City of Gonzales, TX HAZARDOUS MATERIALS

The International Agency for Research on Cancer (IARC) states that there is sufficient evidence of carcinogenicity in animals, or that there is potential of human carcinogenicity or that the substance is a confirmed human carcinogen; or

Hazardous Material [“HAZ-MAT”].

The National Cancer Institute (NCI) has found in animal bioassay that there is positive evidence of carcinogenesis in animals or humans.

CAS Number.

The unique identification number assigned by the Chemical Abstracts Service to specific chemical substances.

Chemical Name.

The scientific designation of a substance in accordance with the International Union of Pure and Applied Chemistry of the system developed by the Chemical Abstracts Service.

Common Name.

Any designation or identification such as code name, code number, trade name, or brand name used to identify a substance other than by its chemical name.

City Manager.

The city manager of Gonzales, Texas or his assigned employees.

Disclosure Statement.

The written request for information prepared pursuant to Section 6.506(c)(1)-(4)..

EPA Waste Stream Code.

The identification number assigned pursuant to the regulations of the U.S. Environmental Protection Agency to specific types of hazardous waste.

Facility.

An area, a building, or buildings, appurtenant structures and surrounding land area used by a single business entity at a single location or site.

Handle.

To generate, treat, store or dispose of a hazardous waste in any fashion.

Hazard Class.

Explosives A, Explosives B, Explosives C, blasting agents, flammable liquids, combustible liquids, flammable solids, oxidizers, organic peroxides, corrosive materials, flammable gases, nonflammable gases, Poisons A, Poisons B, irritating materials, etiologic agents, radioactive materials, other regulated materials.

Any material which is subject to regulation pursuant Section 6.505. A mixture shall be deemed to be a hazardous materials if it is either a waste and contains any material regulated pursuant to Section 6.505.

Hazardous Waste.

Hazardous or extremely hazardous waste as defined by the Environmental Protection Agency (EPA).

MSDS.

A material safety data sheet prepared pursuant to the regulations of the Occupational Safety and Health Administration.

Officer.

Officer or employee assigned by the city manager to administer this article, or any designee of such officer or employee.

Permit.

Any hazardous materials storage permit issued pursuant to this article, as well as any additional approvals thereto.

Permit Quantity Limit.

The maximum amount of hazardous material that can be stored in a storage facility. Separate permit quantity limits will be set for each storage facility for which a permit is obtained in accordance with the requirements of this article.

Permittee.

Any person, firm or corporation to whom a permit is issued pursuant to article, and any authorized representative, agent or designee of such person, firm or corporation.

Physician.

Any person who holds a valid certificate from the state to practice the healing arts.

Pipes.

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

Primary Containment.

The first level of containment, such as, the inside portion of that container which comes into immediate contact on its inner surface with the hazardous material being contained.

Product-Tight.

Impervious to the hazardous materials which is contained, so as to prevent the seepage of the hazardous material from the primary containment. To be “product-tight” the container shall be made of a material that is not subject to physical or chemical deterioration by the hazardous material being contained.

Secondary Containment.

The level of containment external to and separate from the primary containment.

SIC Code.

The identification number assigned by the Standard Industrial Classification Code to specific types of businesses.

Single-Walled.

Construction with walls made of but one thickness of material. Laminated, coated, or clad materials shall be considered as single-walled.

Storage Facility.

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

Sump.

A pit or well in which liquids collect.

Use.

Includes the handling, processing or storage of a hazardous substance.

User.

Any person who uses a hazardous substance or handles a hazardous waste.

Unauthorized Discharge.

Any release or emission of any hazardous material which does not conform to the provisions of this article, unless such release is in accordance with the release regulations of the National Pollutant Discharge Elimination System Permit, or with waste discharge requirements established by the Regional Water Quality Control Board pursuant to or with local sewer pretreatment requirements for publicly owned treatment works.

Wet Floor.

A floor which is used to routinely collect, contain or maintain standing liquids or to transmit standing liquids on a more or less continuous basis.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.71)

§ 6.503 Professional Assistance for City Determinations.

Whenever the approval or satisfaction of city may be required under this article for a design, monitoring, testing, or other technical submittal by an applicant or permittee, the city may in its discretion, require such applicant or permittee, at such applicant’s or permittee’s sole cost and expense, to retain a suitably qualified independent engineer, or chemist, or other appropriate professional consultant, acceptable to city, for the purpose of evaluating and rendering a professional opinion respecting the adequacy of such submittal to achieve the purposes of this article. City shall be entitled to rely on such evaluation and/or opinion of such engineer, chemist or professional consultant in making the relevant determinations provided for in this article.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.72)

§ 6.504 Obligation as to Storage of Hazardous Materials.

No person, firm or corporation shall cause, suffer or permit the storage of hazardous materials:

In the manner which violates a provision of this article of any other local, federal or state statute, code, rule or regulation relating to hazardous materials;

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

The city manager or his assigned personnel shall have discretion to exempt an applicant from any specific requirement of this article, other than the requirement for secondary containment in underground storage facilities, except as provided in Section 6.507(b) or to require applicant to meet additional or modified requirements, where such action would be appropriate and consistent with achieving the general obligation of this article for protecting public health, safety and welfare.

Any person, firm, or corporation which stores any material regulated by Section 6.505 which is not excluded by Section 6.505(b) shall obtain and keep current a hazardous materials storage permit.

All such hazardous materials shall be contained in conformity with Section 6.507.

The storage of such hazardous materials shall be in conformance with the approved hazardous materials management plan.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.73)

§ 6.505 Enumeration of Regulated Materials.

The materials regulated by this article shall consist of the following:

Any material listed as a hazardous and/or extremely hazardous material;

Any material which is on the list of Environmental Protection Agency (EPA) toxic pollutants, 40 CFR 401.15, as amended;

Any material which is classified by the National Fire Protection Association (NEPA) as either a flammable liquid a Class II combustible liquid or a Class III-A combustible liquid; or

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

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

Exclusions shall apply only to materials which are not otherwise regulated pursuant to this section. These exclusions shall be as follows:

The following elemental metals included within the purview of subsection (a) above shall not be considered hazardous materials for purposes of this article unless they are stored in a friable, powered or finely divided state:

Aluminum;

Beryllium;

Cadmium;

Chromium;

Copper

Lead;

Manganese;

Molybdenum;

Nickel;

Rhodium;

Silver;

Tellurium;

Tin; and

Zinc.

