Ordinance 1244i:.
ORDINANCE NO. 1244
AN ORDINANCE OF THE CITY OF CUPERTINO AMENDING
CHAPTER 9.12, HAZARDOUS MATERIALS
STORAGE, OF THE CUPERTINO MUt7ICIPAL CODE
WHEREAS, a number of facilities in Cupertino store hazardous
materials in the normal course of conducting their..operations;
and
WHEREAS, the public health, safety, and welfare of the
citizens of Cupertino may be endangered by the improper storage
of such hazardous materials= and
WHEREAS, it is necessary for protection of all citizens that
the storage of hazardous materials be regulated;
NOW, THEREFORE, BE IT ORDAINED that the City of Cupertino
hereby amends the Chapter 9.12 of the Cupertino .Municipal Code,
Hazardous Materials Storage, to read as follows:
CHAPTER 9.12 ..:.
HAZARDOUS MATERIALS STORAGE
Sections: _ _ ... ...
_ _ ; t:
Article I. General Provisions
y ,~. P,:. ~ ..
9.12.010 Purpose ,, ." .:i.'
9.12.011 General Obligation - Safety and Care ...,. <,~ ~~, ,,.
9.12.012 Specific Obligation
9.12.013 Definitions .._...
9.12.014 Professional Assistance for City Determinations .;
Article II. Materials Regulated
9.12.020 Materials Regulated ,..
9.12.021 Exclusions
9.12.022 Underground Tanks
Article III. Containment Standards 7 E) ~--.. ,
9.12.030 Containment of Hazardous Materials ~.
9.12.031 New Storage Facilities „ ,,.
9.12.032 Existing Storage Facilities ,7I r>~ ,
9.12.033 Out of Service Storage Facilities _ .` .
9.12..034 Monitoring
9.12.035 Maintenance, Repair or Replacement
9.12.036 Handling
9.12.037 Secured Facilities r; „,,
9.12.038 Emergency Equipment t{~.:,,
9.12.039 Posting of Emergency Procedures
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• • i
9.12.102 Notice of Hearing
9.12.103 Suspension Prior to Hearing-
9.12.104 Remedial Action
9.12.105 Transmittal of Decision
9.12.106 Authority after Suspensions RevocatYon'or' Expiration
9.12.107 'Return of Permit " .'`°
Article XI. Hearing Procedure ' "
.;,. ; t
9.12.110 Hearing Rules ' `'~-''
9.12.111 Hearing Notices '~'~"
Article XII. Enforcement -_- ~ '' f""
9.12.120 Criminal Penalties _ ' _.
9.12.121 Civil Penalties ~j"
9.12.122 Civil Action for Retaliation ~ • ., t:
9.12.123 Remedies not Exclusive "" .,_ ~•~
r=
Article XII I . Miscellaneous `'• , i t = v , r _,.
;-
9.12.130 Disclaimer of Liability ,y 4, ..,
9.12.131 Guidelines
9.12.132 Duties are Discretionary °'-~ ~' °°"`~„"" :c~"3tar
9.12.133 Conflict with Othez Lawa `{~~~
9.12.134 Severability
_ ..!;~'3'a;~u~7 .~
Article XIV. Compliance" Schedule: `" z ~~~ :r~e:~
9.12.140 Effective Date '~ , ~ '
9.12.141 Time Table for Initial Compliance ~ ~ ~t .,
Article I ~" ~`
GENERAL PROVISIONS `
9.12.010 Pur oae
The purpose of this chapter 'is the `protection.of
health, life, resources, and property through predention and
control of unauthorized discharges of hazardous materials.
9.12.011 General Obligation - Safety and Caze
A. No person, firm or corporation shall- cause, suffer, or
permit the storage of hazardous materials:
1. In a manner which violates a pzovision of this
chapter or any other local, federal, or state statue,
code, rule, or regulation relating to hazardous
materials; or
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ORDINANCE NO. 1244
AN ORDINANCE OF THE CITY OF CUPERTINO AMENDING
CHAPTER 9.12, HAZARDOUS MATERIALS
STORAGE, OF THE CUPERTINO MUNICIPAL CODE
WHEREAS, a number of facilities in Cupertino store hazardous
materials in the normal coarse of conducting their opesations;,.:::
and
WHEREAS, the public health, safety, and welfare of the -.,
citizens of Cupertino may be endangered by the improper storage
of such hazardous materials] and.
WHEREAS, it is necessary for protection of all citizens that ,
the storage of hazardous materials be regulated;
NOW, THEREFORE, BE IT ORDAINED that the City of Cupertino'
hereby amends the Chapter 9.12 of the Cupertino ..Municipal Code,
Hazardous Materials Storage, to read as follows:
CHAPTER 9.12 ,. .,.
HAZARDOUS MATERIALS STORAGE ~,
Sections: x. ~ ~_
r. F:
Article I. General Provisions
9.12.010 PuzpOSe _ ;fir q,~;
9.12.011 General Obligation -Safety and Care ~:,_„ ~;~~ ,,.,
9.12.012 Specific Obligation ,, ;~,., ,
9.12.013 Definitions ,_, ,~,._
9.12.014 Professional Assistance for City Detezminations'.
Article II. Materials Regulated ,., a; i
9.12.020 Materials Regulated _. ~,
9.12.021 Exclusions
9.12.022 Underground Tanks
Article III. Containment Standasds rt, ...
9.12.030 Containment of Hazardous Materials ,_ _.
9.12.031 New Storage Facilities x,,, 4~f~ „ ,
9.12.032 Existing Storage Facilities ; <? ,wa :.r> , ,
9.12.033 Out of Service Storage Facilities .,
9.12.034 Monitoring
9.12.035 Maintenance, Repair oz Replacement
9.12.036 Handling
9.12.037 Secured Facilities ;. ;,~ ~ , ~~.~l, .,
9.12.038 Emergency Equipment ,•:i~*c~.~ 7i'sL. i
9.12.039 Posting of Emergency Procedures
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Article IV. Hazardous Materials Management Plan
9.12.040 Hazardous Materials Management Plan (HMMP)
9.12.041 Standard Form HMMP
9.12.042 Short Form HMMP - Minimal Storage Site
Article V. Hazardous Materials Inventory
9.12.050 Hazardous Materials Inventory Statement - ~ ~ `L''
9.12.051 Information Required ~~'_>
9.12.052 Public Records
9.12.053 Trade Sec=ets - ~"'`~
Article VI. Responsibility ~~-
9.12.060 Reporting Unauthorized Discharge- - fy'%~~~''~
9.12.061 Cleanup Responsibility _~= ~-
9.12.062 indemnification
3 .. ,.,
Article VII. Inspections and Records :~':~` =
.. -, .. < . e.'r ~., z ... ,
9.12.070 Inspections by Cupertino
9.12.071 Inspections by Permittee
9.12.072 Special Inspections
9.12.073 Substituted Inspections _
9.12.074 Maintenance of Records
Article VIiI. Application for Permit
9.12.080 . ..
Permit _.
9.12.081 Application for Permit ~ '~ `e'
9.12.082 Investigation - - ~ - -- _-~~
9.12.083 Approval of Permit--Provisional Permits ' - '-~~° " •`'
9.12.084 Issuance and Transfer of Permits--Temporary Permits ~ °--
9.12.085 Additional Approvals
--- 9.12.086 Effective Date and Term
9.12.087 Renewal -
9.12.088 Determination
9.12.089 Fees ~•- ~-
i~ ..
