ORD-40-85 RELATING TO THE DISCLOSURE OF INFORMATION REGARDING THE USE STORAGE AND HANDLING OF HAZARDOUS MATERIALSORDINANCE NO. 40-
85 AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF ORANGE AMENDING THE
ORANGE MUNICIPAL CODE BY ADDING CHAPTER 15.
33 RELATING TO THE DISCLOSURE OF
INFOR-MATION REGARDING THE USE, STORAGE
AND HANDLING OF HAZARDOUS
MATERIALS.WHEREAS, hazardous materials and hazardous wastes
which are present in the community may pose acute and
chronic health hazards to individuals who live and work in the
City of Orange if exposed to such substances as a result
of fires, spills, industrial accidents or other types
of releases or emissions:
and WHEREAS, emergency service personnel in the City
of Orange have a right and need to know of the use and
dangers of hazardous materials in the community in order to plan
for and respond to potential emergencies and exposure to
such materials:
and WHEREAS, basic information on the location, type
and the health risks of hazardous materials used or stored
in the City of Orange is not now available to
firefighters,health officials, planners and elected officials:
and WHEREAS, it is further intended that the system
of disclosure set forth in this Chapter shall provide
the information essential to firefighters, health
officials,planners and elected officials in meeting their
responsi-bilities for the health and welfare of th community in
such a way that the statutory privilege of trade secrecy is
not abridge:
and WHEREAS, it is intended that this Chapter recognize
the community's right and need for basic information on the
use and disposal of hazardous materials in the City of
Orange and that an orderly system for the provision of such
infor-mation be
established.NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
ORANGE HEREBY ORDAINS AS
FOLLOWS:Section
I:The Orange Municipal Code is hereby amended by
adding Chapter 15.33 to read as
15.33.010 Definitions. For the purpose of this
Chapter, the terms listed in this Section shall be defined
as follows:
A. "Carcinogen" refers to a substance which causes
cancer. For purpose of this Ordinance, carcinogens are
those substances specified on the list developed by the
United States Department of Health and Human Services on its
Second Annual Report on Carcinogens.
B. "CAS Number" means the unique identification name
as assigned by the Chemical Abstracts Services to specific
chemical substances.
C. "Chemical Name" means the scientific designation of
a substance in accordance with the International Union of
Pure and Applied Chemistry or the system developed by the
Chemical Abstracts Service.
D. "Common Name" means any designation or identi-
fication such as code name, code number, trade names or
brand name used to identify a substance other than by its
chemical name.
E. "Disclosure Form" means the written request for
information prepared pursuant to Section 15.33.030.
F. "Handle" means to generate, treat, store or dispose
of a hazardous waste in any fash~on.
G. "Hazardous Material" means any substance or
hazardous waste as defined in Subsection (H) or (I) in this
Section, or any material designated pursuant to Section
15.33.020.
H. "Hazardous Material" means any substance or product:
1. For which the manufacturer or producer is
required to prepare a MSDS for the substance or product
pursuant to the Hazardous Substances Information and Train-
ing Act (commencing with Section 6360, Chapter 2.5, Part 1
of Division 5 of the California Labor Code) or pursuant to
any applicable federal law or regulation; or,
2. Listed in Section 25316 of the Health and
Safety Code; or,
3. Which is listed as a radioactive material set
forth in Chapter 1, title 10, Appendix B, maintained and
updated by the Nuclear Regulatory Commission; or,
ORD 40-85 2 -
4. which is listed as a legal carcinogen from the
California Administrative Code, Title 8, Subchapter 7, Group
16 and those substances specified in Item "A" of this Section;
or,
5. Which the Director of the Department of Food
and Agriculture classify as pesticides; or,
6. Which the EPA classifies as priority organic
pollutants.
I. "Hazardous Waste" or extremely hazardous waste
means any material that is identified in:
1. Sections 25115 and 25117 of the California
Health and Safety Code and set forth in Sections 66680 and
66684 of Title 22 of the California Administrative Code; or,
2. The Code of Federal Regulations, Title 40,
Sections 261.31 - 261.33.J. "
Health Official" means the Health Officer of the County
of Orange or his designated representative.K. "
MSDS" means a Material Safety Data Sheet prepared pursuant
to Section 6390 of the California Labor Code or pursuant
to the regulations of the Occupational Safety and Health
Administration of the United States Department of Labor.
