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 ~