~
Article IX. Denial -~ ~- - '~~•~~' ~~^
`-
9.12.090 Denial of Application -
9.12.091 Grounds for Denial
9.12.092 Transmittal of Decision >- ~~-~a..:•
9.12.093 Appeal to City Manager or Designee ~ •_-~
9.12.094 Hearing on Appeal ~ -• _.:x `c`_:,.'
9.1?.095 Disposition of Appeal s - -
Article X. Remedial Action`' '
9.12.100 Grounds for Remedial Action _ °--
9.12.101 Notice of Noncompliance = - -
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9.12.102 Notice of Hearing
9.12.103 Suspension Prior to Hearing
9.12.104 Remedial Action
9.12.105 Transmittal of Decision ,, ,. ;: ,
9.12.106 Authority after ,Suspension, RevocAtion os Expiration
9.12.107 "Return of Permit
Article XI. Hearing Procedure '
9.12.110 Hearing Rules ~ ~~~,,-~.
9.12.111 Hearing Notices
Article XII. Enforcement ~ =~~' ~~~~~~~ ~~~
r: ^. ..~t
9.12.120 Criminal Penalties _ ~s.w
9.12.121 Civil Penalties ~ {
9.12.122 Civil Action for Retaliation '~ _
9.12.123 Remedies not Exclusive
Article XIII. Miscellaneous `` t
9.12.130 Disclaimer of Liability
9.12.131 Guidelines ' `' ~ -`'
9.12.132 Duties are Diacretionar ''~'~ ~' ""~~~
9.12.133 Conflict with Other Laws ~ `c:~<s3
9.12.134 Severability .
Article XIV. Com liance Schedule "~ '~~~`n{
p .. .,.7,.~ 7~-~-~
9.12.140 Effective Date ~ ~~~
9.12.141 Time Table for Initial Compliance ~ ,
Article I " "
GENERAL PROVISIONS
9.12.010 Pur ore
The purpose of this chapter is the p=ot'ection of
health, life, resources, and property through prevention and
control of unauthorized discharges of hazardous materials.
9.12.011 General Obligation - Safety and Care
A. No person, firm or corporation shall cause, sy~ffer, or,
permit the storage of hazardous materials:
1. In a manner which violates a provision -of this
chapter or any other local, Federal, or state statue,
code, rule, or regulation relating to hazardous
materials; or
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2. In a manner which causes an unauthorized discharge
of hazardous materials or poses a significant risk of
such unauthorized discharge.
B. Cupertino shall have discretion to exempt an applicant '
from any specific requirement of this Chapter,. other -than
the requirement for secondary containment in underground
storage facilities, except as provided in Section 9.12.031, '
C4, 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
Chapter for protecting public health, safety, and welfare.:
9.12.012 Specific Obligation
A. Any person, firm, or corporation which stores any
material regulated by Section 9.12.020 which is not excluded
by Section 9.12.021 shall obtain acid keep curren£ a
Hazardous Materials Storage Permit.
B. All such hazardous materials shall be contained in
conformity with Azticle III of this Chapter.
C. The storage of such hazardous materials shall be in
conformance with the approved Hazardous Materials Management`"
Plan.
D. Cupertino shall apply for, and the officer shell
consider and is$ue where appropriate, a permit, in
conformity with this Chapter, for- the storage of hazardous
materials by Cupertino in as underground storage tank, as
those terms are defined in Chapter 6.7 of Division 20 of the
California Health and Safety Code, wherever the Cupertino's
storage facility may be situated. Any other city, county,
district or department, or agency of the state which stores
any hazardous substance, in an underground storage tank, as
those terms are defined in Chapter 6.7, in Cupertino without
a permit meeting the requirements of said Chapter 6.7 issued
by such other local agency, shall obtain and keep current a
permit from Cupertino which conforms at a minimum to Section
25284 and 25284.1 of the Health and Safety Code.
9.12.013 Definitions
Unless otherwise. expressly stated, whenever used in
this Chapter, the following terms shall have the meanings
set forth below:
A. Abandoned , when referring to a storage facility,;
means out-service-and not safeguarded in compliance with
this Chapter.
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B. Facility means a building or buildings, appurtenant
structures,. and surrounding land area used by a single
business. entity at a single location or site.
C. Hazard class means Explosives A, Explosives B,
Explosives C, 8 sating agents, Flammable solids, Oxidizers,
organic peroxides., Corrosive. materials,. Elammable_gaaes,
Nonflammable gases, Poisons A, Poisons B, Irritating
materials,. Etiologic agents, Radioactive materials, Other::.
Regulated Materials (ORM) A, g, C, D and E. For purposes of
this Chapter, .the U.S. Department of Transportation (DOT)
definitions in 49 CFR Part 173 as amended shall be utilized;.:
however, whenever the definitions in 49 CFR 173 refer to
transportation or hazards associated with transportation,
they shall be deemed to refer to storage or other regulated
activity under this Chapter.
D. Hazardous material means any material which is '-
subject to regu a n on pursuant to Part II of this Chapter.
A mixture shall be deemed to be a hazardous material if it
either is a waste and contains any material regulated
pursuant to Part II of this Chapter, or is a nonwaste and
contains one percent (li) by volume or more of any material_ ,
regulated 'pursuant to Part II of this Chapter.
E. Officer means the employee assigned by Cupertino to'
admann a-~this Chaptez or any designee of such employee.
F. Permit means any Hazardous Materials Storage Permit
issuet-~suant to this Chapter as well as any additional
approvals thereto..
G. Permit uantit limit means the maximum amount of
hazardous materia t at 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 Chapter.
H. Permittee means any person, £irm, or corporation to
whom a permit is issued pursuant to this Chapter and any
authorized representative, agent or designee of such person,
firm, or corporation.
i. P~~i~~es means pipeline systems which are used in
connect~.~ with the storage of hazardous materials
exclusively within the confines of a facility and which are
not intended to transport hazardous materials in interstate
or intrastate commerce or to transfer hazardous materials in
bulk to or fzom a marine vessel.
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J. Pzimar containment means the first level of
contaTment, i.e. t e nside portion of that container which
comes into immediate contact on its inner surface with the
hazardous material being contained.
K. Product-ti ht means impervious to the hazardous
mater a w c s contained, or is to be contained, so as to '
prevent. the seepage of the hazardous material froa- ehe
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.
L. Secondar containment means the level of
coots nment externs to and separate from. the primary
containment.
M. Sin lei-walled means construction with walls made
of but one the ckness of material. Laminated, coated, or
clad materials shall be considered as single-walled.
N. Storage facility means any one or combination of
tanks, sumps, wet oors, waste-treatment facilities, pipes,
vaults or other portable or fixed containers, used, o=
designed to be used, for the storage of hazardous materials
at a facility.
O. Sum means a pit or well in which liquids collect....
P. Unauthorized dischar a means any release or
emiss ono any Bazar ous material which does not conform'to
the provisions of this Chapter, unless such release is in
accordance with the release regulations of the Bay-Area Air
Quality Management District and California Air Resources
Board, -.with a National Pollutant Discharge Elimination-
System Permit, with waste discharge requirements established
by the Regional Water Quality Control Board pursuant to the
Porter Cologne Water Quality Act, or with local sewer
pretreatment requirements for Publicly Owned Treatment
Works.
Q. Wet floor means 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.
9.12.014 Professional Assistance for City Determinations
Whenever the approval or satisfction of Cupertino
may be required in this Chapter for a design, monitoring,
testing or other technical submittal by an applicant or
permittee, Cupertino 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 Cupertino, for the purpose of
evaluating and rendering a professional opinion respecting the
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adequacy of such ~bmittal to achieve the poses of this
Chapter. Cupertino shall be entitled to rely on such evaluation
and/or opinion of such engineeer, chemist or professional
consultant in making the relevant determinations provided for in
this Chapter.
Article II
MATERIALS REGULAT&D
9.12.20, Materials Regulated
The: materials regulated by this Chapter, shall
consist of the-following: (See footnote):
1. Any material listed as a hazardous and/or
extremely hazardous material o- hazardous and/or
extremely hazardous waste in Sections 66680 and 66685
of Title 22 of the California Administrative Code, as
amended, whether such material is stored or handled in
waste or nonwaste form; or
2. Any material which is listed on the list of
Environmental Protection Agency (EPA) pollutants, 40-
Code of Federal Regulations, Section 401.15, as
amended; or
3. Any material which is classified by the Nations L
Fire Protection Association (NFPA) as either a
flammable liquid, a Class II combustible liquid or a
Class IIIA combustible liquid; or
i
4. Any- material which has ,been determined o 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 the
California Department of Health Services, 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
5. Any. material which has been determined by the '
party storing or handling 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 purposes of this Chapter.
Footnote: Section 9.12.020 does not include the List of
Hazardous Substances developed by the Director of
the Department of Industrial Relations pursuant to
the .provisions of the Hazardous Substances
Information and Training Act because this list was
filed with the Secretary of State too late to be
fully considered and evaluted for incorporation in
this Ordinance. A follow-up task force is
studying the incorporation of this list.