L. "
Person" means an individual, trust, firm, joint stock
company, corporation, partnership, association, city,county,
district and the state, or any department or agency thereof.
M. "
Physician" means any person who holds a valid certificate
from the State of California to practice the healing
arts.N. "
SIC Code" means the identification number assigned by
the Standard Industrial Calssification code to specific types
of businesses.O. "
Storage" or "Storing" means the containment of substances
or materials in such a manner as not to constitute disposal
of such substances or materials.P. "
Use" includes the handling, processing or storage of
a hazardous substance.3 -
ORD 40-85
Q. "User" meansanyperson whousesa hazardous
substance or handles a hazardous waste.15.33.020
Designation of a Hazardous Material. A
material may be added to the list of hazardous
materials as defined in Section 15.33.0l0 upon a finding
by the Fire Chief that the material, because of its quantity, concen-
tration, or physical or chemical characteristics, poses a significant
present or potential hazard to human health and
safety or to the environment if released into the
community.A material added to the list of hazardous materials
pursuant to this Section shall be designated as either a
hazardous material or hazardous waste. The Fire Chief may use
the Uniform Fire Code published by the Western Fire Chiefs
to assist him in requiring types and amount of hazardous
materials to be disclosed.15.33.030 Filing of
a Hazardous Material Disclosure
Form. A. Any person who uses or handles a
hazardous material must semi-annually, during the months of January
and July, submit a completed disclosure form to
the Fire Department.B. Any person who, during the calendar
year,
for the first time becomes a user or handler of
any hazardous material must submit a completed disclosure form to
the Fire Department within thity (30) days of becoming a
user or handler. Thereafter, said person shall comply with the
provisions of Subsection A.C. The Fire Department
may specify in writing
such other times that the submittal of the disclosure
form may be necessary.D. Any person who fails to file
a
disclosure form within the time limits set forth pursuant to
Subsection A through D or upon notice of the Fire
Chief or his authorized representative shall pay such penalty for said late
filing as established pursuant to Section 15.33.070.
Said penalty shall be submitted with the disclosure form and
shall be in addition to regularly assessed fees if any.E.
within fifteen (l5) days of any:1.
Significant change in the use or handling
of a hazardous material.2. New use or handling
of a previously
undis-closed hazardous material.ORD 40-85 4 -
3. Change of busi-ness
address.4. Change of busi-
ness ownership.5. Change of
business name.6. Closure
of business.Any person who has filed a disclosure form
pursuant to Subsections A through D of this Section shall submit
to the Fire Department a new completed disclosure
form detailing the new use, handling or other
appropriate
information required.15.33.040 Disclosure of Informati-on.
A. Upon receipt of a disclosure form, the Fire
Department shall maintain files of all disclosure forms received.
Subject to the provision of Section 15.33.080 relating
to trade secrets,these files shall be open to the
public during
normal business hours.B. The Fire Department shall keep a
record of all persons who request access to
the hazardous materials disclosure forms. The
record shall include:1. The person's name,
address and telephone number, as determined by the
showing
of appropriate identification.2. Name and address of the
person, business or governmental agency
such person represents.3. Identification of
the specific filets)examined or requested
to be copied.4. Reason for which the
person
requests the information.15.33.050 Content of the Disclosure
Form. A. The disclosure form showing information
required of businesses shall be developed by the Fire
Department. The disclosure form shall include, but not be limited to,
requests
for the following:1. A copy of the Material Safety
Data Sheets for every hazardous substance used by the
person completing the disclosure form as required by
the Fire Department.2. CAS Number as may be required
by
the Fire Department.5 -ORD
3. SIC Code as may be required by the Fire Depart-
ment..
4. U.N. Identification Number as may be required
by the Fire, Department.
5. A listing of the chemical name and any common
names of every hazardous substance used by the person
completing the disclosure form.
6. The maximum amount of each hazardous material
disclosed in Subsection 2, which is handled or used at any
one time by the user over the course of the year.