Regardless of state, Tantalum, Titanium, Tungsten, and Uranium shall be excluded from regulation under this article.

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

Aluminum salts;

Asphalt fumes;

Atrazaine;

Benomyl;

Bis (dimethylthiocarbamoyl) disulfide;

Boron oxide;

(G)

4-tert-butyl-2-Chlorophenyl-methyl methyl-phosphoramidate;

(H)

Camphor;

(I)

Carbon Black;

(J)

2-Chlor-6 (trichloromethyl) pyridine;

(K)

Clopidol;

(L)

Coal tar pitch volatiles;

(M)

Cotton dust;

(N)

Dibenzoyl peroxide;

(O)

Dicyclopentadieny iron;

(P)

3, 5-Dinitro-o-toluamide;

(Q)

2, 6-Di-tert-butyl-p-cresol;

(R)

Ferbam;

(S)

Fumaric acid;

(T)

Glass, fibrous or dust;

Graphite;

Helium;

Iron oxide;

Iron salt;

Magnesium oxide;

Mica;

Mineral wool fiber;

Oil mist;

Pheno-othiazine;

Phenyl ether;

Phenyl ether-diphenyl (eutectic mixture) vapor;

(FF)

Phthalic anhydride;

(GG)

m-PhthadlodinitriIe;

(HH)

Polytetra-fluoreoethylene decomposition products;

(II)

Rhodium salts;

(JJ)

Ronnel Rosin core solder;

(KK)

Rotenone, commercial;

Silica;

Soapstone;

Talc;

Tantalum oxide;

Terphenyls;

4-4-Thiobis (6-tertbutyl-m-cresol).

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

Hazardous materials when contained in a substance intended for use as animal feed.

Hazardous materials located at a work station in a quantity reasonably required for use as determined by the circumstances.

(7)

The city manager shall exempt any material from the requirements of this article where it has been demonstrated to the satisfaction of city that the material in the quantity and/or solution stored does not present a significant actual or potential hazard to the public health, safety or welfare.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.74)

§ 6.506 Hazardous Material Disclosure Statement.

Filing of Statement.

Any person who uses or handles a hazardous material must annually submit a completed disclosure statement to the city clerk.

A person not required to obtain a business license who uses or handles a hazardous substance shall submit a completed disclosure statement by September 1 of each year.

The user shall submit a disclosure statement detailing the new use or other appropriate information within 15 days of any:

New use or significant change in the use or handling of a material;

New use or handling of a previously undisclosed hazardous material;

Change of business address;

Change of business ownership; or

Change of business name.

Disclosure of Information.

Upon receipt of a disclosure statement, the city clerk shall ensure that the name and address on the form are correct.

The city secretary shall maintain files of all disclosure statements received. Subject to the provisions of subsection (c)(6) relating to trade secrets, these files shall be open to the public during normal business hours. The disclosure statement shall be filed by street address and parcel number and cross-referenced by the SIC number(s) and CAS number(s) of EPA waste stream codes listed on the disclosure form.

The city secretary department shall keep a record of all person who request access to the hazardous materials disclosure forms. The record shall include:

The person’s name, address and telephone number;

Name and address of the person, business or governmental agency such person represents; and

Identity of the specific files(s) examined or requested to be copied by the user.

Statement to be Filed With City Secretary; Renewal; Content.

A disclosure statement shall be filed with the city secretary.

If a disclosure statement has not been amended within a year’s time, the disclosure statement will expire a year from the date it was received. Within 30 days after expiration, the disclosure statement must be revised and resubmitted to reflect current data as required by subsection (c)(3) of this section.

The disclosure statement form shall include, but not be limited to, requests for the following:

A copy of the Material Safety Data Sheet (MSDS) for every hazardous substance used by the person completing the disclosure statement.

If a material regulated under this article is not covered by the EPA “Hazardous Substance Information and Training Act” and therefore, there is no MSDS available, the permittee is required to compile an information sheet on the material to approximate what is required on a MSDS.

The maximum aggregate amount of each hazardous material disclosed in either subsection (i) or (ii) above which is handled or used at any one time by the user over the course of a year.

(iv)

The Department of Health Services manifests for wastes or equivalent information, and the hazard class or classes compiled over the course of a year.

(v)

Sufficient information on how and where the hazardous materials disclosed in subsection (iii) above are handled or used by the user to allow fire and safety personnel to prepare adequate emergency responses to potential releases of the hazardous materials.

Sufficient information on any releases of the hazardous materials disclosed in subsection (iii) above, into the air, water, sewers, or land to permit the city to understand the sources and content of hazardous material releases.

The SIC code of the business, if applicable.

The name and phone number of the person representing the business and able to assist emergency personnel in the event of an emergency involving the business during nonbusiness hours.

Upon request, all users must provide information in addition to that required in the disclosure form filed pursuant to subsection (a) above as follows:

To the city manager, any information determined by the city manager to be necessary to protect the public health, safety and/or the environment; and

To any physician where the physician determines that such information is necessary to the medical treatment of his or her patient. Any additional information furnished under this subdivision shall be subject to the trade secret provisions of subsection (c)(4) of this section.

The following materials, person or entities shall be exempt from disclosure under this article:

A material designated as a hazardous material by this article solely by its presence on the Nuclear Regulatory Commission list of radioactive materials shall be exempt from the requirement that a MSDS be submitted with the disclosure statement.

Any person using or handling an aggregate amount less than 500 pounds or 55 gallons or 200 cubic feet of compressed gas at standard temperature and pressure (STP) whichever is the lesser of a hazardous material, shall be exempted from the requirement of disclosure of that use or handling unless the city manager has provided notice that he or she has lowered the weight or volume limits of this exemption for specific hazardous material in response to public health concerns. The exemption of this subsection shall not apply to the using or handling of carcinogens except to the extent that such carcinogens are handled or used solely for personal purposes.

