4.20.040 satisfies the requirements of this Section. Section 4.20.044 -- Permit Suspension. Whenever the CUPA finds that the suspension of a permit prior to a hearing for regulatory action is necessary to protect the health or safety from an immediate threat to public health or safety, the CUPA may immediately suspend any permit. The CUPA shall immediately notify the permittee or designated 24-hour contact person of such suspension by any of the following methods: (1) written notice of suspension sent by certified mail, return receipt requested to the owner or operator of the facility and to the persons shown on the latest equalized County tax roll to be the owners of the real property on which the facility is located; (2) personal delivery of written notice of suspension served upon an owner or operator of the facility; (3) posting notice of suspension on the property and thereafter mailing a copy of the notice by first class mail, postage pre -paid to the persons shown on the latest equalized County tax roll to be the owners of the real property. Service by mail is deemed complete at the time of mailing. Section 4.20.050 -- Underground Tank Closure or Removal. A CUPA Hazardous Materials Closure Permit is required prior to temporary and/or permanent closure or removal of an underground tank or change in an underground tank's permitted use. Such temporary or permanent closure or removal shall be performed in accordance with the UFC, Title 23 of CCR, Health and Safety Code Section 25280 et seq., and Fire Department Standards promulgated by the Chief, and the following: (A) At least 30 days before beginning either permanent closure or a change -in-service under subsections (B) and (C) of this Section, or within another reasonable time period determined by the CUPA, owners and operators must notify the CUPA of their intent to permanently close or to make the change -in-service. If such action is in response to an emergency corrective action, notification to the CUPA shall be made at the time such release is discovered but in no case longer than 72 hours. (B) To permanently close a tank, owners and operators must empty and clean it by removing all liquids and accumulated sludges. All tanks taken out of service permanently must also be removed from the ground or, upon special approval from the CUPA, filled with an inert solid material in a manner consistent with Title 23 of CCR, Division 3, Chapter 16, Article 7 and Fire Department Standards. (C) Continued use of an underground storage tank system to store a non-regulated substance is considered a change -in-service. Before a change -in-service, owners and operators must empty and clean the tank by removing all liquid and accumulated sludge and conduct a site assessment. (D) Before permanent closure or a change -in-service is completed, owners and operators must measure for the presence of a release where contamination is most likely to be present at the underground storage tank site. In selecting sample types, sample locations, and 7 measurement methods, owners and operators must consider the method of closure, the nature of the stored substance, the type of backfill, the depth to ground water, and other factors appropriate for identifying the presence of a release. (E) If contaminated soils, contaminated ground water, or free product as a liquid or vapor is discovered under subsection (A) of this Section, or by any other manner, owners and operators must begin corrective action in a manner prescribed by Title 23 of CCR, and Fire Department Standards. (F) Owners and operators must maintain records demonstrating compliance with closure requirements under this regulation. The results of the closure assessment must be maintained for at least 3 years after completion of permanent closure or change -in-service in one of the following ways: (1) By the owners and operators who took the underground storage tank system out of service. (2) By the current owners and operators of the underground storage tank system site. (G) Where appropriate, a permit issued under Section 4.20.040 satisfies the requirements of this Section. Section 4.20.060 -- Hazardous Materials Release Response Plans and Inventory (Business Plan). (A) Any person who stores, handles or uses a hazardous material shall annually, or more frequently, submit a completed Business Plan as directed by the CUPA. If at the time of annual submittal there have been no changes in the types or quantities of Hazardous Materials stored, handled or used, the submittal may be in the form of a certification page to that effect. (B) An amendment to the Business Plan shall be filed within thirty (30) days of any of the following changes to the Business Plan: (1) A change in the quantity of a previously reported hazardous material that exceeds an increase or decrease of twenty-five (25) percent or more of a hazardous material. material. of this chapter. chapter. (2) The storage, handling