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Ord 94ORDINANCE NO. 94 AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA AMENDING THE SAN DI]~C~D COUNTY COOE OF RM~ULATORY ORDINANCES RMGARDING THE DISCLOSURE OF HAZARDOUS MATERIALq THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN AS FOLIDg~: Section 1. Chapter 8 of Division 8 of Title 6 of the San Diego County Code of Regulatory Ordinances (cut,L~ncing with Section 68.801), adopted by reference, is hereby amended to read as follows: Sec. 68.801. FINDINGS AND FORP(~E. The City Council finds and declares: (a) Hazardous substances and hazardous wastes present in the ccmm~tnity may pose acute and chronic health hazards to individuals who live and work in the City, and who are exposed to such substances as a result of fires, spills, industrial accidents, or other types of releases or emission. (b) The people who live and work in the City have a right and need to know of the use and potential hazards of hazardous mterials in the cc~- munity in order to plan for and respond to exposure to such materials. (c) Basic information on the location, type, quantity and the health risks of hazardous materials used, stored, or disposed of in the City is not now available to fire fighters, health officials, health care provi- ders, planners, elected officials, end residents. (d) It is the intent of the City Council that this Chapter recognize the community's right and need for basic information on the use and dispo- sal of hazardous materials in the City and that it establish an orderly system for the provision of such information including appropriate edu- cation and training for use of information. (e) It is further the intent of the City Council that the system of disclo- sure set forth in this chapter shall provide the information essential to firefighters, health officials, health care providers, planners, elected officials and residents in m~cting their responsibilities for the health end welfare of the c~m%%unity in such a way that the statu- tory privilege of trade secrecy is not abridged. Ordinance No. 94 Page 2 Sec. 68.802. DEFINITIONS. For the purpose of this chapter the tern~ listed in this section shall be defined as follows: (a) "Carcinogen" means a substance or agent which can cause cancer. For purposes of this ordinance, carcinogens are chemicals for which there is sufficient evidence of carcinogenicity as specified in guidelines prepared by the International Agency for Research on Cancer and the National Cancer Institute and are listed on the list of hazardous substances established by the Director of Industrial Relations pursuant to Section 6380 of the T~hor Code. (b) "Chemical name" means the scientific designation of a substance in accordance with the International Union of Pure and Applied Chemistry or the syst~u developed by the Chemical Abstracts Service. (c) "C~t,t~n name" means any designation or identification such as code name, code number, trade name, or brand name used to identify a substance other than by its cheuical name. (d) "Disclosure form" means the written request for information prepared by the Health Officer pursuant to Section 68.807. (e) "EPA Waste Stream Code" means the identification number assigned pur- suant to the regulations of the U.S. ~virc~mental Protection Agency to specific types of hazardous waste. (f) "~stablishment" shall mean a single business operation conducted on the same or contiguous parcels of property under the same ownership or entitl~uent to use. (g) "Hazardous material" means any hazardous substance or hazardous waste. (h) "Hazardous substance" means any substance or product: (1) for which the manufacturer or producer is required to prepare an ~DS for the substance or product pursuant to the Hazardous Substances Information and Training Act (c~t,,~ncing with Section 6360, Chapter 2.5, Part 1 of Division 5 of the Labor Code) or pur- suant to any applicable Federal law or regulation; or (2) which is listed as a radioactive material set forth in Chapter 1, Title 10, Appendix B, of the Code of Federal Regulations as main- tained and updated by the Nuclear Regulatory C~,,¥~ssion. (j) (k) (1) Ordinance No. 94 Page 3 "Hazardous waste" means hazardous or extremely hazardous waste as defined by Section 25115 and 25117 of the Health and Safety Code and set forth in Title 22 of the California A~ministrative Code. "Handle" me~__ns to generate, treat, store, or dispose of a hazardous waste in any fashion. "I~SDS" means Material Safety Data Sheet prepared pursuant to Sectio~ 6390 of the Labor Code. "Person" means an individual, trust, firm, joint stock ccenpany, cor- poration, partnership, association, city, county or district. (m) "Proprietary information" means information regarding ccepounds or ingredients used in a process or production which do not qualify as trade secrets but which provides an industry or business with a cc~- petitive advantage. (n) "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment. (o) (p) (q) (r) (s) "Reproductive Toxins" means a substance or agent which can affect reproductive functions causing birth defects, spontaneous abortions, impaired spermatogenesis, reduced fertility and/or intra uterine growth retardation, and appears on the list of hazardous substances prepared by the Director of Industrial Relations pursuant to Section 6380 of the Labor Code. "Sensitive hazardous materials" means hazardous materials recognized by the Health Officer which if deliberately misused would present an in~i- nent threat to public health and safety. "SIC code" me_~ns the identification number assigned by the Standard Industrial Classification Code to specific type of business. "Use" includes the handling, processing, or storage of a hazardous substance. "User" means any person who uses a hazardous substance or handles a hazardous waste. Ordinance No. 94 Page 4 Sec. 68.803. REVI~ OF DESIGNATION AS CARCINOG~NS OR REPROOUCTIVE TOXINS. By July 1, of each year, beginning with the year 1983, the Health Officer may reccmlnend to the City Council materials which should be added or deleted frcm the designation as carcinogens or reproductive toxins described in subdivision (a) and (o) of Section 68.802. Sec. 68.804. HAZARDOUS MATERIALq ADVISORY CO~iITTEE. The Health Officer shall establish an advisory cum'.