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9.12.021 Exclusions
This chapter does not apply to the following:
A. Certain Elemental Metals
The following elemental -metals. included with the
purview of Section 9.12.020 shall not,. be copaidered ,
hazardous materials for purposes of ths`Chapter'=unless they"~''
are stored in a friable, powdered or finely divided state:
Ber Ilium, Cadmium , Chromium, Co er , Lead- , Nickel
an S veL
B. Retail Products
-Hazardous materials contained solely in consumer
products packaged for distribution to, and-use'by,''the
general public or commercial products used at"`the tacility
solely for janitorial or minor maintenance'purposea such as
paint thinner or wax strippers.
C. Work Station
Hazardous materials located at a work station` in a
quantity reasonably required for use as determined by
Cupertino under the circumstances.
D. Exemption
Cupertino shall exempt any material from the
requirements of this Chapter where it has been demonstrated
to the satisfaction of Cupertino 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.
9.12.022 Undezground Tanks
Notwithstanding Section 9.12.021 above and in addition to
those materials regulated pursuant to Section 9.12.020 above, a
permit shall be required for the storage in an underground
storage tank as defined by California Health and Safety Code
25280 (m), of any material defined as a hazardous substance,'in
accordance with California Health end Safety Code Section 25280
(c) .
Article III
CONTAINMENT STANDARDS
9.12.030 -Containment of Hazardous Materials
No person, firm or corporation shall- store any
hazardous materials regulated by this Chapter until a permit or
approval has been issued pursuant to this Chapter. No permit or
approval shall be granted pursuant to this Chapter unless-permit
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applicant demonstr~s to the satisfaction of ~ertino, by the
submission of appropriate plans and other infor ation, that the
design and construction of 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 Cupertino.
Cupertino shall have the discretion to exempt an applicant from
any specific requirement, except that the discretion with regard
to undezground storage facilities shall be exercised in
accordance with Subsection 9.12.021.C, or to impose reasonable
additional. or different requirements in order to better secure
the purpose and general obligation of this Chapter for
protection of public health, safety, and welfare. The
guidelines approved pursuant to Section 9.12.131 shall serve as
an advisory interpretation of the provisions of this Article
addressed in such guidelines.
9.12.031 New Storage Facilities
A. No person, firm or corporation shall construct or
install any new storage facility until a permit or approval
has been issued pursuant to this Chapter.
S. Monitoring Capabilit
All new storage facilities intended for the storage of
hazardous materials which are liquids or solids at standard
temperature and pressure (STP) shall be designed and
constructed with a monitoring system capable of detecting
that the hazardous material stored in the primary
containment has entered the secondary containment. (See
Footnote.) Visual inspection of the primary containment is
the preferred method; however, other means of monitoring may
be required by Cupertino 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.
C. Containment Requirements
Primary and secondary levels of containment shall be
required for all new storage facilities intended~foz the
storage of hazardous materials which are liquids os solids
at standard temperature and pressure (STP), unless
specifically herein exempted by Cupertino. (See Footnote.)
1. All pzimary containment shall be product-tight.
Footnote: It is anticipated that a follow-up task force will
develop construction and monitoring standards for
gases.
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2. Secondary containment:
a. 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 6e' '
capable of containing hazadous maiterials
- discharged from a primary container fora period -
of time equal to or longer than the maximum
anticipated time sufficient to'allow recovery of '
the discharged hazardous material.
b. in the case of an installation with one
primary container, the secondary containment shall
be large enough to contain aC least 110.8 of .the - '
volume of the primary container.
c. In the case of a storage facility with
multiple primary containers, the secondary
container shall be large enough to contain 1508 of
the volume of the largest primary container placed
in it, or 108 of the aggregate internal volume of
all primary containers in the storage facility,
whichever is greater.
r-d. If the storage facility is open to rainfall; '"
then-the secondary containment must be able to
;. additionally accommodate the volume of s
twenty-four (24) hour rainfall as determined by a
.:.one hundred (100) year storm history.
3. Laminated, coated, or clad materials shall be
considered single walled and shall not be construed to
fulfill the requirements of both primary and secondary
containment.
4. Variance -Seconder Containment A variance
from the requirement or secondary containment in an
underground storage facility may be granted upon a
written finding by the officer issuing the permit,
which. has been reviewed and approved by the City
Council, that based on the special circumstances
applicable to the specific storage facility only, and
not a class or category oP storage facilitie3: -
a. The requirement of secondary containment
creates an unusual and particular hardship; and
b. An equivalent or superior degree of -
protection is provided by the proposed alternati've'-
and -the proposed alternative- has been
appropriately so certified in accordance with
Section 9.12.014.
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c. The • proposed alternative ~as been
appropriately certified as providing an equivalent
degree of protection, by an independent consultant
retained in accordance with Section 9.12.014, or
has been specified as potentially appropriate for
a variance in the guidelines approved pursuant to
Section 9.12.131.
i. The City Council shall consider the
variance, at a public meeting, at which oral
.or written presentation on the matter may bs
made. A notice which includes a statement
-that a variance from secondary containment
for hazardous materials will be considered,
and which apecifles the address of the-
..facility seeking the variance, and the time -
`:and place of the meeting shall be given in -
the following manner:
ii. The City Clerk shall cause a copy of
the notice to be published once in a
newspaper of general circulation in .:
Cupertino, not less than ten (10) days prior
to the meeting; and
iii. The City Clerk shall cause a copy of
the notice to be mailed at least ten (10)
days prior to the meeting to any party who
files a written request with the City Clerk,
;~o~c mailed notice of meetings at which. such
variance is to be considered. Such written
sequest for notice shall be valid for one ,
y ,.,,,,year from the date on which it is filed
unless a renewal request is Eiled. Renewal
request for such mailed notices shall be
filed on or before April 1st of each year.
iv. Variance - Construction and Monitoring
Re uirements Underground storage tanks may
e grante a variance from the standards for
construction and monitoring set forth in this
-Part, other than from the requirement for
double containment, only upon a written
finding by the officer issuing the parmit
that the applicant has demonstrated by clear
and convincing evidence:
(a) That because of special circumstances not
generally applicable to other. property or_
facilities, including size, shape, design,
topography, location, or surroundings, the strict;
application of the standards of this Chapter would
be unnecessary to adequately protect the soil and
beneficial uses of the waters of the state from an
unauthorized release; or
(b) That strict application of the standards of
this Chapter would create practical difficulties
not generally applicable to other facilities or
property; and that the proposed alternative will
adequately protect the soil and beneficial uses of
the waters of the state from an unauthorized
release.
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D. Overfill Protection
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.
E. Separation of Materials
Materials that in combination may cause afire 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.
F. Drainage System
Drainage of precipitation from within a storage
facility containing hazardous amterials which are liquids or
solids at STP shall be controlled in a manner 'approved by
Cupertino so as to prevent hazardous materials from being
discharged. No drainage system will be approved unless the
flow of the drain can be controlled.
9.12.032 Existing Storage Facilities
Any storage fac111ty in existence ae of the effective
date of this Chapter, or any storage facility for which a
building permit was issued prior to the effective date of this
Chapter, which does not meet the standards of Section 9.12.031,
may be permitted pursuant to this Chapter as long as it is
providing suitable storage for hazardous materials. 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
Cupertino as set forth herein. (See Footnote.)
A. A monitoring plan for each such storge facility
containing hazardous materials which are liquids or solids
at STP, shall be submitted to Cupertino as part of the
Hazardous Materials Management Plan.
B. 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
semiannual or more frequent basis may be approved by
Cupertino.
Footnote: It is anticipated that a follow-up task force will
develop construction and monitoring standards for
gases.
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C. Alternative method(s) of monitoring may include but are
not limited to: pressure testing of piping systems,
groundwater monitoring well(s) which are dowgradient and.
adjacent to the storage facility; vapor analysis within the
well(s) where appropriate; and analysis of the soil
boring(s) at the time of initial installation of the
well(s). The number of well(s), depth of well(s), and ,
sampling frequency shall be approved by Cupertino.