or use of a previously undisclosed hazardous (3) Changes in any elements of the Business Plan required in Section 4.20.070 (4) Additional reporting requirements as specified in Section 4.20.080 of this 8 (C) The amendment to the Business Plan required by subsection (B) shall contain only new information or information about a specific change and shall not require the resubmittal of an entire Business Plan. (D) Any person engaged exclusively in the following types of operation shall be exempt from the permit process. A disclosure form may be required for record-keeping purposes or baseline declaration of hazardous materials storage as determined by the CUPA. (1) Hazardous materials contained solely in a consumer product for direct distribution to, and use by, the general public is exempt from the Business Plan requirements unless the CUPA has found, and has provided notice to the person handling the product, that the handling of certain quantities of the product requires the submission of a Business Plan, or any portion thereof, in response to public health, safety, or environmental concerns. (2) Oxygen and nitrous oxide, ordinarily maintained by a physician, dentist, podiatrist, veterinarian, or pharmacist, at his or her office or place or business, stored at each office or place of business in quantities of not more than 1,000 aggregate cubic feet at standard temperature and pressure of each hazardous material. (3) Inert compressed gases stored in quantities of not more than 6,000 cubic feet at standard temperature and pressure. (4) Compressed propane gas used solely for cooking, water heating and space heating in quantities of not more than 125 gallons at standard temperature and pressure. (5) Flammable liquids stored in approved safety containers in aggregate quantities of 5 gallons or less. Combustible Liquids 25 gallons or less, aggregate. (E) When determined by the CUPA, Wholesale and Retail occupancies that store amounts of hazardous materials in consumer packaging for direct sale to the general public may be exempt from completing some portions of a Business Plan, as determined by the Chief, under the following conditions: (1) Packages are not opened, used, mixed, or otherwise disturbed. (2) The individual containers of nonflammable hazardous materials do not exceed 5 gallons or 100 pounds. (3) The aggregate amounts of flammable and combustible liquids do not exceed exempted amounts listed in UFC. (4) All consumer packaging is on the sales floor and not warehoused. (F) The CUPA finds that exemptions set forth in subsection (D) are appropriate because the hazardous materials and quantities exempted do not pose a present threat to human health or the environment, considering their intended use and chemical properties. Section 4.20.070 -- Contents of Hazardous Materials Business Plans. (A) The Hazardous Materials Business Plan shall include all elements of the San Rafael Hazardous Materials Inventory Statement or the California State Hazardous Material Inventory Form as specified in CCR, Title 19, Section 2620, et seq. (B) The Hazardous Materials Business Plan shall also include: (1) Material Safety Data Sheets (MSDS) for each hazardous material. However, MSDS to be submitted to the CUPA will be specified by the CUPA after review of the Business Plan Inventory Statement. (2) Names, addresses and emergency (non -business) telephone numbers of three persons capable of assisting the CUPA during an emergency, one of whom shall be designated as the primary emergency contact person. (3) A detailed site diagram drawn to scale on forms provided by the CUPA showing the general land use within 500 feet of all property lines and the location of wells, storm and sewer drains, open bodies of water, drainage canals, flood plains, and such other information as may be required by the Chief. (4) Methods of protection of outside storage areas from the weather. (5) Total tonnage of hazardous waste generated per year and, if applicable, treated on-site, separated according to waste stream. (6) Other information as may be required by the CUPA. (7) A certification of the accuracy of submitted information. (C) The Hazardous Materials Business Plan shall be submitted on the forms designed by the CUPA and completed by the person. (D) Requirements for certain information in the Business Plan may be waived by the CUPA when such information is not reasonably necessary to meet the intent of this chapter. Section 4.20.080 -- Additional Reporting. (A) If required by law, or by the CUPA upon review of the Business Plan, a schedule and written inspection procedures for inspecting each hazardous materials or hazardous waste storage facility and its related monitoring, safety, and emergency equipment, security devices, operating and structural equipment for malfunctions and deterioration, operator's errors, poor housekeeping practices, and unauthorized discharges of hazardous materials