Hazardous substances contained solely in consumer products packages for use by and distributed to the general public.

Any person, while engaged in the transportation of hazardous materials, including storage directly incident thereto, provided that such materials are accompanied by shipping papers prepared in accordance with the provisions of 49 CFR Parts 171 through 177.

The disclosure statement is a public record, except that no trade secret shall be disclosed. Any request for a public record hereunder shall be submitted in writing.

Trade Secrets.

If a user believes that a request for information made by either the disclosure statement or otherwise pursuant to this article involves the release of a trade secret, the user shall so notify the city clerk in writing nonetheless, of that information on the statement that the user believes involves the release of a trade secret.

Subject to the provisions of this section, the city clerk shall protect from disclosure any trade secret coming into it possession when requested to do so in writing by the user.

When a claim for trade secret protection is made for any hazardous material pursuant to this subsection, the disclosure statement to be publicly disclosed shall indicate the number of materials claimed to be trade secrets and the maximum quantity used or handled at the facility.

Any information reported to or otherwise obtained by the city manager, or any of his representatives or employees, which is exempt from disclosure pursuant to subsection (A) above shall not be disclosed to anyone except:

(aa)

To an officer or employee of the city, the state, or the United States of America, in connection with the official duties of such officer or employee under any law for the protection of health, or to contractors with the city and their employees if in the opinion of the city clerk such disclosure is necessary and required for the satisfactory performance of work; or

(bb)

To any physician where the physician determines that such information is necessary to the medical treatment of his or her patient.

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

Any officer or employee of the city, or former officer or employer, who by virtue of such employment or official position has obtained possession of or the access to information, the disclosure of which is prohibited by this subsection, and who, knowing that disclosure of the information is prohibited, knowingly and willfully discloses the information in any manner to any person not entitled to receive it, shall be guilty of a misdemeanor. Any contractor with the city and any employee of such contractor, who has been furnished information as authorized by this subsection, shall be considered to be an employee of the city for purposes of this section. Any physician who has been furnished information or who has obtained information pursuant to subsection (c)(6)(C)(ii)(bb) above and who, knowing that the disclosure of the information is prohibited, knowingly and willfully discloses the information, shall be guilty of a misdemeanor.

Information certified by appropriate officials to the United States, as necessarily kept secret for national defense purposes, shall be accorded the full protections against disclosure as specified by such official or in accordance with the laws of the United States.

(G)

The city official shall endeavor to protect: for disclosure any and all trade secrets which come into the city’s possession pursuant to subsection (F). If an action is instituted under the State Public Records Act for the release of such trade secrets, the permittee or permit applicant shall be deemed a real party in interest in any such action. Notice of a lawsuit to compel disclosure shall be given by the city to the permittee or permit applicant promptly upon receipt of such notice by city. The permittee or permit applicant shall have the option to defend the city in any such action. The permittee or permit applicant shall indemnify the city for any and all attorney’s fees, costs and expenses imposed on or otherwise incurred by city in any proceeding related to this subsection, as well as for any judgment imposed.

(H)

The provisions of this subsection shall not permit a user to refuse to disclose information required pursuant to this article to the city clerk.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.75)

§ 6.507 Containment Standards.

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

All installation, construction, repair or modification, closure, and removal shall be to the satisfaction of city. The city manager shall have the discretion to exempt an applicant from any specific requirement, other than the requirement to secondary containment in underground storage facilities, or to impose reasonable additional requirements, in order to better secure the purpose and general obligation of this article, it shall serve as an interpretation of the provisions of this article addressed in such guidelines.

New Storage Facilities.

No person, firm or corporation shall construct or install any new storage facility until a permit or approval has been issued pursuant to this article.

All new storage facilities intended for the storage of hazardous materials which are liquids or solids at standard temperature and pressure (STP) shall be designated and constructed with a monitoring system capable of detecting that the hazardous material stored in the primary containment has entered the secondary containment.

Visual inspection of the primary containment is the preferred method; however, other means of monitoring may be required. Where secondary containment may be subject to the intrusion of water, a means of monitoring for such water shall be provided.

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

Primary and secondary levels of containment shall be required for all new storage facilities intended for the storage of hazardous materials which are liquids or solids at standard temperature and pressure (STP), unless specifically herein exempted by the city manager.

All primary containment shall be product tight.

Secondary Containment:

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

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

In the case of a storage facility with multiple primary containers, the secondary container shall be large enough to contain 150% of the volume of the largest primary container placed in it, or 10% of the aggregate internal volume of all primary containers in the storage facility, whichever is greater.

(iv)

If the storage facility is open to rainfall, then the secondary containment must be able to additionally accommodate the volume of a 24-hour rainfall as determined by a 25-year storm history.

Laminated, coat, or clay materials shall be considered single walled and shall not be constructed to fulfill the requirements of both primary and secondary containment.

A variance from the requirement for secondary containment for an underground storage facility may be granted upon a finding by the city council that based on special circumstances:

(aa)

The requirement of secondary containment creates an unusual and particular hardship;

(bb)

An equivalent or superior degree of protection is provided by the proposed alternative; and

(cc)

The proposed alternative has been appropriately certified or has been specified in the guidelines approved.

No variance shall be granted under this section except after a public hearing on such variance, notice of which is published once in a newspaper of general circulation not less than ten nor more than 20 days prior to such hearing to any interested party who files a written request therefore. Any written request for such mailed notice shall be valid for one year from the date on which it is filed unless a renewal request is filed. Renewal requests for such mailed notices shall be filed on or before July 1 of each year commencing July 1, 1986. The notice shall contain a statement that a variance from secondary containment for hazardous materials will be considered, the address of the facility for which a variance is sought, the name of the applicant, and the time and place of the hearing.

Means of overfill protection may be required for any primary container. This may be an overfill prevention device and/or an attention getting high level alarm.