~ttee representing health care providers, industry, labor, fire suppression, law enforcement, c~,,,'L~nity and envirommental interests. The purpose of the c~,,,,~ttee shall be to advise the Health Officer on the implementation of this ordinance including effective methods of public information and education. Sec. 68.805. FILING OF A HAZARDOUS SUBSTANCE DISCLOSURE FORM. (a) Based on SIC Codes and other similar classifications, the Health Officer shall identify establishments which are potential users of hazardous materials. (b) Every person who owns or operates an establishment t_hat is identified by the Health Officer as a potential user shall ccmlete, within thirty (30) days of receipt frc~ the Health Officer, a form requesting the following information: (1) Name (2) Address (3) Type of Business (4) Whether the person uses or handles hazardous materials. (c) Any person who uses or handles a hazardous mterial must annually sub- mit a c~leted disclosure form to the Health Officer by September 1 of each year. (d) Within thirty (30) days of any: (1) major change in the use of new hazardous mterials in reportable quantities; (2) change of business address; (3) change of business ownership; or (4) change of business name; the user shall submit a disclosure form detailing the new use or handling or other appropriate information. (a) (b) (c) (a) Ordinance No. 94 Page 5 68.806. MAINTflqANCE OF FIL~. The Health Officer shall maintain files for at least 30 years of all disclosure forms received and provide for a data bank of generic MSDS health and safety information. These files shall be open to the public for inspection and reproduction during normal business hours. The disclosure forms shall be filed by strcct address. Any person may request information regarding Hazardous Materials at an establishment frcm the County Department of Health Services. In situations involving potential or actual exposures, the Department shall within two (2) working days of the person's request, examine the records of any establishment made available or submitted pursuant to Section 68.807 (c) of this ordinance to obtain the information requested. The Department shall release the information to the requesting person within five (5) working days of the person's request consistent with the requir~uents of Section 68.811 of this ordinance. In the event of a medical e~ergency, the Department shall take all measures necessary to obtain the information ~.,,t~diately. In situations involving non-inminent public health concerns, or requests for large ~uounts of infonuation, the Department shall provide the information within a reasonable period of time, given the nature and extent of the request. The Department may collect fees to recover costs for providing information under this subsection. 68.807. ~OFTHEDISCI~DSURE FORM. The disclosure form shall be prepared by the Health Officer with the assistance, if necessary, of fire personnel, the Department of Planning Services and other interested parties. The disclosure form shall include requests for the following: (1) A listing of the chemical name or any ccmuon name of each car- cinogen or reproductive toxin used by the person cut~leting the disclosure form. (2) A listing of the chemical name, or c~n names of every hazardous substanceusedbytheperson cc~leting the disclosure form. (3) A listing of every hazardous waste handled by the person c~upleting the disclosure form. (4) The maximum ~uount of each and every hazardous material disclosed in subsections (1), (2) and (3) which is stored at any one time by the user over the course of the year. Quantities are to be reported within specified ranges. Ordinance No. 94 Page 6 (b) (c) (d) {a) (b) (c) (5) An indication that the user possesses appropriate discharge per- mits for any intentional releases of the hazardous materials disclosed in subsection (1), (2) and (3) into the air, water, sewers, or land to enable the cu~%%unity to understand the sources, quantity and content of hazardous material releases. The Health Officer may accept forms required by state or federal law in lieu of portions of the disclosure form specified in this section pro- vided that such state or federal forms contain equivalent information. Any person who is required to maintain and make available an MSDS pur- suant to California Administrative Code, Title 8, Section 5194 shall make such document available to the Health Officer upon request within two (2) working days. Upon request, all users must provide information beyond that specifi- cally requested in the disclosure form to the Health Officer, if the Health Officer determines that such information is necessary to protect health and safety or the environment. Such additional information shall be subject to the trade secret provisions of Section 68.811. 68 . 