shall be submitted to the CUPA. These inspections must be scheduled and conducted by the person at appropriate frequencies either required by law or approved by the CUPA and must be recorded in an 10 authorized check sheet or log to be maintained by the person on-site for three (3) years from the date of inspection. (B) Additional reporting may be required pursuant to Health and Safety Code Section 25531, et seq. regarding acutely hazardous materials, or other provisions of state law. (C) Additional reporting may be required by the United States Environmental Protection Agency. (D) Any additional information required under this Section shall be subject to the provisions of Section 4.20.130 of this chapter. Section 4.20.090 -- Regulated Substances. (A) A person that handles or proposes to handle regulated substances (as defined in Health and Safety Code Section 25532(g), Title 19 of the CCR, Section 2770.5) in amounts specified in Sections 255320 and 1) of the Health and Safety Code shall submit a permit application to the CUPA using a form provided by the CUPA. The completed Regulated Substances Registration Form shall include, but not be limited to, the information required by Health and Safety Code Section 25533. For persons proposing to handle regulated substances, the permit application shall be submitted prior to the regulated substance first being present. (B) The storage and handling of regulated substances, in amounts greater than those specified in Sections 255320 and 1) of the Health and Safety Code, is prohibited in all districts of the city, except such storage and handling is permitted in the following districts as defined in Title 14 of the municipal code: (1) Districts designated as I, LI/O or CCl/O; (2) Districts designated as PD providing that they are industrial use in nature. Exception: Persons storing and handling regulated substances, prior to the adoption of this Chapter, shall be able to continue their existing use and quantities and shall be able to relocate their facilities with the express permission of the Chief and the City Council. Section 4.20.100 -- California Accidental Release Program. (A) A person that the CUPA determines to represent a significant likelihood of risk, pursuant to Health and Safety Code Section 25534, shall prepare and submit to the CUPA a Risk Management Plan (RMP). The RMP shall be prepared as prescribed in the Health and Safety Code Section 25500, et seq., Title 40, Code of Federal Regulations, Part 68 and any guidance documents adopted by the CUPA. (B) A person who proposes to use regulated substances per Section 4.20.090 shall not begin use until a determination is made by the CUPA whether an RMP is required. If the CUPA 11 determines that an RMP is required it shall be submitted prior to the regulated substance first being present. Section 4.20.110 -- Underground Storage Tanks. (A) It shall be unlawful for any person to construct, install, modify, repair, upgrade, maintain, temporarily close, remove or abandon in place any underground storage tank, any associated piping or any monitoring methods without first obtaining a CUPA permit and approval from the CUPA. Permits are non -transferable and may be revoked for failure to conform to the requirements of this chapter. (B) The owner or operator shall complete an application for a permit to perform any of the activities described in subsection (A). The application shall include, but may not be limited to the information required on the application form for a permit to operate an underground storage tank system pursuant to Health and Safety Code sections 25291 or 25292. Construction drawings or plans shall be submitted to verify that the installation, upgrade, repair or change will comply with the Health and Safety Code sections 25291 or 25292 and CCR, Title 23, Division 3, Chapter 16, Article 3. Any upgrade or changes to the tank system must meet the minimum requirements of state law and federal law. (C) A permit to temporarily close, permanently close, abandon in place or remove an underground storage tank system or piping shall be obtained before the actual work is performed. An underground tank closure form shall include assurance that applicable closure requirements as set forth in Title 23 of CCR, Division 3, Chapter 16, Article 7, and Fire Department Standards will be met. (D) If there is a release or suspected release from any underground storage tank system, a person shall complete a written report pursuant to Title 23 of CCR, Division 3, Chapter 16, Article 5, Section 2652, submit it to the CUPA and notify the San Francisco Bay Regional Water Quality Control Board. Section 4.20.120 -- Hazardous Waste Generators and On -Site Treatment. (A) A person that generates hazardous waste shall complete a Hazardous Materials Business Plan and CUPA permit application. The person shall be subject to the requirements of Health and Safety Code Section 25100, et seq., Title 22 CCR, Division 4.5. (B) A person that is regulated under the permit -by -rule, conditional authorized or conditional exempt tier of Health and Safety Code Section 25100, et seq. shall be required to complete a CUPA permit application as well as DTSC form 1772 or other approved form. The person shall be subject to the requirements of Health and Safety Code Section 25100, et seq. and CCR, Title 22, Division 4.5. 