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

Drainage of precipitation from within a storage facility containing hazardous materials which are liquids or solids at STP, shall be controlled in a manner approved by the city manager so as to prevent hazardous materials from being discharged. No drainage system will be approved unless the flow of the drain can be controlled.

Existing Storage Facilities.

Any storage facility in existence as of the effective date of this article or any storage facility for which a building permit was issued prior to the effective date of this article (i.e., June 9, 1987) which does not meet the standards of this article, may be permitted pursuant to this article as long it is providing suitable storage for hazardous materials as determined by the city manager. In addition, storage facilities which contain hazardous materials which are liquids or solids at standard temperature and pressure (STP) must be monitored in accordance with a plan approved by the city manager as set forth herein:

A monitoring plan for each such storage facility containing hazardous materials which are liquids or solids at STP, shall be submitted to city as part of the hazardous materials management plan.

Monitoring under such plan shall include visual inspection of the primary containment wherever practical; however, if the visual inspection is not practical, an alternative method of monitoring each storage facility on a semi-annual or more frequent basis may be approved by city.

Alternative methods of monitoring may include but are not limited to:

Pressure testing piping systems, one or more groundwater monitoring wells which are down-gradient and adjacent to the storage facility;

Vapor analysis within each well where appropriate; and

Analysis of any soil borings at the time of initial installations of each well. The number of wells, depth of wells, and sampling frequency shall be approved by the city manager.

Such monitoring devices and methods as approved by the city shall be installed and operating within six months of the issuance of a provisional permit. The community development director may grant an extension of this compliance date; however, such extension shall not exceed one additional year. The full term permit may be issued when compliance with this part of this article has been approved.

The continued use of a permit approved for existing storage facilities is subject to review and modification or termination by city whenever there has been any unauthorized discharge. It shall also be reviewed by the city manager each time the permit is renewed. In determining whether continued storage in such storage facility is suitable, the community development director shall consider the age of the storage facility, the methods of containment, the methods of monitoring, the feasibility of the required retrofit, the concentration of the hazardous materials contained, the severity of potential unauthorized discharge, and the suitability of other long term preventive measures which meet the intent of this article.

Existing storage facilities which are not approved in accordance with this article must be upgraded to comply with this article or be closed in accordance with subsection (d) below within one year of a decision not to issue a full term permit. Extension of time for compliance with this subsection is not to exceed one additional year, may be granted try the city manager.

Out of Service Facilities.

No storage facility shall be abandoned.

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

Any storage facility which is not being monitored and inspected in accordance with this article must be closed or removed in a manner approved by the city manager.

Any person, firm or corporation having an interest, including a leasehold interest, in real property and having reason to believe that an abandoned storage facility is located upon such storage facility within six months of the effective date of this article (i.e., June 9, l987).

Whenever an abandoned storage facility is located, a plan for the closing or removing or the upgrading and permitting of such storage facility shall be filed within 90 days of its discovery. A closure plan shall conform to the standards for closure specified in this article.

Monitoring.

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

Every permittee under this article shall provide testing, monitoring (if applicable) and inspections in compliance with the hazardous materials management plan and shall maintain records adequate to demonstrate compliance therewith.

Every permittee under this article shall carry out maintenance, ordinary upkeep, and minor repairs in a careful and safe manner. No permit or other approval will be required for such maintenance and upkeep.

Any substantial modification or repair of a storage facility other than minor repairs or emergency repairs shall be in accordance with plans to be submitted to the city manager and approved in accordance with this article prior to the initiation of such work.

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

Replacement of any storage facility for hazardous materials which are liquids or solids at STP, must be in accordance with the new storage facilities standards of this article.

(g)

Handling.

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

When hazardous materials are moved into or out of a storage facility, they shall remain in the travel path only for the time reasonably necessary to transport the hazardous material, and such movement shall be in a manner which will not substantially increase the risk of an unauthorized discharged.

(h)

Secured Facilities.

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

Emergency Equipment.

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

(j)

Posting of Emergency Procedures.

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

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.76)

§ 6.508 Transportation of Hazardous Materials.

All hazardous materials transported into, within, and out of the city limits must be in compliance with the mandatory requirements of Title VII, and Title 49 of the Code of Federal Regulations.

Transportation of hazardous materials shall be limited to specific travel routes along Highway 183 and Highway 90A. The transport of hazardous materials on streets other than those listed above is prohibited by this article, excepting those cases provided for in subsection (d) below.

Transportation of hazardous materials into, within and out of the city limits must be done between the hours of 2:00 a.m. and 6:00 a.m. Transportation of hazardous materials at any other time is prohibited by this article, excepting those cases provided for in subsection (d) below.

Exemptions.

Gasoline Deliveries.

Gasoline may be transported off regular routes along Highway 183 and Highway 90A and within the city only if its final destination for delivery is within city limits. The route of transportation must be the most direct and safe available.

Permission may be granted by the city manager to transport hazardous materials on streets other than those designated as hazardous material transport routes and at times other than the designated hours of 2:00 a.m. to 6:00 a.m. Requests for such permission must be submitted in writing to the city manager at least 24 hours prior to the requested time of transport.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.77)

§ 6.509 Hazardous Materials Management Plan.

Each applicant for a permit pursuant to this article shall file a written plan for the city manager’s approval, to be known as a Hazardous Materials Management Plan (HMMP), which shall demonstrate the suitable storage of hazardous materials. The HMMP may be amended at any time with the consent of the city manager. The HMMP shall be a public record except as otherwise specified. Approval of the HMMP shall mean that the HMMP has provided adequate information for the purposes of evaluating the permit approval. Such approval shall not be understood to mean that the city has made an independent determination of the adequacy of that which is described in the HMMP.

Standard Form HMMP.

The standard form hazardous material management plan must be submitted unless the facility qualifies as a minimal storage site under this article. The HMMP shall include and be subject to the following:

General Information.

HMMP shall contain the name and address of the facility and business phone number of applicant, the name and titles and emergency phone numbers of the primary response person and an alternate, the number of employees, number of shifts, hours of operation, and principal business activity.

General Facility Description.

