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
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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
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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
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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:
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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).
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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
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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.
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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
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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
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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
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