12 Section 4.20.130 -- Administrative Procedures; Public Inspection of Records. In addition to the provisions for Public Inspection contained in Health and Safety Code Section 25500, et seq., the following shall apply: (A) Persons requesting information from any file containing a disclosure form/permit or other public records filed under this chapter shall complete an application for the release of information. This application shall require the person to disclose: (1) The name, address, and telephone number of the person, and/or Agency requesting the information, and (2) The subject or description and address of files to be examined or requested to be copied. (B) The CUPA shall review the request to determine whether any of the materials requested are exempt from disclosure under the provisions of Section 6254 of the California Government Code, Section 1060 of the Evidence Code, or of Section 4.20.140 of this chapter. (C) If the request for information is pursuant to an ongoing investigation by a government agency, the requesting agency may request that the person not be notified of the request. If the person has claimed trade secret protection for any of the information requested, the provisions of Section 4.20.140 shall apply to such information. A copy of each application for release of information shall be retained in each file requested to be viewed or copied, and shall become a public record subject to later disclosure. Section 4.20.140 -- Trade Secrets and Confidential or Secret Information. The disclosure of trade secrets, or confidential information or information certified by an appropriate official of the United States as necessary to be kept secret for national defense purposes shall be governed by Health and Safety Code sections 25511 and 25538 and other applicable law. Section 4.20.150 -- Closure Work Plan and Closure Report. (A) Any person, which has previously been required to submit a Hazardous Material Business Plan, shall obtain a permit and submit a closure work plan to the CUPA at least 30 days prior to the closure, relocation, sale or exchange of the business and/or the real property on which the business is located. The closure work plan shall be approved by the CUPA before the removal of hazardous or potentially hazardous materials or hazardous wastes from property prior to implementation. (B) The closure work plan shall describe procedures for terminating the storage of hazardous materials and/or hazardous wastes in each storage facility in a manner that: (1) Eliminates or minimizes the need for further maintenance. 13 (2) Eliminates or minimizes any threat to public health, safety and the environment from residual hazardous materials or hazardous wastes in the facility. (3) Demonstrates that the hazardous materials and/or hazardous wastes that were stored in the facility will be removed, disposed, neutralized, or reused in an appropriate (C) If underground storage tanks are also being closed, a separate tank closure permit must be obtained from the CUPA and must be referenced in the overall closure plan. (D) The closure work plan shall include: (1) A completed Closure Form provided by the CUPA. (2) A current inventory statement, and site maps. The Business Plan may be used to satisfy this requirement. (3) A description of the work to be performed to properly clean, inspect, sample and close the facility. Sampling shall include provisions for independent, third party analysis conducted by a professional geologist, civil engineer, engineering geologist, chemical engineer, laboratory registered or certified by the State of California, or other such professional as accepted by the CUPA, at the expense of the business owner. (4) A description of disposal/handling methods for all hazardous materials and hazardous wastes. (E) A closure report must be submitted to the CUPA within 30 days of completion of work outlined in the closure work plan. The closure report shall document: (1) A description of the actions actually taken to close the facility. (2) Manifests or other documents detailing the removal, disposal, or neutralization of the hazardous materials and/or hazardous wastes. (3) Sampling results and interpretation of the results. (4) Clean-up levels for soils and groundwater affected by an unauthorized release must be based on a risk assessment or another approved method. The person must recommend target cleanup levels for long-term corrective action to the CUPA for approval. The person must demonstrate to the CUPA that any