D. Such monitoring devices and methods, as approved by ;
Cupertino, shall be installed and operating with six (6)
months of the issuance of a provisional permit in accordance:
with Section 9.12.083.B and Section 9.12.141.8.1. Cupertino
may grant an extension of this compliance date; however,
such extension shall not exceed one (1) additional year.
The full term permit may be issued when compliance with this
subsection has been achieved.
E. The continued use of, and permit approval for, existing
storage facilities is subject to review and modification ar
termination by Cupertino whenever there has been ..any
unauthorized discharge. It shall also be reviewed by
Cupertino each time the permit is renewed.. In determining
whether continued storage in such storage facility is
suitable, Cupertino shall consider the age of the storage
facility, the methods of containment, the methods of
monitoring, the feasibility of the required retrofit, and
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 Chapter.
F. Existing storage facilities which are not appzoved in
accordance with this Section must be upgraded to comply with
this Chapter or be closed in accordance with Subsection
9.12.033 below within one (1) year of the decision not to
issue a full term permit. An extension of time for
compliance with this subsection, not to~ exceed one (1)
additional year, may be granted by Cupertino.
9.12.033 Out of Service Storage Facilities
A. No storage facility shall be abandoned.
B. Storage. facilities which are temporazily out of ,
service, and are intended to be returned to use, must-
continue to be monitored and inspected.
C. Any storage facility which is not being monitored and
inspected in accordance with this chapter must be closed or
removed in a manner approved by Cupertino in accordance with
Section 9.12.085.
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D. Any pezson, firm or corporation having an interest,
including a leasehold interest, in zeal property and having
reason to believe that an abandoned storage facility is
located upon such property shall make a reasonable effort to
locate such storage facility within six (6) months of the
effective date of this Chapter.
E. 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
ninety (90) days of its discovery. A closure plan shall
conform to the standards specified in Section VIII.OB.
9.T2.034 Monitoring
A. Monitorin Methods. Monitoring methods shall
incl~e at east one 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 containment shall be
provided. Visual inspection of the primary containment is
the preferred method; however, other means of monitoring may
be requized by Cupertino. Where secondary containment may
be subject to the intrusion of water, a means of monitoring
for such water shall be provided.
Whenver monitoring .devices are provided, they shall,
where applicable, be connected to attention-getting visual
and/or audible alarms.
8. Monitozin Testin and Ins action Every :
perm ttee un er t is apter sha provide testing,...
monitoring (if applicable), and inspections in compliance
with the Hazardous Materials Management Plan and shall
maintain records adequate to demonstrate compliance
therewith.
9.12.035 Maintenance, Repair or Replacement
A. Permittee will 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.
B. 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 Cupertino .and..
approved in accordance with Section 9.12.085 prior to the..
initiation of such work.
C. Permittee may make emergency repairs to a storage
facility in advance of seeking an additional permit approval
whenever an immediate repair is required to psevent or
contain an unauthorized discharge or to protect the
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~ integrity of thr containment. However, wi~in five (5)
working days after such emergency repairs have been started,
j permittee shall seek approval pursuant to Section 9.12.085
i, by submitting drawings or other information adequate to
describe the repairs to Cupertino.
D. Replacement of any storage facility for hazardous
materials, which are liquids os solids at STP, must be in
accordance with the new installation standards of Section
9.12.031.
9.12.036 Handling
A. Dispensing and mixing of hazardous materials must not
be done in such a manner as to substantially increase the
risk of an unauthorized discharge.
B. 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 result in an unauthorized discharge.
9.12.037 Secured Facilities
Access- to the storage .facility shall be secured by.;
means of fences and/or locks. Ths access to the storage;
facilities shall be kept securely locked when unattended... -
9.12.038 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.
9.12.039 Posting of Emergency Procedures
Simplified emergency procedures shall be posted
conspicuously in locations where hazardous materials are
stored. -
Article IV
HAZARDOUS MATERIALS MANAGEMENT PLAN
9.12.040 Hazardous Materials Management Plan
Each applicant for a permit pursuant. to this Chapter.
shall £ile a written plan, for Cupertino's approval,. to be
known a a Hazardous Materials Management Plan (HMMP), which
shall demonstrate the safe storage and handling of hazardous
materials. The HMMP may be amended at any time with the _.
_15_
consent of Cupertino. 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 Cupertino has made an
independent determination of the adequacy of that which is `°
described in the HMMP.
9.12.041 Standard Form HMMP
The standard form Hazardous Haterials''Management PYan"•
must be submitted unless the facility qualifYes' ae a'minintal''
storage site under Section 9.12.042. The HMMP shall include the
following: .. ~ ,- .~
A. Facility Description
1. General Information
The 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.
2. General Facility Description
The HMMP shall contain a map drawn at a legible'
scale and in a format` and' detail determined``~~by,
Cupertino. 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.
Cupertino may also require information as to the' -
location of wells, flood plains, earthquake faults,`
surface water bodies, and/or general land uses
(schools, hospitals, institutions, residential areas)
within one mile of the facility boundaries.
3. Facility Storage Map
a. 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 ensuting the suitable and secure
storage of haaardous materials and for the protection'
and safety of emergency response personnel of
Cupertino. Cupertino shall take reasonable precautions
to ensure the confidentiality of the information
provided pursuant to this subsection.
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• i •
The Facilities Storage Map shall indicate the
location of each hazardous materials storage facility,
including all interior, exterior, and underground
storage facilities, 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 puzpose of the other areas
within each facility.
Fox 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 Ydentified in a coded manner (together with
its key) end not in a manner which would reveal trade
secret information:
(i) a floor plan to scale and the permit
quantity limit;
(ii) for each nonwaste hazazdous material
which is stored in a quantity greater than
the quantities specified in Section
9.12.051.A, the general chemical name,
common/trade name, major constituents for
mixtures, United Nations (UN) or North
America (NA) number, if available, and
`physical state. For each waste hazardous
material stored in any quantity within the
storage facility, the pzesence of wastes
-shall also be indicated;
(iii) for all hazardous matezials, including
wastes, stored in each storage facility, the
hazard class or classes and the quantity,
'range for each such class, aggregated within,
each storage facility, in the following
• 'ranges:
Quantity Range Number Range Amounts
1 Up to and including 500 pounds;
of solids, 55 gallons for
liquids, and 200 cubic feet at "`
3TP for compressed gases;
- 2 - ' ~ Hetaeen 500 and 5, 000 pounds 'for '''
solids, 55 and 550 gallons for
-- liquids, and 200 and 2,000 cubic
feet at STP for compressed
gases;
3 -~ ' Between 5,000 and 25,000 pounds "`
for solids, 550 and 2,750
gallons for liquids, and 2,000
to 10,000 cubic feet at STP for
compressed gases;
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4 Between 25,000 and 50,000 pounds
for solids, 2,750 and 5,500
gallons for liquids, and 10,000
and 20,000 cubic feet at STP for
compressed gases;
5 c. ~, More than 50,000 pounds for
.,, ,,solids, 5,500 gallons for ,;
.,
liquids, and 20,000. cubic feet ..
at STP for compressed gases;
(iv): :for material's not regulated under this.
`; ,,,C~apter, but regulated under the Uniform .Fire
<`.Code, such as radioactives or cryogens, or,;
~~,for materials stored -in storage facilities..
exempted by Sections 9.12.133.A and..
9.12.133.8, Cupertino may require that the
hazard. class or classes and the quantity
range of each such hazard class,. using the
quantity ranges listed in subsection (iii)
...above, be pcovided;
(v) 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.
b. Due to the threat to the security. of the
facility posed by the disclosure of the information in
the .Facility. Storage Map, this information shall be
maintained by Cupertino for law enforcement purposes
only and shall not be made public. Public disclosure
of this information could endanger the security of the
facility or present a clear danger to public health and
safety. Cupertino shall not disclose thisinformation
to the public without the consent of the permittee or
permit applicant unless ordered to do so by a court of-
competent jurisdiction. 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 Cupertino to permittee or
permit applicant. However, Cupertion shall be under no
duty to prevent disclosures where there has been any
unauthorized discharge of hazardous materials stored in
storage facilityes) shown on such map or where such
disclosure arises out of any official emergency
response. relating to the storage faciliti(s).
c. The Facility Storage Map shall be updated
annually or whenever an additional approval is required
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£or the facility or whenever the Hazardous Materials
Inventory Statement is required to be amended pursuant
to Section 9.12.050.