7. Specific information on how and where the
hazardous materials disclosed in Subsection 2 is handled or
used by the user to allow fire and safety personnel to
prepare adequate emergency response plans to potential
releases of the hazardous materials.
8. The names and phone numbers of at least two
2) persons representing the business and who are able to
assist emergency personnel in the event of an emergency
involving the business during non-business
hours.9. The hazard characteristics of every
hazardous material disclosed, including, but not limited to,
toxicity,flammability, reactivity, and corrosivity as may be
required by the Fire
Department.B. Upon request, all users must provide information
in addition to that required in the disclosure form as
follows:1. To the Fire Department any
information determined by the Fire Department to be necessary to
protect the public health, safety, or the
environment.2. To any physician where the physician
determines that such information is necessary to the medical
treatment of his or her
patient.15.33.060 Exemptions from Disclosure. The
following materials, persons or entities shall be exempt, as
specified,from the disclosure requirements under this
Chapter:ORD 40-35 6 -
A. A material designated as a hazardous material by
this Chapter 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 form.
B. Hazardous materials, or substances contained in
food, drug, cosmetic or tobacco products.
C. Any person using or handling less than 500 pounds
or 55 gallons per year, whichever is the lesser, of a
hazardous material shall be exempt from the requirement of
disclosure of that use or handling unless the Fire Chief has
provided notice that the weight or volume limits of this
exemption for a specific hazardous material has been lowered
in response to public health concerns or to meet the intent
and requirements of the Uniform Fire Code (UFC).
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.
D. Hazardous materials contained solely in consumer
products packaged for use by and distributed to the general
public. However, pesticides, herbicides and ammonium
nitrate fertilizers over the required disclosure amounts are
not exempted from disclosure.
E. 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 Code of Federal Regulations, Subchapter C.
F. No MSDS shall be required for any hazardous materials
for which an MSDS is not available at the time disclosure is
required, provided, however, that such MSDS shall be submitted
to the Fire Department within fifteen (15) days after receipt
by the user of the MSDS.
G. Infectious waste generated by hospitals, medical
centers, clinics and other health care facilities that are
regulated under Title 22 of the California Administrative
Code.
7 -ORD 40-85
15.33.070 Fees ~nd ~en~lties for Late Filing. The
Fire Chief may establish ~ schedule of fees to be paid by
persons using or handling hazardous materials which is
sufficient to cover the costs to the City of administering
this Ordinance, not to exceed Fifty Dollars ($50.00) per
filing of each disclosure form. S~id Resolution sh~ll
include a schedule of pen~lties to be ~ssessed for the l~te
filing of any disclosure form.
15.33.08Q Tr~de Secrets. A. If ~ user believes th~t
a request from the pUblic for information on the disclosure
form or otherwise pursu~nt to this Ch~pter involves the
rele~se of a trade secret, the user shall so notify the Fire
Department in writing. As used herein, tr~de secret sh~ll
h~ve the me~ning given to it by Section 6254.7 of the
Government Code ~nd Section 1060 of the Evidence Code.
B. Subject to the provisions of this Section, the Fire
Department sh~ll protect from disclosure ~ny tr~de secret
coming into its possession when requested to do so in
writing by the user.
C. Any tr~de secret inform~tion reported to or other-
wise obt~ined by the Fire Dep~rtment, or any of its
representatives or employees, whose user has complied with
Subsections A ~nd B ~bove sh~ll not be disclosed to ~nyone
except:
1. To ~n officer or employee of the City, the
State of C~lifornia, or the United St~tes of America, in
connection with the offici~l duties of such officer or
employee under any l~w for the protection of he~lth, or to
contr~ctors with the City ~nd their employees if, in the
opinion of the Fire Chief, such disclosure is necessary ~nd
required for the s~tisfactory perform~nce of ~ contr~ct for
performance of work.
2. To ~ny physici~n where the physici~n deter-
mines th~t such information is necess~ry to the medical
tre~tment of his or her patient.
D. For the purpOse of this Section, fire ~nd emergency
response personnel ~nd County Health personnel oper~ting
within the jurisdiction of the City shall be considered
employees of the City.