proposed corrective action will achieve current cleanup goals and will not produce any further degradation to the environment. (F) If any business closes or relocates without submitting and implementing a closure plan, in addition to any administrative, civil or criminal penalties, the property owner shall be 14 required to prepare and implement a closure plan prior to reoccupying the site in any manner, either by owner or any other tenant. (G) The CUPA may require a bond or other financial instrument to secure the performance of the work plan. Section 4.20.160 -- Release of Hazardous Materials and/or Deleterious Materials. Hazardous materials and/or deleterious materials shall not be abandoned, buried or released into any sewer, storm drain, ditch drainage canal, lake, river, tidal waterway or in or upon any building, premises, ground, sidewalk, street, highway, alley or into the atmosphere. Exceptions: (1) Materials intended for use in weed abatement, erosion control, soil amendment or similar applications when applied in accordance with the manufacturer's instructions or nationally recognized practices. (2) Materials released in accordance with federal, state or local governing regulations or permits of the jurisdictional Air Quality Management Board, with a National Pollutant Discharge Elimination System Permit, with waste discharge requirements established by the jurisdictional Water Quality Control Board, or with local sewer pretreatment requirements for Publicly Owned Treatment Works. Section 4.20.170 -- Response to Threatened or Actual Releases. (A) If a threatened, or actual release of a hazardous material or hazardous waste occurs in the absence of a business or property owner or other responsible or potentially responsible party, the Chief shall make a reasonable attempt to contact the business and/or property owner where the threatened or actual release has occurred and shall require the immediate mitigation of the hazard. (B) If there is no response or no contact is made with a business or property owner within a reasonable time frame, the Chief shall take mitigating action which may include, but is not limited to hazard removal or relocation, clean-up, site evaluation, soil testing, and/or chemical analysis. (C) Any person with an ownership interest in the business or property on or in which the threatened or actual release occurred shall pay the cost of responding to any threatened, or actual release of any hazardous material and all damages and expenses incurred by any public agency having jurisdiction or any public agency assisting the agency having jurisdiction. Expenses shall include, but not be limited to, equipment and personnel and any payments to outside business firms. 15 Section 4.20.180 -- Inspections. The CUPA may make periodic inspections of persons or businesses where hazardous materials and/or hazardous waste is generated, stored, handled, disposed, treated or recycled, and may inspect aboveground and underground storage tank systems and all persons where the CUPA has reasonable cause to believe that hazardous materials or hazardous waste is generated, stored, handled, disposed, treated, or recycled. Inspections may be made without prior notice to the owner or operator of such business. Section 4.20.190 -- Fees. The City Council shall establish fees for CUPA permits and for reviewing other CUPA activities and shall include the State surcharge in the fees. Failure to pay such fees shall be grounds for suspension or revocation of a CUPA permit pursuant to Section 4.20.200(B). Section 4.20.200 -- Denial, Suspension or Revocation of Permit. (A) Any application to operate, construct, install, upgrade, repair, modify or temporarily or permanently close a hazardous materials or hazardous waste facility, underground storage tank system or above ground storage tank may be denied if it does not conform with applicable laws, regulations and this chapter. (B) Any permit issued pursuant to this chapter may be suspended or revoked for cause. Cause shall be any violation of this chapter or any violation of the provisions of laws or regulations listed in subsection 4.20.010(C). (C) The suspension or revocation of a permit issued pursuant to this chapter, shall not preclude the imposition of any other penalty prescribed by this chapter or the prosecution of any violation of this chapter. Section 4.20.210 -- Enforcement -Authority. The CUPA is authorized to enforce all provisions of this chapter, by the issuance of notices and orders and the use of other available legal remedies, and to inspect all activities which are regulated in this chapter for the purpose of determining compliance with this chapter. No person shall obstruct or interfere with the CUPA inspector in the performance of these duties. The CUPA may issue criminal citations for violations of this chapter, and also may pursue the remedies for such violations contained in San Rafael Municipal Code Chapters 1.42, 1.44, and 1.46. Section 4.20.220 -- Violation - Civil and Criminal Penalties. (A) The City Attorney or the District Attorney may seek an order enjoining any acts or practices that constitute or threaten to constitute a violation of this chapter and for the reasonable costs of the CUPA in investigating and prosecuting the enforcement action. 