808 . fME~G~CY RESPONSE INFORMATION . Each establishment shall provide the Health Officer with a list of names, addresses, and phone numbers (office and home) of all persons qualified and authorized to act as an em~_rgency contact. When necessary, the Health Officer may request additional information on how and where hazardous mterials ere stored, for the purpose of distribution to fire departments and other e~ergency response teams that may be called upon to provide emergency services in connection with the handling and use of hazardous materials. All e~=-rgency response information submitted or made available to City agencies pursuant to this section shall be kept confidential and shall not be disclosed to the public unless required by compelling cir- cumstances constituting an inm~nent danger to public health. The City Council hereby finds and declares that this information, were it accessible to the general public, may be potentially used to sabotage, destroy, or otherwise damage industrial facilities. The City Council further declares pursuant to Government Code Section 6255, that the public interest served by not making such information public, clearly outweighs the public interest served by disclosure of such information. (a) (b) (c) Ordinance No. 94 Page 7 (a) (b) (a) (b) 68.809. EX~MPTIONS TO DISCLOSU~WM. A substance designated as a hazardous substance by this chapter solely by its presence c~ the Nuclear Regulatory Cu~,L.~ssien list of radioac- tive materials, shall be ex~,~t from the requirement that these materials be listed oa the disclosure form. Hazardous substances contained only in consumer products packaged for distribution to, and use by, the general public shall be ex~-~t from disclosure under this chapter. Any persen using or handling a hazardous material in ~uounts not exc~ing 500 pounds or 55 gallons, whichever is the lesser, in any month in one location, shall be exempted frcea the requirement of disclosure of that use or handling unless the Health Officer upon approval by the City Council ba~ provided notice that he or she has changed the weight or volume limits of this ex~,-~tion for a specific class of acutely or extremely hazardous materials in response to public health concerns. This exemption shall not apply to laboratories involved in chemical synthesis and production. Known carcinogens or reproductive toxins of any quantity shall not be ex~'~ted pursuant to this subsection unless used or intended to be used for medical or therapeutic purposes. 68.810. P~ALTY FOR VIOLATION - MISD~4EANOR. Any person who, upon receiving written notice from the Health Officer, fails to cutely with the provisions of Section 68.805 is guilty of a misdemeanor. Each day on which a failure to file occurs shall be c~n- sidered a separate violation. Such person may also be civilly liable for injuries to persons or pro- perty caused by the failure to cu,~ly with Section 68.805. 68 . 811 . CONFID~IqTIALITY. If a user believes that a request for information made by either the disclosure form or pursuant to subdivision (c) and (d) of Section 68.807 involves the release of a trade secret, the user shall stamp, mark or designate the information as a trade secret and shall submit the information requested to the Health Officer. The Health Officer shall protect frcm disclosure any and all trade secrets ccmling into his or her possession, as defined in subsection (d) of Section 6254.7 of the Government Code and Section 1060 of the Evidence Code, when requested in writing by the user. Ordinance No. 94 Page 8 (c) (d) (e) (f) Any information reported to or otherwise obtained by the Health Officer, or any of his representatives or ~-~loyees, which is ex~pt frc~ disclosure pursuant to subdivision (b), shall not be disclosed to anyone except an officer or ~loyee of the City, the County, the State of California, or the United States of America, in connection with the official duties of such officer or e%k01oyee under any law for the pro- tection of health, or to contractors with the County or medical service providers and their ~mployees, if in the opinion of the Health Officer such disclosure is necessary for the satisfactory performance of their duties. For the purposes of this Section, fire and ~mergency response personnel and County health personnel operating within the jurisdiction of the City shall be cc~nsidered ~,~loyees of the City. Information certified by appropriate officials of the United States, as necessarily kept secret for national defense purposes, shall be accorded the full protection against disclosure as specified by such official or in accordance with the laws of the United States. (1) The Health Officer upon his or her own initiative or upon receipt of a request for the release of information designated as a trade secret by a user, shall determine whether any or all of the infor- mation so submitted is properly designated as a trade secret. (2) If the Health Officer determines that the information is not a trade secret, the Health Officer shall notify the user by cer- tified mail. (3) The user shall have fifteen (15) days after receipt of notifica- tion to provide the Health Officer with a complete justification and statement of the grounds on which the trade secret privilege is claimed. This justification and statement shall be submitted by certified mail. (4) The Health Officer shall determine whether such information is protected as a trade secret within fifteen (15) days after receipt of the justification and stat~nent or, if no justification and statement is submitted, within thirty (30) days of the original notice. The Health Officer shall notify the user and any party who has requested the information of that determination. The final notice shall also specify a date, not sooner than fift~n (15) days after the date of mailing of the final notice, when the information shall be made available to the public. (g) (h) (i) Ordinance No. 94 Page 9 (5) Prior to the date specified in the final notice, a user may insti- tute an action in an appropriate Superior court for a declaratory judgment as to whether such information is subject to protection under subdivisic~ (a) and the information shall not be disclosed pending final judgment in such action. The provisions of this section shall