The HMMP shall contain a map drawn at a legible scale and in a format and detail determined by the city manager. It shall show the location of all buildings and structures, chemical loading areas, parking lots, internal roads, storm and sewer drains, and shall specify the uses of adjacent properties. The city may also require information as to the location of wells, floodplains, earthquake faults, surface water bodies, and/or general land uses (schools, hospitals, institutions, residential areas) within one mile of the facility boundaries.

Facility Storage Map.

The HMMP shall contain a facility storage map at a legible scale for licensing and enforcement purposes. The information in this section is provided for purposes of ensuring the suitable and secure storage of emergency response personnel of city. The facility storage map shall indicate the location of each hazardous material storage facility, and access to such storage facilities. In addition, the map shall indicate the location of emergency equipment related to each storage facility, and the general purpose of the other areas within each facility. For each storage facility, the map shall contain information as prescribed below, except that where the hazardous material being stored is a trade secret, it shall be identified in a coded manner (and the key shall be provided separately) and not in a manner which would reveal trade secret information:

A floor plan to scale and the permit quantity limit.

For each nonwaste hazardous material which is stored in a quantity greater than the quantities specified the general chemical name, common/trade name, major constituents for mixtures, United Nations (US) or North America (NA) number, if available, and physical state. For each waste hazardous material stored in any quantity within the storage facility, the presence of wastes and its major constituents shall be indicated.

For all hazardous materials, including wastes, stored in such storage facility, the hazard class or classes and the quantity range for each such class, aggregated within each storage facility, in the following range:

Quantity Number Range	Range Amounts
1	Up to and including 500 pounds for solids, 55 gallons for liquids, and 200 cubic feet at STP for compressed gases
2	Between 500 and 5,000 pounds for solids, 55 and 550 gallons for liquids and 200 and 2,000 cubic feet at STP of compressed gases
3	Between 5,000 and 25,000 pounds for solids, 550 to 2,750 gallons for liquids, and 2,000 to 10,000 cubic feet at STP for compressed gases
4	Between 25,000 and 50,000 pounds for solids, 2,750 add 5,500 gallons for liquids, and 10,000 and 20,000 cubic feet at STP for compressed gases
5	More than 50,000 pounds solids, 5,500 gallons for liquids, and 20,000 cubic feet at STP for compressed gases

For materials not regulated under this article but regulated under the Standard Fire Code, such as radio actives or cryogens, or for materials stored in storage facilities exempted by the city manager may require that the hazard class or classes and the quantity range of each such hazard class, using the quantity ranges listed in subsection (c) above be provided.

For hazardous materials which are water reactive, the map shall provide a code for their location.

For tanks, the capacity limit of each tank and the hazardous material contained in each tank by general chemical name, common/trade name, major constituents for mixtures, United Nations (UN) or North America (NA) number, if available, and physical state.

Confidentiality of Facility Storage Map.

Due to the threat to the security of the facility storage map, this information shall be maintained by city for law enforcement purposes only and shall not be made public. The city shall not disclose this information to the public without the consent of the permittee or permit applicant unless ordered to do so by a court of competent jurisdiction. The permittee or permit applicant shall be deemed a real party in interest in any such action. Prompt notice of a lawsuit to compel disclosure shall be given by the city to the permittee or permit applicant. However, the city shall be under no duty to prevent disclosure where there has been any unauthorized discharge of hazardous materials stored in any storage facility shown on such map or where the disclosure arises out of any official emergency response relating to the storage facility.

Annual Update.

The facility storage map shall be updated annually with the disclosure statement or whenever an additional approval is required for the facility or whenever the disclosure statement is required to be amended.

Disclosure Statement.

The disclosure statement shall be filed in accordance with Section 6.506.

(7)

Separation of Materials.

The HMMP shall contain a description of the methods to be utilized to ensure separation and protection of stored hazardous materials from factors which may cause a fire or explosion, or the production of a flammable, toxic, or poisonous gas, or other deterioration of the primary or secondary containment.

(8)

Monitoring Program.

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

(9)

Recordkeeping.

The HMMP shall contain an inspection checksheet or log designed to be used in conjunction with routine inspections. The checksheet or log shall provide for the recording of the date and the of inspection, and for monitoring activity the date and time of any corrective action taken, the name of the inspector, and the counter signature of the designated safety manager for the facility or the responsible official as designated in the HMMP.

(10)

Emergency Equipment.

The HMMP shall describe emergency equipment availability, testing and maintenance.

(11)

Variation in Information.

Additional information may be required for the HMMP where such information is reasonably necessary to meet the intent of this article.

Requirements for information in the HMMP may be waived where such information is not reasonably necessary to meet the intent of this article.

Whenever the permittee has submitted a plan which includes substantially the same information as is required for any component(s) of the HMMP to any other public agency regulating hazardous materials, such plan may be submitted to the city manager in lieu of such component(s) with the permission of the city manager.

Short Form HMMP; Minimal Storage Site.

A facility qualifies as a minimal storage site if the quantity of each hazardous material stored in one or more storage facilities in an aggregate quantity for the entire facility is 500 pounds or less for solids, 55 gallons or less for liquids, or 200 cubic feet or less at STP for compressed gases.

The applicant for a permit for a facility which qualifies as a minimal storage site may opt to file the short form hazardous materials management plan. Such plan shall include the following components:

General information as called for in subsection (b)(1) above;

A simple line drawing of the facility showing the location of the storage facilities and indicating the hazard class or classes and physical state of the hazardous materials being stored, whether any of the material is a waste and shall indicate presence and location of hazardous materials which are water reactive.

A carcinogen identification form which shall indicate the storage of any quantity of any carcinogen. This provision will be satisfied by the submittal to the city manager of a copy of the carcinogen registration form submitted to the Texas Department of Industrial Relations in accordance with this article, as amended.

Information describing that the hazardous materials will be stored in a suitable manner and will be appropriately contained, separated and monitored.

Description of emergency equipment to be maintained.

Assurance that the disposal of any hazardous materials will be in an appropriate manner.

Where a claim for trade secret protection is made for any carcinogen pursuant to this article, the carcinogen identification to be publicly disclosed shall identify all carcinogens not claimed to be trade secrets and it shall indicate the number of carcinogens claimed to be trade secrets.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.78)

§ 6.510 Report of Discharges.