16 (B) Any person that violates sections 4.20.060, 4.20.070, or 4.20.080 shall be subject to a civil penalty in an amount not to exceed two thousand dollars ($2,000) for each day in which the violation occurs. Violation of sections 4.20.060, 4.20.070, or 4.20.080 by a person, after notice of the violation has been given by the CUPA, shall be subject to a civil penalty not to exceed five thousand dollars ($5,000) for each day the violation occurs. If the violation results in, or significantly contributes to an emergency, including but not limited to a sudden release, explosion or fire, the person shall also pay the full cost of the emergency response by the CUPA, including the cost of clean up and disposal of the hazardous materials or hazardous wastes. (C) Any person that violates sections 4.20.090 or 4.20.100 shall be subject to a civil penalty in an amount not to exceed two thousand dollars ($2,000) for each day in which the violation occurs. In the case of knowing violations of sections 4.20.090 or 4.20.100 after reasonable notice of the violation has been given by the CUPA, the civil penalty shall not exceed twenty five thousand dollars ($25,000) for each day in which the violation exists. In addition, in cases of knowing violations, the responsible person may, upon conviction, also be punished by imprisonment in the County jail for not more than one year pursuant to Health and Safety Code Section 25540. (D) Any person that violates Section 4.20.110 shall be subject to a civil penalty in an amount of not less than five hundred dollars ($500) and not to exceed five thousand dollars ($5,000) for each underground storage tank for each day in which the violation occurs. (E) In determining the amount of civil penalty to be imposed, consideration shall be given to all of the relevant circumstances, including but not limited to, the extent of the 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 responsible for any activity subject to a permit. (F) Each day on which a violation exists or continues to exist shall be deemed a separate violation. (G) The civil and criminal penalties authorized by this Section are in addition to the civil and criminal penalties provided by Sections 1.42.010, and 1.42.020, and the remedies authorized in Chapters 1.42, 1.44, and 1.46, which shall apply to all violations of this chapter. Section 4.20.230 -- Administrative Civil Penalties. This section is intended to implement the provisions of Health and Safety Code Section 25514.5. (A) Any person that fails to comply with sections 4.20.060, 4.20.070, or 4.20.080 shall be subject to an administrative civil penalty in an amount not to exceed two thousand dollars ($2,000) for each day in which the violation occurs. Violation of sections 4.20.060, 4.20.070, or 4.20.080, after notice of the violation has been given by the CUPA, shall be subject to an administrative civil penalty not to exceed five thousand dollars ($5,000) for each day the violation occurs. If the violation results in, or significantly contributes to an emergency, including but not limited to a fire or health or medical emergency requiring toxicological, health, or medical consultation, the person shall also pay the full costs of the emergency response by the 17 CUPA, county, city, local emergency medical services agency, or poison control center, including the cost of clean up and disposal of the hazardous materials, acutely hazardous materials or hazardous wastes. (B) Any person who fails to comply with a written notice or order issued by the CUPA pursuant to this chapter shall also be subject to an administrative civil penalty. If the violation results in, or significantly contributes to an emergency, including but not limited to a fire or health or medical problem requiring toxicological, health, or medical consultation, the person shall also pay the full costs of the emergency response by the CUPA, county, city, local emergency medical services agency or poison control center, as well as the cost of cleaning up and disposing of the hazardous materials or acutely hazardous materials. (C) A person shall not be subject to both an administrative civil penalty and a civil penalty pursuant to Section 4.20.210 for the same violation on the same date. However, a person may be subject to both an administrative civil penalty and criminal prosecution based on the same violation or violations. (D) In determining the amount of the administrative civil penalty to be imposed pursuant to Section 4.20.240, the CUPA shall consider the extent of harm caused by the violation, the nature