not peu~t a user to refuse to disclose information required pursuant to this chapter to the Health Officer. A user may designate, when appropriate, information made available to the Health officer by either the disclosure form or pursuant to sub- divisions (c) and (d) of Section 68.807 as proprietary information or as information regarding sensitive hazardous materials. The Health officer will disclose this information only to health care providers or other individuals, including but not limited to neighborhood residents, after the Health Officer determines that this information is needed for legitimate health concerns. In situations involving extremely sensitive materials, such as national defense work, which are normally protected by elaborate security systems, the Health Officer may issue a variance to emit the listing of certain hazardous substances frcm the disclosure form to protect such information frc~ inadvertant disclosure, provided that the user satis- fies the following requirenents: (1) The user must d~onstrate to the satisfaction of the Health officer that there is the potential for misuse if the hazardous substances or information r~arding th~m are obtained by the public. (2) The user must indicate on the appropriate place on the disclosure form that a hazardous substance is being cmitted from the form. (3) The user must provide the following information frc~ the MSDS for each hazardous substance c~itted: Fire and Explosive Hazard Data; Health Hazard Data; Reactivity Data; Spill or Leak Procedures; Special Protection Information; and Special precautions. (4) The user must agree to an inspection of all facilities by the Health Officer to ensure that all hazardous materials are being handled in a safe manner. (5) The user must make provisions to allow for Lt~'L~diate independent 24-hour access to the hazardous materials records of the establishment by the Health Officer. Ordinance No. 94 Page 10 (6) The user must establish to the Health Officer's satisfaction that an emergency coordinator will be available on a 24-hour basis to supply information on hazardous materials at the establishment to the Health Officer. (7) The user must keep at least ome listing of hazardous substances cmitted frcm the disclosure form at a separate location frcm the establishment. (8) The user may be required to pay a higher permit fee to cover the extra costs of additional inspections and administrative proce- dures required by the above requirements. (j) Any officer or ~,~loyee of the City, or former officer or employcc, who by virtue of such ~mployment or official position has obtained posses- sion of or has access to material the disclosure of which is prohibited by this section, and who knowing that disclosure of the material is prohibited, knowingly and willfully discloses the mterial in any manner to any person known not to be entitled to receive it, shall be guilty of a misdemeanor. Any contractor with the City of Poway and any ~ployee of such contractor, who has b~n furnished information as authorized by this section, shall be considered to be an ~,~loyee of the City of Poway for purposes of this section. (k) The City Council finds and declares, pursuant to the Government Code Section 6255, that the public interest served by not making information regarding trade secrets, proprietary information, and sensitive hazar- dous materials public clearly outweighs the public interest served by disclosure of such information to members of the general public, except as provided by this section. Sec. 68.812. F~. The City Council may establish a schedule of fees to be paid by persons using or handling hazardous materials which is sufficient to cover the costs to the County of administering this chapter and conducting investigations to ensure compliance. The schedule of fees shall include a pro- vision for collection of delinquency fc~. Sec. 68.813. ~NFORC~M~N~ OFFICER - AUTHORITY - INSP~gCTION. The Health officer is authorized and ~owered to enforce the provisions of this chapter and to inspect such activities as are regulated in this chapter for the purpose of determining cc~pliance with this chapter. No person shall obstruct or inter- fere with the Health Officer in his performance of these duties. The Health officer shall be ~f~owered to make such arrests and issue citations pursuant to Penal Code Section 836.5 and 833.7 for violations of this chapter. Ordinance No. 94 Page 11 Sec. 68.814. SEVERABILITY. If any sectic~, subsection, sentence, clause, or phrase of this chapter is for any reasom held to be invalid or unconstitu- tional by a decision of any court of cu~Jetent jurisdiction, such decision shall not affect the validity of the remaining portions of the chapter. The City Council hereby declares that it would have passed this chapter and each and every section, subsection, sentence, clause, or phrase not declared invalid or uncomstitutional without regard to whether any portion of this chapter would be subsequently declared invalid or uncomstitutional. Section 2. This ordinance shall take effect and be in force thirty (30) days after the date of its passage; and the City Clerk of the City of Poway is hereby authorized to use sunmiiry publication procedures pursuant to Government Cede Section 36933 utilizing the Poway News-Chieftain, a newspaper of general circulation published in the City of Poway. Introduced and first read at a regular meeting of the City Council of the City of Poway held the 12th day of April, 1983, and thereafter PASSED AND ADOPTED at a regular m~cting of said City Council held the 19th day of April , 1983, by the following roll call vote: AYES: NOES: ABSMqT: COUNCTTA~MBERS: COUNC ILMSI~B~: OOUNCIIMMMBERS: ~4ERY, KRUSE, SHEPARDSCN, ORAVEC NCNE TARZY Linda Oravec, Mayor Ma~orie- K. Wahlsten / City C]ferk ~