Reporting Unauthorized Discharge Liquids and Solids at STP.

As soon as any person in charge of a storage facility or responsible for emergency response for a facility has knowledge of any unauthorized discharge of a hazardous material which is liquid or solid at STP, such person shall take all necessary steps to ensure the discovery and containment and clean up of such discharge and shall record or report the occurrence as required by this article.

Unconfirmed Unauthorized Discharge.

Indication of Loss in Inventory Records.

Whenever a material balance or other inventory record employed as a monitoring technique under the HMMP indicates a loss of hazardous material, and no unauthorized discharge has been confirmed by other means, the permittee shall have five working days to determine whether or not there has been an unauthorized discharge. If before the end of such period it is determined that there has been no unauthorized discharge, an entry explaining the occurrence shall be made in the permittee’s monitoring record. Where the permittee has not been able, within such period, to determine that there has been no unauthorized discharge, it is deemed confirmed and the permittee shall proceed in accordance with this article.

Test Results.

Whenever any test results suggest a possible unauthorized discharge, and no unauthorized discharge has been confirmed by other means, the permittee shall have five working days to retest. If second test results obtained within that period establish that there has been no unauthorized discharge, the results of both tests shall be recorded in the permittee’s monitoring records. If it has not been established within such period that there has been no authorized discharge, an authorized discharge is deemed confirmed and the permittee shall proceed.

Confirmed Unauthorized Discharge.

Any unauthorized discharge which is confirmed by any means or is presumed confirmed shall be treated as follows:

Recordable Unauthorized Discharge.

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

The discharge is from a primary containment to a secondary containment or to a rigid above ground surface covering capable of containing the discharge until clean up of the hazardous material is completed;

The permittee is able to adequately clean up and discharge before it escapes from such secondary containment or such above ground surface; but if the clean-up requires more than eight hours, it becomes a reportable discharge in accordance with subsection (2) below;

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

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

Reportable Unauthorized Discharge.

Any unauthorized discharge which is not determined to be recordable under subsection (c)(1) above, must be reported to the city manager immediately. The reporting party shall provide information to the fire chief and the city manager relating to the ability of the permittee to contain and dispose of the hazardous material, the estimated time it will take to complete containment and disposal, and the degree of hazard created. The city manager may verify that the hazardous material is being contained and appropriately disposed. Whenever the city manager determines that the permittee is not adequately containing and disposing of such hazardous materials, the city manager shall have the power and authority to undertake and direct emergency response in order to protect the public health and/or safety.

Gases at STP.

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

Clean-Up Responsibilities.

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

Indemnification.

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

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.79)

§ 6.511 Inspections and Records.

Inspections by City.

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

Permittees are not required to disclose the identity of hazardous materials protected as trade secrets to anyone other than the official designated for that purpose pursuant to Section 6.506(c)(6), except in the case of an emergency response or an unauthorized discharge related to the storage facility in which the trade secret material is contained. Therefore, the permittee may put temporary coverings over the labels of trade secret materials during the course of city inspections conducted by other than the city official so designated.

Right of Entry.

Whenever necessary for the purpose of investigating or enforcing the provisions of this article, or whenever any enforcement officer has reasonable cause to believe that there exists in any structure or upon any premises a condition which constitutes a violation of this article, the officers may enter such structure or premises at all reasonable times to inspect the same, or to perform any duty imposed upon any of the respective officers by law; provided that if such structure or premises be occupied, the officer shall first present proper credentials and request entry, and further provided, that if such structure or premises is unoccupied, the officer shall first make a reasonable attempt to contact a responsible person from such firm or corporation and request entry, except in emergency circumstances. If such entry is refused, the officer seeking entry shall have recourse to every remedy provided by law to secure entry.

Inspections by City; Discretionary.

All inspections specified herein shall be at the discretion of the city and nothing in this article shall be construed as requiring the city to conduct any such inspection, nor shall any actual inspection made imply a duty to conduct any other inspection. Furthermore, nothing in this article shall be construed to hold the city or any officer, employee or representative of the city responsible for any damage to persons or property by reason of making an inadequate or negligent inspection or by reason of any failure to make an inspection or reinspection.

Special Inspections.

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

The special inspector shall be a qualified person or firm who shall demonstrate expertise to the satisfaction of the city manager.

The special inspection report shall include an evaluation of the facilities and recommendations consistent with the provisions of this article where appropriate. A copy of the report shall be filed with the city manager at the same time that is submitted to the permittee.

The permittee shall, within 30 days of the report, file with the city manager a plan to implement all recommendations, or shall demonstrate to the satisfaction of the city manager why such recommendations shall not be implemented.

Substituted Inspections.

An inspection by an employee of any other public agency may be deemed by the city manager as a substitute for any requirement of this article.

Maintenance of Records.

All records required by this article shall be maintained by the permittee for a period not less than three years. The records shall be made available to the city manager during normal working hours and upon reasonable notice.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.80)

§ 6.512 Application for Hazardous Material Storage Permit.

Permit Required.

Any person, firm or corporation which stores any hazardous material shall obtain and keep current a hazardous materials storage permit issued pursuant to this article. One or more such permits shall be issued for a facility according to the administrative convenience of the city manager. Additional approval shall be obtained for any storage facility thereafter connected, installed, substantially modified, replaced, closed or removed, or for any charge in or addition to hazardous materials stored not in accordance with the prior approval. Notwithstanding the above, the permittee shall have 30 days to apply for an additional approval for the storing of a new or different hazardous material with the same hazard class as stated on the existing permit approvals, where much storage does not increase the hazard of fire or explosion or the hazard of the production of flammable or poisonous gas. Storage of new or different hazardous material, not meeting all of these criteria shall require the prior additional approval.

Application.

Application for a new, amended or renewed permit or an additional approval shall be made to the city manager on the form provided by the city. In addition to the information required by such form, applicant shall submit the hazardous materials management plan required by Section 6.509(a) and construction plans, if any, in conformity with Section 6.510(a). Applicant shall specify the permit quantity limit requested to be permitted for each storage facility.