and persistence of the violation, the length of time over which the violation occurred, the frequency of past violations, any action taken by the person to mitigate the violation, and the financial burden that the administrative civil penalty would impose on the person. (E) Payment of an administrative civil penalty shall not relieve a person from the responsibility for correcting any violation of this chapter, or state law, or from complying with a written notice or order issued by the CUPA, or from taking other corrective action necessary to comply with this chapter. (F) This section shall supplement any other available legal remedies, including the remedies under Chapter 1.46 of the San Rafael Municipal Code. Section 4.20.240 -- Administrative Complaint and Administrative Civil Penalty Hearing Procedure. This Section is intended to implement the provisions of Health and Safety Code Section 25514.6. The CUPA shall comply with the following procedures in imposing an administrative civil penalty under Section 4.20.230: (A) The CUPA may issue a written administrative complaint to any person subject to an administrative civil penalty under Section 4.20.230. The complaint shall allege the acts or failures to act that are the basis for the administrative civil penalty and the proposed amount of the administrative civil penalty. The complaint shall be served on the person by personal service or certified mail, and shall inform the person being served that a hearing shall be conducted by no later than sixty (60) days after service of the complaint, unless the person waives the right to a hearing on the proposed penalty. The person shall request a hearing by written notice to the 18 CUPA within ten (10) days after the service of the complaint. The written request for hearing shall be served on the CUPA in person or by first class mail. Failure by any person to respond within ten (10) days shall be deemed as a waiver of right to a hearing. (B) If the person served with the complaint waives the right to a hearing, the CUPA shall issue an order requiring the person to pay the administrative civil penalty in the amount specified in the complaint, unless the person and the CUPA have entered into a settlement agreement, in which case the person shall pay the amount specified in the settlement agreement. (C) The hearing on the proposed administrative civil penalty shall be heard by the Chief or a hearing officer designated by the Chief. (D) At the hearing, a representative of the CUPA shall set forth the facts which justify the penalty, the applicable provisions of the ordinance, state law, or CUPA orders or notices that have been violated, and the factors relied upon by the CUPA in setting the amount of the proposed penalty. (E) The person may appear in person or by agent or legal counsel and may present information relevant to the charges or the proposed penalty. (F) In conducting the hearing, the Hearing Officer shall receive information, evidence, and testimony relevant to the alleged violation and the penalty to be imposed. The formal rules of evidence shall not apply, but evidence presented shall be of the type which responsible persons are accustomed to rely on in the conduct of serious affairs. (G) If the Hearing Officer determines that an administrative civil penalty is justified, the Hearing Officer shall consider all of the relevant circumstances in setting the amount of the penalty, including but not limited to the extent of the harm or potential harm caused by the violation, the nature of the violation(s) and the period of time over which it occurred, the frequency of past violations, and the corrective action, if any, taken by the person that holds the permit. (H) The Hearing Officer shall issue its decision in writing no later than thirty (30) days after the hearing. The written decision of the Hearing Officer shall include findings which explain the basis for imposition of the administrative civil penalty and the amount of the penalty and an order for payment of the penalty within thirty (30) days. Copies of the order shall be served by personal service or certified mail upon the person served with the complaint and upon any other persons who appeared at the hearing and requested a copy. (I) The decision of the Hearing Officer is final and may not be appealed to the City Council. (J) Within thirty (30) days after service of a copy of the decision of the Hearing Officer, the person may file with the superior court a petition for a writ of mandate for review of the decision. If the person fails to file the petition within this thirty (30) day period, it may not 19 later challenge the reasonableness or validity of the Hearing Officer's decision in any legal action brought by the CUPA to enforce the decision, or any order, or to seek other legal remedies. (K) All administrative civil penalties shall be paid within thirty (30) days of the issuance of the Hearing