B. Hazardous Materials Inventory Statement
A Hazardous Materials- Inventory Statement shall' 'be
filed in accordance with Azticle V of this Chapter.
C. 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,a`o,r`
poisonous gas, or the detezioratioR of the primary' or,
secondary containment.
D. 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 will be conducted by
the permittee.
E. Recordkeeping Porms
The HMMP shall contain an inspection check sheet or log
designed to be used in conjunction with routine
inspections. The check sheet or log shall provide for the
recording of the date and time of inspection and, 'for
monitoring activity, the date and time of any- corrective
action taken, the name of the inspector, and the
countersignature of the designated safety official 'as
designated in the HMMP.
F. Emergency Equipment
The HMMP shall describe emergency equipment
availability, testing, and maintenance.
G. Variation in Information
1. Additional information may be required fox the HMMP'
where such information is reasonably necessary to meet the
intent of this Chapter.
2. Requirements for information in the HMMP may be waived`
where such information is not reasonably necessazy to meet
the intent of this Chapter.
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3. Whenever 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.._agoncy ,.
regulating hazardous materials; such plan may be Submitted
to Cupertino in -lieu of such component(s). The City.-may
give deference to any approval of such plan ¢y the other
public agency.
9.12.042 Short Form HMMP - Minimal Storage S1te
A. A facility shall qualify 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 -
facility if 500 pounds or less for solids, 55 gallons,;os -
less for liquids, or 200 cubic feet or- less at STP for
compressed gases.
H. The applicant for a permit for a facility which
qualifies as a minimal storage site may opt to file the
short form Hazardous Material Management Plan. .Such plan
shall 3 nclude the following components:
1. General application information;
2. 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 and whether any of the
material is a waste;
3. Information describing .that the hazardous
materials will be stored in a suitable manner and will
be appropriately contained, separated and monitored;
4. Description of emergency equipment to ,be
maintained.
5. Assurance that the disposal of any hazardous
materials will be in an appropriate manner.
Article V
HAZARDOUS MATERIAL.; INVENTORY
9.12.050. Hazardous Materials Inventory Statement
A Hazardous Materials Inventory Statement(HMIS)
shall be filed with Cupertino in accordance with this Part. Any
person, firm, or corporation which stores any hazardous material
in an amount which is equal to or greater than the quantities
specified in Section 9.12.OS1.A is required to file aq HMIS.,,
Such person, fira.or corporation shall amend the HMIS within
thirty (30) days of the storage of any hazardous material not
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listed thereon but requized to be listed by Section 9.12.051.A,
or of an increase above the quantity range listed in accordance
with Section 4.12.OS1.C.
9.12.051 Information Required
A. Information shall be included in the HMIS for'each
hazardous material stored in a facility (aggregated over all..
such material stored in one or more storage facilities)
where the aggregate quantity throughout the facility is
greater than five hundred (500) pounds in weight for solids,
greater than fifty-five (55) gallons for liquids, or gzeater
than two hundres (200) cubic feet at standard temperature
and pressure (STP) for compresses gases.
H. The information in the HMIS-shall include either::'
1. For non-wastes:
The"general chemical name, common/trade name, major
constituents for mixtures, and manufacturer, United Nations
(UN) or North American (NA) number, if available, and the.
hazard class or classes and the Material Safety Data Sheet
(MSDS) or equivalent information. as required by Cupertino.
2. For wastes:
The Department of Health Services manifest for wastes
or equivalent information, and the hazard class or .classes.
C. In addition,. the HMIS shall state the .aggregate,"
quantity range stored at the facility of each hazardous
material listed in terms of the quantity ranges stated in
Section 9.12.041.A.3a(iii)[2-SJ above.
D. Where a claim for trade secret protection is made for
any hazardous material pursuant to Section 9.12.053, the
HMIS to be publicly disclosed shall indicate the number of
materials claimed to be trade secrets and the aggregate
quantity range stored at the facility for each such
hazardous material stated in terms of the quantity ranges
set for in Section 9.12.041.A.3a(iii)(2-5).
9.12.052 Public Records
The HMIS is a public record except that no trade
secret shall be disclosed. Any request fora public record
hereunder shall be submitted in writing to Cupertino officer
responsible for administering this Chapter.
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9.12.053
Trade Secrets
A. Permittee or permit applicant may make a-claim for the
protection of the identity of any hazardous material which
is its trade secret by filing a declaration under penalty. of
perjury on a form provided by Cupertino, signed by the
permittee or permit applicant, supporting the. trade secret
status, for "each such hazardous material asserted to be a
trade secret. The name of the hazardous material shall not
be disclosed on said declaration.
e. The exact name of the trade secret material, .its
quantity range by storage facility, and all .other
information required under Section 9.12.051.8 must, subject..
to the approval of Cupertino, be placed in a double keyed
lockbox and maintained in at least two locations: at the
facility. One key shall be provided to Cupertino at the
time the permit bec~mss effective. The other key shall be
maintained on site at all times, and readily accessible to
permittees designated emergency response person. Such
emergency response person shall cooperate with Cupertino in
opening the lockbox at any time Cupertino responds to an
emergency or unauthorized discharge on the site involving
the storage facility in which the trade secret material is
contained. In the event that the permittee's designated
emergency response person is not immediately available to
assist emergency response personnel to open the lockbox,
such personnel are authorized to break the lockbox.
C. In addition to p=oviding the lockboxes, the permittee
or permit applicant shall provide information to Cupertino,;
under. one of the following alternatives:
1. Alternative One
In lieu of submitting the exact chemical name of
said. trade secret material, permittee or permit
applicant may submit a description of the hazardous
material, including. but not limited to, the chemical.
and physical properties,. hazard class, reactivity
characteristics, fire and. explosion characteristics, of
the trade secret material, at a level of specificity
satisfactory to Cupertino, and on a form provided by
Cupertino. The description must include health hazard
information including remedies and countermeasures
appropriate for emergency response and in case of human
exposure to the trade secret material. Such
description must be adequate to enable Cupertino to
assess the suitability of the proposed containment and
the proposed monitoring plan. The decription must be
certified as accurate, in writing, by a chemist or
chemical engineer; or
_2Y_
2. Alternative Two
.Instead of submitting the name of the trade secret
to Cupertino, the trade secret information, together
with. all submittals pursuant to this Chapter, may be
submitted to an independent chemical engineer-or'
equivalent licensed professional, subject to approval-
by Cupertino, who shall certify, in writing, the
suitability of the containment design, the monitoring
methods and plans, and the separation of materials, and
.the. accuracy of the facility storage map with regard to
the information relevant to the trade secret. All such
submittals remain subject to Cupertino review and
approval under this Chapter; or
3. Alternative Three
The trade secret information sought to be
protected may be submitted to Cupertino on a separate
fozm or forma, clearly and conspicuously marked or
labeled as containing trade secret information, and
said £orm or forms must be submitted only to a
Cupertino official designated by Cupertino to receive
trade secret information. If this method of protecting
the trade secret information is chosen by permittee or
permit applicant, such party shall also submit a
waiver, relieving Cupertino of any and all liability
resulting from disclosure of the trade secret in
violation of this Part.
a. The Cupertino official shall endeavor to'
protect .from disclosure any and all trade secrets which
come into Cupertino's possession pursuant to this'
subsection. If an action is instituted under
California Public Records Act for the release of such
trade secrets, the permittee or permit applicant shall.
be deemed areal party in interest in any-such action.