Investigation.

The city manager may make such investigation of the applicant and the proposed facility or activity as the city manager deems necessary to carry out the purpose of this article.

Approval of Permit.

A permit shall not be approved until the city manager is satisfied that the storage approved adequately conforms to the provisions of this article.

Provisional Permit.

If the city manager finds that the proposal does not completely conform to the provision of this article, the city manager may approve a provisional permit, subject to conditions to be imposed by the city manager, when such a provisional permit is feasible and does not appear to be detrimental to the public interest. The applicant must be informed in writing of the reasons why a full term permit was not issued.

Temporary Permit.

A temporary permit for storage may be issued where storage does not exceed 30 days and occurs no more frequently than every six months. The containment standards of the hazardous materials management plan of the inspection and records requirements may be modified as appropriate under those circumstances for the storage of hazardous material on a nonregular temporary basis.

(g)

Issuance of Permits.

Upon the approval of a temporary, provisional, or full term permit by the city manager and upon the payment of any applicable fee, the officer shall issue and deliver the permit to the applicant. Such permit shall contain the following information:

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

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

Authorization of any and all storage facilities approved under the permit, the permit quantity limit or limits and the approved hazard class or classes for each storage facility;

The date the permit is effective;

The date of expiration;

When applicable, a designation that the permit is provisional or temporary; and

(G)

Any special conditions of the permit.

The city secretary shall keep a record of all permits issued and all conditions attached thereto.

(h)

Additional Approvals.

When a request for an additional approval is filed as required, the procedures set forth in this article for an application for a permit shall also apply to such an application for an additional approval, and shall be accompanied by an appropriate amendment to the HMMP.

If the additional approval requested is for closure of a storage facility, the permittee shall apply for approval to close such storage facility not less than 30 days prior to the termination of the storage of hazardous materials at the storage facility. Such closure shall be in accordance with a closure plan which described procedures for terminating the storage of hazardous materials in each storage facility in a manner that:

Minimizes the need for further maintenance;

Controls to the extent that a threat to public health of safety or to the environment from residual hazardous materials in the storage facility is minimized or eliminated; and

Demonstrates that hazardous materials that were stored in the storage facility will be removed, disposed of, neutralized or reused in an appropriate manner.

This 34-day period may be waived by the city if there are special circumstances requiring such waiver.

Term.

A permit may be issued for a term of two years, excepting provisional permits which may be issued for any period of time up to six months, and temporary permits which may be issued for no longer than 30 days.

(j)

Renewal.

Every application for the renewal of a permit or extension of a provisional permit shall be made at least 30 days prior to the expiration date of such permit. If a timely application for renewal has been submitted, the permit shall remain in effect until the city manager has made a determination pursuant to subsection (k) below and any administrative appeal pursuant thereto has been exhausted.

(k)

Determination.

The community development director shall make a determination with regard to any application for a permit, an additional approval, or a renewal, within 90 days from the date that the application has been completed or compliance with the appropriate provisions of the Texas Water Commission has been completed, whichever occurs later. This time limit may be further extended by mutual agreement between the city manager and applicant.

(l)

Fees.

The city shall establish fees sufficient to recover its costs in administering this article and no application need be accepted unless and until the fees have been paid.

Delinquent Fees.

All permit fees delinquent for 30 days or more shall be subject to an additional charge to be determined by city which shall be added to the amount of the fee collected.

Refund of Fees.

No refund or rebate of a permit fee shall be allowed by reason of the fact that the permit is denied or the permittee discontinues the activity or use of a facility prior to the expiration of the term or that the permit is suspended or revoked prior to the expiration of the term.

(m)

Transfer of Permit.

The permit may be transferred to new owners of the same business only if the new owners accept responsibility for all obligations under this article at the time of the transfer of the business and document such transfer on a form provided by city within 30 days of transfer of ownership of the business. Such transfer shall be subject to the approval of the city manager.

(n)

Effective Date of Permit.

No permit shall become effective until the permit has been signed and accepted by the permittee. Where the permittee is a company, firm or corporation, the acceptance must be signed by a person having the legal authority to bind the permittee.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.81)

§ 6.513 Denial of Permit.

Denial of Application.

If the city manager has cause to deny the application and determines that it would not be feasible or in the public interest to approve a temporary or provisional permit, then the city manager shall deny the application.

Grounds for Denial.

A permit shall be denied if the applicant fails to demonstrate adequate conformity to the provisions of this article. In addition, a permit can be denied for any of the grounds upon which the permit would be subject to revocation pursuant to Section 6.514.

Transmittal of Decision.

The decision to deny the application shall be given to the applicant in writing, setting forth the findings upon which the decision is based.

Appeal to City Manager.

Within 30 days from the date of deposit of the decision in the mail in accordance with Section 6.514(b)(2) the applicant may appeal in writing to the city manager or his designee setting forth with particularity the ground or grounds for the appeal.

Hearing on Appeal.

The city manager shall set a time and place for the hearing on the appeal and shall notify the applicant, in writing, of such date and time, no later than ten (10) working days from the date the appeal was received by the city manager. The hearing shall be conducted within 30 days from the date the appeal was received by the city manager.

Disposition of Appeal.

After the hearing on the appeal, the city manager may refer the matter back for a new investigation and decision, may affirm the decision, may approve a provisional permit as provided in Section 6.512(e) or may approve the application with or without conditions. The decision of the city manager shall be the final administrative determination and is subject to judicial review by the city council.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.82)

§ 6.514 Remedial Action.

Grounds for Remedial Action.

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

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

Fraud, willful misrepresentation, or any willful, inaccurate or false statement in any report required by this article;

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

Failure to correct conditions constituting an unreasonable risk or an unauthorized discharge of hazardous materials within a reasonable time after notice from a governmental entity other than city;

Failure to abide by the remedial action imposed by the city; and

Failure to pay any applicable fees.

Notice of Noncompliance.