Officer's decision and order. The filing of a writ of mandate shall not stay the accrual of administrative civil penalties imposed by the Hearing Officer. (L) This Section shall supplement any other legal remedies and shall not preclude the CUPA from filing a civil or criminal action against the person to enforce this Chapter or any orders or notices issued by the CUPA or to assess administrative civil penalties. Section 4.20.250 -- Administrative Hearing. (A) A person regulated under this chapter may request a hearing regarding fees, written notices and orders of the CUPA, denial of permits, proposed suspension or revocation of permits, and immediate suspension of permits to operate. (B) The person may request a hearing in writing addressed to the Chief within ten (10) days after the action. The Chief shall set a date for the hearing within 30 days after receipt of the written request. Notice of the time and place of the hearing shall be mailed to the appellant no later than 15 days before the date set for the hearing by first class mail. The Chief may request the appellant to produce specific records at such hearing and the notice may designate records required to be produced. (C) At the Hearing, a representative of the CUPA shall set forth facts and the applicable statutes, regulations or provisions of this chapter which are applicable and information concerning how fees have been determined. (D) The appellant may appear in person or by agent or legal counsel and may present such evidence as may be relevant. (E) In conducting the hearing, the Chief or other Hearing Officer designated by the Chief shall receive such information, evidence, and testimony as is relevant to the alleged violation, and the formal rules of evidence shall not apply but evidence shall be of the type upon which responsible persons are accustomed to rely in the conduct of serious affairs. (F) The Hearing Officer shall render the decision within fourteen (14) days after the hearing and a copy of the written decision including findings shall be sent to the appellant by first class mail. Section 4.20.260 -- Conflicting Provisions. It is the intent of this chapter to regulate the storage, handling, use and management of hazardous materials or substances unless specifically preempted by State or Federal law. This chapter is not intended, and shall not be construed, to apply to any substance or activity which is preempted by Federal or State law or to the extent that such application would unduly interfere with the 20 achievement of Federal or State regulatory activities. It is the intention of the City Council that this ordinance shall be interpreted to be compatible with Federal and State enactments and in furtherance of the public purposes which those enactments express. If a conflict exists between this chapter and the applicable provisions of the Health and Safety Code, the implementing provisions of the CCR, or the UFC, the most restrictive provisions shall prevail. DIVISION 2: Chapters 4.12 and 4.16 of the San Rafael Municipal Code are repealed. DIVISION 3: If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. DIVISION 4: A summary of this Ordinance shall be published and a certified copy of the full text of this Ordinance shall be posted in the office of the City Clerk at least five (5) days prior to the City Council meeting at which it is adopted. This Ordinance shall be in full force and affect thirty (30) days after its final passage, and the summary of this Ordinance shall be published within fifteen (15) days after adoption, together with the names of the Councilmembers voting for or against same, in the Marin Independent Journal, a newspaper of general circulation published and circulated in the City of San Rafael, County of Marin, State of California. Within fifteen (15) days after adoption, the City Clerk shall also post in the office of the City Clerk, a certified copy of the full text of this Ordinance along with the names of those Councilmembers voting for and against the Ordinance. DIVISION 5: The City Council hereby finds that the adoption and implementation of this ordinance are exempt from the provisions of the California Environmental Quality Act in that the City Council finds there is no possibility that the implementation of this ordinance may have significant adverse effects on the environment. 21 GARY O. LIPS, Vice -Mayor ATTEST: JEANE�M. LEONCINI, City Clerk The foregoing Ordinance No. 1733 was read and introduced at a Regular Meeting of the City Council of the City of San Rafael, held on the 5th day of OCTOBER , 1998 and ordered passed to print by the following vote, to wit: AYES: Councilmembers : Cohen, Mi 11 er and Vi ce-Mayor Phi 11 i ps NOES: Councilmembers : None ABSENT: Councilmembers : Heller and Mayor Boro and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the City Council to be held on the 19th day of OCTOBER , 1998. O ' ' JE& M. LEON W, City Clerk 22