Notice of a lawsuit to compel disclosure shall be given
by Cupertino to permittee or permit applicant promptly
upon receipt of such notice by Cupertino. The
permittee or permit applicant shall have the option to
defend Cupertino in any such action. The permittee or
permit applicant shall indemnify Cupertino in any such
action. The permittee or permit applicant shall
indemnify Cupertino for all of Cupertino's attorneys
fees, costs and expenses incurred in any proceeding
related to this Section, as well as for any judgment
imposed pursuant to California Government Code Section
6259.
b. Any information reported to the Cupertino
officer, under this subsection, which is exempt .from
disclosure pursuant to this section, shall not be
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disclosed to anyone other than as required by law,
except an officer or employee of Cupertino in
connection with the official duties of such officer or
employee under any law for the protection of health, or
to contractors with Cupertino and their employees, if
in the opinion of the Cupertino officer such disclosure
is necessary and required for the satisfactory
performance of a contract for performance of work.
c. Any person who by virtue of employment,
contractual relationship or official position has
obtained possession of or has had access to
information, the disclosure of which is prohibited by
this section, and who knowing that disclosure of the
information is prohibited, intentionally or recklessly
discloses the information in any manner to any person
not entitled to receive it, or uses the information for
his or her own use or advantage, shall be guilty of a
misdemeanor.
d. 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
official or in accordance with the laws of the United
States.
e. The City Council shall, by resolution, adopt a
procedure .designed to prevent knowing or negligent
disclosure of trade secret information. .Such procedure
shall identify which officials shall have access to the
information, and the means by which access will be
controlled and monitored. Trade secret information
shall be maintained in secured facilities which are
designed to prevent inadvertent or unauthorized access
or disclosure.
f. The confidential treatment, pursuant to this
subsection, of the identity of such trade secret-
disclosed to Cupertino does not apply where there has
been any unauthorized discharge related to such trade
secret material ahich is reportable in compliance with
Section 9.12.060 or where such disclosure arises out of
any official emergency response relating to the storage
facility (s) involving such taade secret information by
public safety personnel of Cupertino. - .
ARTICLE VI
RESPONSIBILITY
9.12.060 Reporting Unauthorized Discharge -.?';-
-2d-
A. 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 confirmed or unconfirmed 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 notify Cupertino of the occurrence as required by
this subsection.
1. Confirmed Unauthorized Discharge
°a Recordable Unauthorized Discharge.
"Any recordable unauthorized discharge shall
be contained and safely disposed of in an
appropriate manner by 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 criteriat
(i) 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 cleanup o£
- the hazardous material is completed; and
°a (ii)" °The permittee 'ia able to adequately
clean up the discharge before it escapes from
•''such secondary containmenC or such above
'`ground surface, but if the cleanup requires
~'°'more than eight (8) hours, it becomes a
-'repordable discharge 1n accordance with
• Section 9.12.060.A1b below; and
(iii) 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.
''(iv) An otherwise recordable unauthorized
discharge does not need to be recorded if the
`'discharge is not the result of the
- deterioration of failure of the primary
' container and the quanitity discharged is
less than on (1) ounce by weight, and can be
'' cleaned up within fifteen (15) minutes.
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• •
b. Reportable Unauthorized Discharge
Any unauthorized discharge .which is not
determined to be recordable under subsection
9.12,060.A.1.a above, -must be reported to
Cupertino immediately. The reporting party.: shall
provide information to Cupertino relating'to the.:
ability of 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. Cupertino may verify
that the hazardous material is being contained and
appropriately disposed. Cupertino, at any time
..upon a determination that permittee is not
adequately containing and disposing of such
hazardous material, shall have the .power and
'authority to undertake and direct an emergency
response in order to protect the public health
and/or safety.
2.` Unconfirmed Unauthorized Dischar e
a. Indication of Loss in Inventory Records
Whenever a material balance or ..other
inventory record indicates a lose of hazardous
material,. and no unauthorized discharge has been
confirmed by other means, permittee shall have
,five (5) working days to determine whether or not
there' has been. an unauthorized discharge. If
,berore the end of such period, it is determined
that there has been no unauthorized discharge, an
-entry explaining the occurrence shall be made in
permittee's monitoring records. Where permittee
`has not been able, within such period, to
determine that there has been no unauthorized
.discharge, an unauthorized discharge is deemed
confirmed and permittee shall proceed in
accordance with subsection 9.12.060.A.1b above.
b. 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 (5) 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 permittee's monitoring
records. If it has not been established within
such period that there has been no unauthorized
discharge, an unauthorized discharge is deemed
confirmed and permittee shall proceed in
accordance with subsection 9.12.060.A1b above.
-26-
• s
B. Gases at STP
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 Cupertino if such discharge.;,
presents a threat of imminent danger to public. health and
safety..
C. Office of Emergency Services
Cupertino shall submit a written report to the.. Office _ ,
of Emergency Services withn ten (10) .working days from the,
date that Cupertino is notifed of an unauthorized discharge
from an underground storage tank.
9.12.061 Cleanup Respons_i__bility
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. Cupertino shall undertake
actions to remedy the effects of such unauthorized discharge
itself, only if it determines that it is reasonably necessary
under the circumstances for Cupertino to do so. -The responsible
party shall be liable to reimburse Cupertino for all costa
incucred by Cupertino in remedying the effects of such
unauthorized discharge, including. the costs of fighting fires to
the extent allowed by law. This responsibility is not
conditioned upon evidence of willlfulness 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 Chapter from seeking to recover appropriate costs
and expenditures from other responsible parties except as
provided by 9.12.062.
9.12.062 Indemnification
The permittee shall indemnify, hold harmless and
defend Cupertino 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 permittee's operations. under this permit except
as arises from Cupertino's sole willful act or sole. active
negligence.
Article VII
INSPECTIONS AND RECORDS
9.12.070 Inspections by Cupertino
Cupertino may conduct inspections, at its
disczetion, for the purpose of ascertaining compliance with this
Chapter and causing to be corrected any conditions which would
_27_
constitute any violation of this Chapter 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
pursuant to Section 9.12.053 to anyone other tha:~ the official
designated for that purpose pursuant to Section 9.12.053.C.3,
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, permittee may put
temporary coverings over the labels of trade secret materials
during the course of Cupertino inspections conducted by other
than the City official so designated.
A. Right of Entry
Whenever necessary for the purpose of investigating or
enforcing the provisions of this Chapter, or whenever
any enforcement officer has reasonable cause to believe
that there exists in any structure or upon any
premises, any condition which constitutes a violation
of this Chapter, said officers may enter such structure
or premises at all reasonable times to inspect the
same, or to perform any duty imposed upon any of said
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.
B. Inspections by Cupertino - Discretionar
All inspections specified herein shall be at the
discretion of Cupertino and nothing in this chapter
shall be construed as requiring Cupertino to conduct.
any such inspection nor shall any actual inspection
made imply a fluty to conduct any other inspection.
Furthermore, nothing in this chapter shall be construed
to hold Cupertino or any officer, employee oY
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.
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9.12.071 Inspections by Permittee
The permittee shall conduct regular inspections of
its own facilities to assure compliance with this chapter and
shall maintain logs os file reports in accordance with. .its
Hazardous Materials Management Plan. Thee inspector conducting;-
such inspections shall be qualified to conduct such inspections..
9.12.072 Special inspections
In addition to the inspections -specified .above,
Cupertino may require the periodic employment of special
inspectors to conduct an audit or .assessment of permittee's
facility to make a hazardous material safety evaluation and:to.,
determine compliance with the provisions of this Chapter. .
A. The special inspector shall be a qualified person oz
firm who shall demonstrte expertise to the satisfaction
of Cupertino.
H. The special inspection report shall include an
evaluation of the facilities and recoaunendationa
consistent with the provisions of this Chapter where
appropriate. A copy of the report shall be filed with
Cupertino at the same time that it is submitted to
permittee.
C. Permittee shall, within thirty (30) days of said
report, file with Cupertino a plan to implement all
recommendations, or shall demonstrate to the
satisfaction of Cupertino why such recommendations;:.
shall not be implemented.
9.12.073 Substituted Inspections
An inspection by an employee of any other public
agency may be deemed by Cupertino as a substitute fore any
requirement above.
9.12.074 Maintenance of Records
All records required by this Chapter shall be ,
maintained by the permittee for a period not less than three (3) ;
years. Said records shall be made available to Cupertino during r
normal working hours and upon reasonable notice.
Article VIII
APPLICATION FOR PERMIT
9.12.080 Permit
Any person, firm, or corporation which stores any
hazardous material shall obtain and keep current a Hazardous
yaterials Storage Permit issued pursuant to this Chapter. One
such permit shall be issued fora single facility. Additional
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approvals shall be obtained for any storage facility thereafter
connected, installed, constructed, repaired as zequired by'
Section 9.12.035, substantially modified, replaced, closed, or
removed, or for any change or addition in hazardous materials
stored, not in accordance with the prior approval'.