ORD 40-85 8 -
E. Any officer or employee of the City, or former
officer or employee, who by virtue of such employment or
official position has obtained possession of or has access
to information, the disclosure of which is prohibited by
this Section, 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 Section,
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 SubsectionC.2 of this Section and who, knowing that the
disclosure of the information is prohibited, knowingly and
willfully discloses the information, shall be guilty of a
misdemeanor.
F. Information certified by appropriate officials of
the United States, as necessarily kept secret for national
defense purposes, shall be accorded the full protections
against disclosure as specified by such officials in accord-
ance with the laws of the United States.
G. Upon receipt of a request for the release of
information to the public which includes information which
the user has notified the Fire Department is a trade secret
pursuant to Subsection A of this Section, the Fire Depart
ment shall notify the user in writing of said request by
certified mail. The Fire Department shall release the
information thirty (301 days after the day of mailing said
Notice, unless, prior to the expiration of said thirty (30)
days, the user institutes an action in an appropriate court
for a declaratory judgment that said information is subject
to protection under Subsection B of this Section and/or an
injunction prohibiting disclosure of said information to the
general public.
H. The provisions of this Section shall not permit a
user to refuse to disclose information required to be
disclosed pursuant to this Chapter.
15.33.090 Information Regarding Hazardous Waste. The
Health OfficialWlll make informatlon available to fire
departments and emergency response personnel upon request,
of hazardous wastes, extremely hazardous wastes, underground
tanks, when the information is currently collected and
processed by the Health Official.
9 -ORD 40-85
l5.33.~00
ldentificatiQn. When required by the Fire Chief, areas containing
hazardous materials shall be identified.Such identification may
include signs, color coding, posting lists of materials
and MSDS, or other notice as may be deemed necessary.15.
33.110
On Site Utilization of MSDS and Occupancy Floor Plans. When
required by the Chief, any person submitting a disclosure form
may be required to install an approved key box for emergency
utilization of MSDS, floor plans, site plans, and access
keys. The location of the required key box shall be
approved by the Fire Chief.Section ll:If
any section,
subsection, sentence, clause or phrase of this Ordinance
is for any reason held to be invalid or unconstitutional by a
decision of any court of competent jurisdiction, such decision
shall not affect the validity of the remaining portions
of the Ordinance. The City Council hereby declares that
it would have passed this Ordinance and each and every
section, subsection, sentence, clause or phrase not declared
invalid or unconstitutional without regard to whether
any portion of the Ordinance would be subsequently declared invalid
or unconstitutional.Section lII:A
summary of
this Ordinance shall be published and a certified copy of
the full text of this Ordinance shall be posted in the
Office of the City Clerk at least five (5)days prior to
the City Council meeting at which this Ordinance is to be
adopted. A summary of this Ordinance shall also be published once within
fifteen (15) days after this Ordinance's passage in the
Orange City News, a newspaper of general circulation, published and
circulated in the City of Orange.The City Clerk
shall post in the Office of the City Clerk a certified copy of
the full text of such adopted Ordinance along with the
names of those City Council members voting for and against
the Ordinance in accordance with Government Code Section 36933.
This Ordinance shall take effect thirty 30) days from
and after the date of its final passage.ADOPTED this 24
th 1985.ATTEST:cmf'2{:
f!;!
Xj)~f Orange ORD 40-85 -
10 -
STATE OF CALIFORNIA l.
COUNTY OF ORANGE 1 ss
CITY OF ORANGE 1
I, MARILYN J. JENSEN, City Clerk of the City of Orange,
California, do hereby certify that the foregoing Ordinance
was introduced at the regular meeting of the City Council
held on the 27th day of Auqust , 19~, and
thereafter at a regular meeting of said City Council duly
held on the 24 th day of Spntpmhpr , 19!15- was duly
passed and adopted by the following vote, to Wlt:
AYES:COUNCILMEN:SMITH, BARRERA, MAYOR BEAM, PEREZ, BEYER
NOES:COUNCILMEN: NONE
ABSENT:COUNCILMEN: NONE
1nn///:AeJ ~ -W~City Clerk of e ty of Orange
11 -ORD 40-85