Unless the city manager finds that an immediate suspension under subsection (d) below is necessary to protect the public health or safety from imminent danger. The city manager shall issue a notice of noncompliance:

For failure to comply with the provisions of this article, any permit conditions or any provisions of the hazardous material management plan; or

Before taking remedial action pursuant to subsection (a) above.

Such notice shall be given in writing to the permittee in person or by mail. If the noncompliance is not abated, corrected or rectified within the time specified, remedial action may be taken.

Notice of Hearing.

A notice of hearing shall be given to the permittee by the city manager in writing, setting forth the time and place of the hearing, the ground or grounds upon which the remedial action is based, the pertinent code section or sections, and a brief statement of the factual matters in support thereof. The notice shall be given at least 15 days prior to the hearing date.

Suspension Prior to Hearing.

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

Remedial Action.

If the city manager, after the hearing, finds that cause exists for remedial action, the city manager shall impose one or more of the following:

Warning;

An order to correct the particular noncompliance specified in the notice issued pursuant to impose one or more of the following:

A revocation of the permit for the facility or for a storage facility and approval of a provisional permit;

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

Modification or addition of conditions of the permit; or

(iv)

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

If the grounds for remedial action are based on and if such grounds are limited to one storage facility, the remedial action taken shall be limited to that storage facility.

Transmittal of Decision.

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

(g)

Authority After Suspension, Revocation or Expiration.

The suspension, revocation or expiration of a permit issued under this article shall not prevent any proceedings to investigate such permit, nor the instituting of any other proceeding or taking remedial action against such permittee.

(h)

Return of Permit.

In the event that a permit issued under the provisions of this article is suspended or revoked, the permittee shall forward it to the city manager not later than the end of the third business day after notification of such suspension or revocation.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.83)

§ 6.515 Hearing Procedure.

Rules.

In any hearing under this article, all parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing on the issues, to be represented by counsel, and to confront and cross-examine any witnesses against them. Any hearing under this article may be continued by the person conducting the hearing for a reasonable time for the convenience of party or a witness.

Notices.

All notices required by this article shall be sent certified mail, postage prepaid, to the applicant or the permittee at the address given for purposes of notice on the application or permit or delivered to the permittee personally.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.84)

§ 6.516 Compliance Schedule.

New Storage Facilities.

As of the effective date of this article [i.e., June 9, 1987], a hazardous materials storage permit for a facility must be contained prior to the installation or use of any new storage facility unless a building permit for such new storage facility was issued prior to such date.

The hazardous material management plan must be filed at the time of application for a hazardous materials storage permit.

Existing Storage Facilities.

A facility which has any existing hazardous materials store facilities or had obtained a building permit for such a storage facility prior to the effective date of this article, being June 9, 1987, and to which new storage facility is added, shall have one year from such effective date to file a completed application for a hazardous materials storage permit, including a monitoring plan in accordance with Section 6.509(b). The time limitation, for determination specified in Section 6.512(a) shall not apply but the applicant shall be deemed to have a provisions permit of indefinite term, until city makes such determination.

Notwithstanding the above, a disclosure statement, if applicable, must be filed within 90 days of the effective date of this article.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.85)

§ 6.517 Disclaimer of Liability.

The degree of protection required of this article is considered reasonable for regulatory purposes. The standards set forth herein are minimal standards and this article does not imply that compliance will ensure that there will be no unauthorized discharge of hazardous material. This article shall not create liability on the part of the city, an officer or employee thereof for any damages that result from reliance on this article or any administrative decision lawfully made thereunder. All persons handling, storing, using, processing, and disposing of hazardous materials within the city should be and are advised to determine to their own satisfaction the level of protection in addition to that required by this article necessary or desirable to ensure that there is no unauthorized discharge of hazardous materials.

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

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.86)

§ 6.518 Guidelines.

Guidelines approved by the city manager may be issued from time to time and shall be maintained in the office of the city secretary. Such guidelines, in the areas addressed therein, shall serve as an advisory interpretation of this article.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.87)

§ 6.519 Duties are Discretionary.

Subject to the limitations of due process, notwithstanding any other provision of this code, whenever the words “shall” or “must” are used in establishing a responsibility or duty of the city, its elected or appointed officers, employees, or agents, it is the legislative intent that such words establish a discretionary responsibility or duty requiring the exercise of judgment and discretion.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.88)

§ 6.520 Conflict With Other Laws.

Notwithstanding any other provision of this article:

A storage facility regulated by any state of federal agency will be exempted from any conflicting provision of this article.

If the storage facility is required to have a permit from the state department of health under the health and safety code, it shall be exempted from any provision of this article which is covered by the regulations adopted under the state department of health.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.89)

§ 6.521 Violations.

As provided under this article, violations of the provisions of this article shall be subject to criminal sanctions.

Remedies under this article are in addition to and do not supersede or limit any and all other remedies, civil or criminal.

A civil action may be instituted against any employer by an employee who has been discharged, demoted, suspended or in any other manner discriminated against in terms or conditions of employment, or threatened with any such revitalization, because such employee has, in good faith, made any oral or written report or complaint related to the enforcement of this article to any company official, public official or union official, or has testified in any proceeding in any way related thereto. In addition to any actual damages which may be awarded, damages shall include costs and attorney fees.

(1995 Code of Ordinances, Title IX, Chapter 95, Section 95.90)

§ 6.522 Penalty.

Any person who shall violate any provisions of this article shall be deemed guilty of a misdemeanor and upon conviction shall be punished in accordance with the general penalty provision set forth in section 1.109 of this code.

Any person, firm or corporation who intentionally or negligently violates any provision of sections 6.501 through 6.521, except that an unauthorized discharge which is recordable and recorded in compliance with section 6.509 shall not be in violation of sections 6.501 through 6.521 for purposes of this section, or fails to comply with any order issued thereunder, shall be liable for a civil penalty not to exceed $2,000 per day for each violation which shall be assessed and recovered in a civil action brought in the name of the people by the city attorney. In determining the penalty, the court shall consider all relevant circumstances, including, but not limited to, the following:

The extent of harm or potential 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;

The permittee’s record of maintenance; and

Corrective action, if any, taken by the permittee.