Notwithstanding the above, permittee shall have thirty (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 such 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 materials, not meeting all of these'
criteria, shall require the prior additional approval.
9.12.081 Application for Permit
Application for a new, amended, or renewed permit
or an additional approval shall be made to the designated
officer on the form provided by Cupertino. In addition to the
information required by such form, applicant shall submit the
Hazardous Materials Management Plan required by Section 9.12.040
and construction plans, if any, in conformity with Section
9.12.030. Applicant shall specify the permit quantity limit
requested to be permitted for each storage facility.
4.12.082 Investigation '
The officer to whom an application for anew or`
renewed permit is made may make such investigation of the
applicant and the proposed facility or activity as such officer
deems necessary to carry out the purposes of this Chapter.
9.12.083 Approval of Permit - Provisional Permits
A. A permit shall not be approved until the issuing
offic-er is satisfied that the storage approved adequately
conforms to the provisions of this Chapter.
B. If the officer to whom application has been made finds
that the proposal does not completely conform to the
provisions of this Chapter, the officer may approve a
provisional permit, subject to conditions to be imposed by'
the officer, 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.
9.12.084 Issuance and Transfer of Permits--Temporary
Permits
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A. Issuance
Upon the approval of a temporary, provisional, or
Eull, term permit by the officer 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:
1. The name and address of the permittee foz
purposes of notice and service of process;
2.- The address of the facility for which the
permit is issued;
3. Authorization of the storage facility(s)
approved under the permit, the permit
quantity limit(s) and the approved hazard
class or classes for the storage facility(s);
,4. The date the permit is effective]
5. The date of expiration;
6. When applicable, a designation that the
permit is provisional or temporary;
7. Any special conditions of the permit.
H. Report to the State Water Resources Control Board
Cupertino will require its permit applicants and
permittees to fill out, in addition to forms required for
Cupestino's own purposes under this Chapter, standardized
forms based on the application form and annual report form
prepared by the State Water Resources Control Hoard as
specified by California Health and Safety Code Section
25283.2, and Cupertino will forward these forms to the State
Water Resources Control Board.
However, where any of the information required on such
standardized forma is claimed by the permit applicant or
permittee to be a trade secret, the permit applicant -or
permittee shall leave that portion of the form submitted.to
Cupertino blank, except to indicate the words "trade
secret," and the permit applicant or permittee shall
thereafter, within ten (10) days of submitting the
incomplete form to Cupertino, submit the completed form
including the trade secret information directly to the State
Water Resources Control Board. Cupertino. shall have no
obligation to protect as a trade secret, any information
which is furnished to it for forwarding to the State Water
Resources Control Board on these standarized forms.
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•
C. Records
The officer shall keep a record of all permits- igaued
and all conditions attached thereto.
D. Transfer of Permits
The permit may be transferred to new owners of the same
business only if the new owners accept reaonsibility for all
obligations under this Chapter at the time of the transfer
of the business and document such transfer on a form
provided by Cupertino within thirty (30) -days of transfer of
ownership of the business. Such transfer shall be subject
to the approval of Cupertino.
E. Temporary Permits
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 Article III, the Hazardous Materials Management Plan of
Article IV and the Inspection and Recotda requirements of
Article VII may be modified as appropriate under these
circumstances for the storage of hazardous materials on a
non-regular temporary basis.
9.12.085 Additional Approvals
A. When a request for an additional approval'ie L'iled
as required by Section 9.12.080, the procedures set forth in
this Chapter for an application fora permit shall also
apply to an application for an additional approval. Each
application for an additional approval shall be accompani"ed'
by an appropriate amendment to the HMMP.
B. If the additional approval request is for closure of a
storage facility, permittee shall apply for approval to
close such storage facility not less than thirty (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 describes procedures
for terminating the storage of hazardous materials in each
storage facility in a manner that:
a. Minimizes the need for further maintenance; and
b. Controls to -the extent that a threat to public
health or safety or to the environment From residual
hazardous materials in the facility is minimized or
eliminated; and
c. Demonstrates that hazardous materials that were
stored in the storage facility will be removed,
disposed of, neutralized, or reused in an appropriate
manner. This thirty (30) day period may be waived by
Cupertino if there are special circumstances requiring
such waiver.
~~
9.12.086 Effective Date and Term
A. A permit may a issue or a term of five (5) years,
excepting provisional permits which may be issued for any
period of time up to six (6) months and temporary permits
which may be issued for no longer than thirty (30) days.
B. 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.
9.12.087 Renewal
Every application for the renewal of a permit or
extension of a provisional permit shall be made at least thirty
(30) days prior to the expiration date of such ger-ait. 1f a
timely application for renewal has been submitted, the permit
shall remain in effect. until Cupertino- has made its
determination pursuant to Section 9.12.088 and any
administrative appeal pursuant to Article IX has been exhausted.
9.12.088 Determination
Cupertino shall make a determination with regard
to any application for a permit, an additional approval, or a
renewal, within ninety. (90) days from the date that the
application has been completed or compliance with -thee
appropriate provisions of the California Environmental Quality
Act (CEQA), has been completed, whichever occurs later. This
time limit may be further extended by mutual 'agreement between
Cupertino and applicant.
9.12.089 Fees
. _ ..
Cupertino shall establish fees sufficient to
recover its costs in administering this Chapter and no
application shall be accepted unless and until tho fees. have -
been paid.
A. Delinquent Fees
All permit fees delinquent for thirty (30) days or more'
shall be subject to an additional charge to be determined by
Cupertino which shall be added to the amount. of the fee
collected.
B. 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
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prior to the expiration of the term or that the permit is
suspended. or revoked prior to the expiration of the term, - -
Article IX
DENIAL
9.12.090 Denial of Application
If the officer to whom application has been made
has cause to deny the application and determines that it would
not be feasible or in the public interest to approve a temporary ' -
oz provisional permit, then the officer shall deny the
application.
9.12.091 Grounds for Denial
A permit shall be denied if the applicant fails to
demonstrate adequate .conformity to the provisions of this -
Chapter. In addition, a permit can be denied for any of the
grounds upon which the permit would be subject to revocation
pursuant to Article X.
9.12.092 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.
9.12.093 Appeal to City Manager or Designee
Within thirty (30) days from the date of deposit -
of the decision in the mail in accordance with Section XI.02, -
the applicant may appeal in writing, to the City Manager or
designee setting forth with particularity the ground o; grounds!'•--
for the appeal.
9.12.094 Hearing on Anneal
The City Manager or designee shall seta time and
place for the hearing on the appeal and shall notify the
applicant, in writng, of such date and time, not later than ten
(10) working days from the date the appeal was received by the
City Manager or designee. The hearing shall be conducted within
thirty (30) days from the date the appeal was received by the
City Manager oz designee.
9.12.095 Disposition of ADOeal
After the hearing on .the appeal, the City Manager
or designee may refer the matter back to the originating officer
for a new investigation and decision, may affirm the decision of
the originating officer, may approve a provisional permit as
provided in Section 9.12.083.B or may approve the application
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with or without conditions. The decision of the City Manager or
designee shall be the final administrative determination and is
subject to judicial review.
Article X
REMEDIAL ACTION ~.,
9.12.100 '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:
A. Fraud," willful misrepresentation, or any willful,
inaccurate or false statement in applying for a new ar
renewed permit;
B. Fraud,. .willful misrepresentation, or any willful
inaccurate of false statement in any report required by this
Chapter;
C. Failure to abate, correct or rectify any noncompliance
within the time specified in the notice of noncompliance;
D. Failure to correct conditions constituting ap
unreasonable risk of an unauthorized discharge of hazardous
materials within a reasonable time after notice from a
governmental entity;
E. Failure to abide by the remedial action imposed by
Cupertino.
9.12.101 Notice of Noncomaliance
Unless the City Manager or designee finds that an
immediate suspension under Section 9.12.103 is necessary to
protect the public health or safety from imminent danger, the ,
officer. shall issue a notice of noncompliance for failure .to
comply with the provisions of this Chapter, any permit
conditions or any provisions of the Hazardous Materials
Management Plan prior to taking remedial action on the grounds
of Section 9.12.100.C. Such notice shall be sent by certified ,
mail to permittee. If the Noncompliance is not abated,-
corrected, or rectified within the- time specified, remedial
action may be taken.
