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sr-121383-8cCA:RMM:rm8600 City Council Meeting 12-13-83 STAFF REPORT Santa Monica, California DEC 1 3 1983 TO: Mayor and City Council FROM: City Attorney SUBJECT: Ordinance Adding Chapter 6 to Article VIII of the Santa Monica Municipal Code Relating to Underground Storage Tanks-and Declaring the Presence of an Emergency At its meeting on November 29, 1983, the City Council directed the City Attorney to prepare an emergency ordinance establishing standards and procedures for underground storage tanks. In response to this direction, the accompanying ordinance has been prepared and is presented for City Council consideration. BACKGROUND On September 23, 1983, the Governor approved Chapter 1046 of the 1983 California Statutes enacted by the Legislature. Chapter 1046 adds Sections 25150.1 and 25280-25289 to the Health and Safety Code relating to the underground storage of hazardous substances. A copy of Chapter 1046 accompanies this Staff Report. Briefly summarized, Chapter 1046 requires that all owners of underground storage tanks obtain a permit. Standards for both new and existing underground storage tanks are established. Administration of the law statewide is the responsibility of the •~ 1 DEC 1 3 )Sj3 State Water Resources Control Board, which is charged with the duty of implementing regulations by January 1, 1985. Administration of the law at the local level is the responsibility of the county unless a city assumes its administration by the adoption of an ordinance. The law contains various provisions relating to inspections, monitoring, unauthorized releases, abandonment, and enforcement. Of principal concern to the City Council is the provision contained in Health and Safety Code Section 25288(a)c Any city, county or city and county which prior to January 1, 1984, has adopted an ordinance which, at a minimum meets the requirements set forth in Section 25284 and 25284.1, providing for double containment, monitoring of underground storage tanks and under which permits are issued therefor is exempt from the provisions of this chapter so long as the ordinance, as it may be amended, continues to meet the requirements of Sections 25284 and 25284.1. Those local agencies which are exempted from this chapter pursuant to this subdivision shall submit to the board the application form and annual information specified by Section 25283.2 and shall submit a written report of any unauthorized release from an underground storage tank to the 2 Office of Emergency Services with 10 working days from the time the local agency is notified of the unauthorized release. Under the provisions of Health and Safety Code Section 25288(a), the City of Santa Monica may not adopt its own ordinance relating to underground storage tanks unless it does so prior to January 1, 1984. However, Chapter 1046 does provide a number of remaining areas for City involvement even if an ordinance is not adopted prior to January 1, 1984. These include: 1. Health and Safety Code Section 25282 provides: "A city may, by ordinance, assume responsibility for the implementation of this chapter pursuant to regulations adopted by the board [State Water Resources Control Board] and, if so, shall have exclusive jurisdiction within the boundary of the city for the purposes of carrying out this chapter." 2. Health and Safety Code Section 25288(b) provides: "This chapter shall not be construed to limit or abridge the authority of any city, county, or city and county to adopt an ordinance requiring information, conducting investigations, inspections, or implementing and enforcing this chapter." 3. Health and Safety Code Section 25288.2 authorizes any city, county, or city and county to implement the provisions of Health and Safety Code Section 25284 relating to standards for new underground storage tanks until the State Nlater Resources Control Board has adopted regulations. If a local agency does not implement the provisions of Health and Safety Code Section 3 25284 prior to the adoption of regulations, any new underground storage tank installed prior to the adoption of regulations shall only be subject to the standards for underground storage tanks in existence prior to January 1, 1984. 4. Health and Safety Code Section 25288.3 provides that a city that has assumed responsibility for enforcing the chapter may apply to the State water Resources Control Board for authority to implement design and construction standards for underground storage tanks in addition to those contained in the chapter. The additional standards can only be implemented if approved by the State water Resources Control Board. ANALYSIS OF PROPOSED ORDINANCE The accompanying ordinance adds Chapter 6 to Article VIII of the Santa Monica Municipal Code. The foundation for this ordinance is the state law contained in Chapter 1046. Although the November 29, 1983, Staff Report to the City Council made reference to a so-called model ordinance developed by the Toxic Assessment Group, this model ordinance has not formed the foundation for the accompanying ordinance since it addresses many areas not subject to preemption by Chapter 1046. Instead, the accompanying ordinance addresses only the area of underground storage tank regulation necessary to avoid state preemption. The following is a section by section analysis of the accompanying ordinance: 4 Section 8600. This section contains the findings and purpose for City's regulation of underground storage tanks. The findings and purpose are similar to those declared by the California Legislature in adopting Chapter 1046. (See Ch. 1046, § 1 [1983] Cal. Stats.) Section 8601. This section contains various definitions. The section is similar to the definitions contained in Health and Safety Code Section 25280 with four exceptions. First, the definition of hazardous substances has been modified to substitute the City for the Department of Health Services as the body determining exclusions. In addition, the definition of hazardous substances has been expanded to include substances on the master list of hazardous substances to be developed by the State Department of Health Services and substances required to be disclosed in connection with the City's Toxic Chemical Disclosure Law, Muncipal Code Section 5300 et sue. Second, certain definitions have been excluded because they are inapplicable to the City. See Health and Safety Code Section 25280(a), (d), (e), and (f). Third, the definition of "storage" does not contain the exemption contained in Health and Safety Code Section 25280 (k) for underground storage tanks issued a hazardous waste facilities permit. Finally, the definition of underground storage tank does not contain many of the exclusions contained in Health and Safety Code Section 252$0(m). 