9.12.102 Notice of Hearing
A notice of hearing shall be given to he
permittee by the City Manager or designee in writing, setting
forth the time and place of the hearing, the ground or grounds
upon which the remedial action is bayed, the ..pertinent code
section or sections, and a brief statement of the factual
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u
matters in support thereof. The notice shall be given at least
fifteen (15) days prior to the hearing date.
9.12.103 Suspension Prior to Hearing
Whenever the City Manager or designee 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 or designee may immediately suspend any
permit pending the hearing for remedial action. The City
Manager or designee shall immediately notify the permittee of
such suspension by having a written notice of the suspension
personally served on the permittee. Permittee shall have the,
opportunity for a preliminary hearing with regard to such
prehearing suspension with three (3) working days of receiving
written notice of such suspension.
9.12.104 Remedial Action
if the City Manager or designee, after the
hearing, finds that cause exists for remedial action the` City
Manager or designee shall impose one or more of the followings
A. A warning;
B. An order to correct the particular noncompliance
specified in the notice issued pursuant`to Section
9.12.101:
C. A revocation of the permit for the facility or fore a
storage facility and approval of a provisional permit;
D. Suspension of the permit for the facility or for a
storage facility for a specified period not to .exceed
six (6) months;
E. Modification or addition of conditions of the permit;
F. Revocation of the permit with no reapplication
permitted for a specified period not to exceed five (5)"
years.
If the grounds for remedial action are based on
Section 9.12.100 C, D or E and if such grounds are limited to
one storage facility, the remedial action taken shall be limited
to that storage facility.
9.12.105 Transmittal of Decision
Within ten (10) days of the hearing the City
Manager or designee 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 Manager or designee shall be
the final administrative determination and is subject to
judicial review.
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9.12.106 Authorit after Sus ension Revocation or
Exp rat on
The suspension, revocation or expiration. of a`
permit issued under this Chapter shall not prevent Any.
proceedings to investigate such permit, any remedial: action
against such permittee or any proceeding against such permittea.
9.12.107 Return of Permit
In the event that a permit issued under the
provisions of this Chapter is suspended or revoked, the
permittee shall forward it to the issuing officer not later than
the end of the third business day after .notification of such
suspension or revocation.
Article XI
HEARING PROCEDURE
9.12.110 Hearing Rules
In any hearing under this Chapter, all "parties `
involved shall have the right to offer testimonial, documentazy,
and tangible evidence bearing on the' Sasues, to be represented.
by counsel, and to confront and cross-examine any witnesses'.
against them. Any hearing under this Chapter may. be continued..
by the person conducting the hearing for a Yeaeonable time -for
the convenience of a party oz a witness.
9.12.111 Hearing Notices
All notices required by this part shall be sent by
certified mail, postage prepaid, to the_applicant'or pezmi'ttee'.
at the address given for purposes of notice' on the application:
or permit or delivered to the permittee personally.
Article XII
ENFORCEMENT
9.12.120 Criminal Penalties
Any person who violates any o! the provisions of
this chapter shall be guilty of a misdemeanor and; upon
conviction thereof shall be punished as provided in Chapter_
1.12.
9.12.121 Civil Penalties
Any person, firm, or corporation who intentionally
or negligently violates any provision of this Chapter, except
that an unauthorized discharge which is recordable and recorded
_37_
in compliance with Section 9.12.060, shall not be a violation of
this Chapter for purposes of this Section, or fails to comply
with any order issued thereunder shall be liable for a civil
penalty, not to exceed Five Hundred Dollars pex 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:
A. The extent. of harm or potential hazm caused. by the -.
violation;
B. The nature and persistence of the violation;
C. The length of time over which the violation occurred;
D. The frequency of past violations;
E. The permittee's record of maintenance.
J. Corrective action,. if any, taken by the permittee.
In any civil action brought pursuant hereto, in which
Cupertino prevails, the court shall determine and. impose...
reasonable expenses, including attorneys' fees, incurred . by
Cupertino in the investigation and prosecution of the action.
9.12.122 Civil Action for Retaliation
A civil action may be instituted against any
employer by any 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
retaliation, because such employee has, in good faith, made any-
oral or written report or complaint related to the enforcement
of this Chapter to any company official, public official or
union official, or has testified in any proceeding" in any was
related thereto. In addition to any actual damages which may be
awarded, damages shall include costs and attorney's fees. The
Court may award punitive damages in a proper case.
9.12.123 Remedies not Exclusive
Remedies under this section are in addition to and ,
do not supersede or limit any and all other remedies, civil or
criminal.
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Article XIII
MISCELLANEOUS
9.12.130 Disclaimer of Liabilit
The degree of protection required by this Chapter
is considered reasonable for regulatory puzposes:-The_ standards
set forth herein are minimal standards and this Chapter does not
imply that compliance will ensure that ,there will be no
unauthorised discharge of hazardous materials This Chapter
shall not create liability on the part of Cupertino, any officer
or employee thereof for any damages that result from reliance 'on
this Chaptez or-any administrative decision lawfully made
thereunder. All persons handling, storing, using, processing,
and disposing of hazardous materials within Cupertino should be
and are advised to determine to theiz own satisfaction the level
of protection in addition to that required by this Chapter
necessary or desirable to ensure that there is no unauthorised
discharge of hazardous materials.
9.12.131 Guidelines
Guidelines approved by the City Manager or
designee shall be maintained in the Office of-the City Clezk.'
Such guidelines, in the azeas addressed therein, shall- serve as
an advisory interpretation of this Chapter.
9.12.132 Duties are Diaczetionary
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 os duty of Cupertino, 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.
9.12.133 Conflict with Other Laws
Notwithstanding any other provision° of this
Chapter:
A. A storage facility regulated by any state or federal
agency will be exempted from any conflicting provision
of this Chapter.
B. If the storage facility is .required to have a permit
from the Department of Health Secvices under Health and
Safety Code 3ection25100 et seq., it shall be exempted
from any provision of this Chapter which is covered by
the regulations adopted under the above cited statute.
_40_
C. Whenever any provision of this Chapter conflicts with
the Fire Code as adopted by Cupertino the.-stricter -
shall prevail.
9.12.134 Severability -
If any section, subsection, sentencesclause, or'
phrase of this .Chapter is for any zeason 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 Chapter.- The City Council hereby
declares that it would have passed this Chapter and-each and `
every section, subsection, sentence, clause, or' phrase' not !'
declared invalid or unconstitutional without regard to whether'
any portion of the Chapter. would_ be subsequently declared '=
invalid or unconstitutional.
Article XIV
COMPLIANCE SCHEDULE
9.12.1.40: Effective t)ate
The e~ ect ve date of this Chapter is Septebmes~l4, - -
9.12.141 Time Table for Initial Compliance >'
A. New Storage Facilities
1. -..
As of the effective date of this Chapter, a" "
Hazardous Materials Storage Permit for a facility
must be obtained prior to the i-c~atallation or
use of any new storage facility unless a building"
permit for such new storage facility was issued
prior to such date. -
2. The Hazardous Material Management Plan must be
filed at the time of application for a Hazardous
Material Storage Permit.
B. Existing Storage Facilities
1. A facility which has any existiyg hazardous'
materials storage facilities or had obtained a
building permit for such a storage. facility pziot
to the effective date of this Chapter, and to
. which no new storage facility is added shall have'-
one (1) year from such effective date to file a'"
completed application for a Hazardous Materials=
Storage Permit, including a monitoring plan in
accordance with Section 9.12.032. The time
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limitation for determination specified in Section
9.12.088 shall not apply but the applicant shall
be deemed to have a provisional permit of
indefinite term, until Cupertino. makes such
determination.
2. Notwithstanding the above, a Hazardous Material
Inventory Statement, if applicable, must be filed
within ninety (90) days of the effective date of.
this Chapter.
INTRODUCED at a regular meeting of the City Council of the
City of Cupertino this day of 1983,
and ENACTED at a regu aT r meeting o t e C ty Counc of the City
of Cupertino this day of , 1983 by the
following vote:
Vote Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
C ty er
APPROVED:
or, ty o Cupe