5 Section 8602. This section provides for administration of the City's law by the Department of General Services, contains provisions for an Appeals Board, and authorizes the City Council to adopt additional regulations by resolution. Section 8603. This section provides for the requirement of permits for underground storage tanks. It is similar to Health and Safety Code Section 25283. However, Section 8503 provides that every owner of an existing underground storage tank shall obtain a permit by January 1, 1985. The time period for compliance under state law remains to be established by regulation. In addition, it contains a provision that the owner and operator must comply with all terms and conditions of the permit. Section 8604. This section contains the requirements for an application for an underground storage tank permit. It is similar to Health and Safety Code Section 25283.2. Section 8605. This section provides that City Council shall establish by resolution fees for implementation of the City's law. Health and Safety Code Section 25283.3 likewise envisions that the state law will be financed through fees "at a level sufficient to pay the necessary and reasonable costs incurred in administerinq this chapter, including, but not limited to, permitting and inspection responsibilities." Section 8606. This section provides for periodic inspections of all underground storage tanks requiring permits. It is similar to Health and Safety Code Section 25283.4. The 6 section is clarified to require that the owner comply with action required by any compliance report resulting from an inspection. Section 8607. This section contains standards for every underground storage tank installed after January 1, 1984. It is similar to Health and Safety Code Section 25284 except that it contains no reduced standards f_or underground storage tanks for motor vehicle fuels storage. Section 8608. This section contains standards for every underground storage tank installed prior to January 1, 1984. It is similar to Health and Safety Code Section 25284.1 except that it does not specify the approved alternative methods of monitoring. These would be established at a later date by resolution. Section 8609. This section contains the monitoring responsibilities of the operator of an underground storage tank. It is similar to Health and Safety Code Section 25284.2. Section 8610. This section contains responsibilities in the event of an unauthorized release from an underground storage tank. This section is similar to Health and Safety Code Sections 25284.3 and 25284.4. Section 8611. This section contains responsibilities in the event an underground storage tank is abandoned. It is similar to Health and Safety Code Section 25286. Section 8612. This section contains provisions concerning the violation of the Chapter. Unlike Health and Safety Code Section 25287, no civil penalties are established. 7 Section 8613. This section contains provisions for the granting of a variance from standards for new or existing underground storage tanks. It is similar to Health and Safety Code Section 25288.3. Section 8614. This section contains provisions designed to protect the City from any civil liability for the adoption and implementation of the ordinance. There is no similar counterpart in Chapter 1046. The proposed ordinance differs from Chapter 1046 in other respects by not incorporating certain substantive provisions contained Health and Safety Code Sections 25283.5, 25283.6, 25284.5, and 25257. Health and Safety Code Section 25283.5 provides that any agency enforcing the state law has the inspection authority authorized by Health and Safety Code Sections 25185 and 25185.5. These sections contain detailed provisions authorizing inspection and testing on the property of a permittee, among other things. Generally, the City of Santa Monica has been able to secure voluntary compliance with its regulatory programs. When voluntary compliance cannot be secured, an administrative search warrant may be obtained from the Municipal Court in accordance with Code of Civil Procedure Section 1822.50 et seq. Insufficient time has precluded an analysis of whether or not the City should adopt provisions authorizing warrantless inspections and testing. Health and Safety Code Section 25283.6 contains provisions designed to .protect trade secrets. Since we believe that the 8 proposed ordinance can be enforced without the necessity for disclosure of trade secrets, no similar provision has been incorporated into the proposed ordinance. A11 records relating to the proposed ordinance will be public records, and the City will not assume any liability for the protection of trade secret information. Health and Safety Code Section 25284.5 contains standards for the repair of underground storage tanks containing motor vehicle fuel not under pressure. ~~henever there has been an unauthorized .release, it permits the tank to be repaired once by an interior coating process meeting certain specified standards. The proposed ordinance does not ..contain this special repair section relating only to motor vehicle fuels. ALTERNATIVES Four principal alternatives are available to the City Council: 1. The City Council can take no action prior to January 1, 1984. By taking no action, the County of Los Angeles will assume responsibility for the administration of state law in the City of Santa t4onica. The City will be preempted from adopting its own underground storage tank ordinance that is more expansive than that contained in Chapter 1046. However, the City Council at a later date may take the action described under the third and fourth alternatives. 2. The City Council can adopt the accompanying ordinance with such modifications as it deems appropriate. As long as the City's ordinance meets the minimum requirements set forth in 9 Health and Safety Code Sections 25284 and 25284.1, the City will be free to establish its own standards for underground storage tanks. However, preserving the right to establish standards produces the obligation to administer those standards. 3. The City Council can adopt an ordinance making the provisions of Health and Safety Code Section 25284 applicable to new underground storage tanks in the City until the State Water Resources Control Board adopts regulations. This action by the City would only temporarily involve the City in the regulation of underground storage tanks until statewide regulations are adopted. In the absence of this action by the City, new underground storage tanks would not be required to meet the requirements of Health and Safety Code Section 25284 until the regulations are adopted. 4. The City Council can adopt an ordinance assuming the administrative responsibility for Chapter 1046 in the City of Santa Monica. This action would replace the County of Los Angeles as the local agency enforcing the state law in the City of Santa Monica. RECOMMENDATION It is respectfully recommended that the City Council take such action as it deems appropriate in connection with the accompanying ordinance. PREPARED BY: Robert M. Myers, City Attorney 10