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ARTICLE 21A: RISK MANAGEMENT PROGRAM

Sec. 1180. Scope and Intent.

Sec. 1181. Definitions.

Sec. 1182. Submission of RMP.

Sec. 1183. Notice of Deficiency and Submission of Corrected RMP.

Sec. 1184. Public Review and Comment on RMPs.

Sec. 1185. Terms, Renewals and Implementation.

Sec. 1186. Modification of Facility or Regulated Substance Handling.

Sec. 1187. RMP Prior to Approval of a Development Project or Issuance of a Building Permit.

Sec. 1188. Inspections and Access to Information.

Sec. 1189. Stationary Sources Subject to Hazardous Materials Program.

Sec. 1190. Penalties.

Sec. 1191. Fees and Charges.

Sec. 1192. Collection, Administration and Review of Fees.

Sec. 1193. Trade Secrets.

Sec. 1194. Authority to Adopt Rules, Regulations and Guidelines.

Sec. 1195. Severability.

Sec. 1196. Disclaimer of Liability.

Sec. 1197. Duties are Discretionary.

Sec. 1198. Conflict with Other Laws.

SEC. 1180. SCOPE AND INTENT.

This Article is intended to authorize the Department of Public Health, as the certified unified program agency approved pursuant to Chapter 6.11 of the Health and Safety Code, to implement the program for prevention of accidental releases set forth in Chapter 6.95 (commencing with Article 2) of the Health and Safety Code, and any implementing regulations, together with the additional local requirements set forth in this Article. The Director shall have all of the powers and authority granted to a certified unified program agency to implement and enforce Article 2 of Chapter 6.95 of the Health and Safety Code, in addition to local requirements imposed by this Article.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1181. DEFINITIONS.

(a) "Covered process" means a process that has a regulated substance present in more than a threshold quantity, as determined pursuant to Section 68.115 of Title 40 of the Code of Federal Regulations.

(b) "Department" shall mean the San Francisco Department of Public Health.

(c) "Director" shall mean the Director of the Department of Public Health.

(d) "Qualified person" means a person who is qualified to attest, at a minimum, to the completeness of an RMP.

(e) "Regulated substance" means any substance which is either of the following:

(1) A regulated substance listed in Section 68.130 of Title 40 of the Code of Federal Regulations pursuant to Paragraph (3) of Subsection (r) of Section 112 of the Clean Air Act (42 U.S.C. Section 7412(r)(3)); or

(2) An extremely hazardous substance listed in Appendix A of Part 355 of Title 40 of the Code of Federal Regulations which is any of the following:

(A) A gas at standard temperature and pressure,

(B) A liquid with a vapor pressure at standard temperature and pressure equal to or greater than 10 millimeters mercury,

(C) A solid that is one of the following:

(i) In solution, in molten form,

(ii) In powder form with a particle size less than 100 microns, or

(iii) Reactive with a National Fire Protection Association rating of 2, 3, or 4,

(D) A substance that is determined by the State of California to either:

(i) Meet one or more of the criteria set forth in Clauses (A), (B), or (C), or

(ii) Pose a regulated substance accident risk pursuant to Section 25543.3 of the Health and Safety Code.

(f) "RMP" means the risk management plan required under Subpart G of Part 68 of Title 40 of the Code of Federal Regulations or Article 2, Chapter 6.95 of the Health and Safety Code, in addition to local requirements imposed under this Article.

(g) "Regulated substance accident risk" means a potential for the accidental release of a regulated substance into the environment which could produce a significant likelihood that persons exposed may suffer acute health effects resulting in significant injury or death.

(h) "Stationary source" means any buildings, structures, equipment, installations, or substance-emitting stationary activities which belong to the same industrial group, which are located on one or more contiguous properties, which are under the control of the same person (or persons under common control), and from which an accidental release may occur. A stationary source includes transportation containers that are no longer under active shipping papers and transportation containers that are connected to equipment at the stationary source for the purposes of temporary storage, loading, or unloading. The term "stationary source" does not include transportation, including storage incident to transportation, of any regulated substance or any other extremely hazardous substance under the provisions of this Article, if that transportation is regulated under Part 192, Part 193, or Part 195 of Title 49 of the Code of Federal Regulations. Properties shall not be considered contiguous solely because of a railroad or gas pipeline right-of-way.

(i) "Threshold quantity" means the quantity of a regulated substance that is determined to be present at a stationary source in the manner specified in Section 68.115 of Title 40 of the Code of Federal Regulations and that is the lesser of the following:

(1) The threshold quantity for the regulated substance specified in Section 68.130 of Title 40 of the Code of Federal Regulations;

(2) The "State threshold quantity" as that term is defined in Section 25532(j) of the Health and Safety Code.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1182. SUBMISSION OF RMP.

(a) The owner or operator of a stationary source shall prepare and submit an RMP if an RMP is required pursuant to Part 68 of Title 40 of the Code of Federal Regulations not later than the date specified in 40 CFR 68.150. An RMP required under this subsection shall be prepared in accordance with those regulations, the applicable requirements of Article 2 of Chapter 6.95 of the Health and Safety Code and any State implementing regulations, and shall be submitted to the Director and the United States Environmental Protection Agency.

(b) For any stationary source with one or more covered processes that is not otherwise required to prepare an RMP pursuant to Subsection (a), the Director shall make a preliminary determination whether there is a significant likelihood that the use by a stationary source of regulated substances may pose a regulated substances accident risk.

(1) If the Director determines that there is a significant likelihood of a regulated substances accident pursuant to this Article and Article 2 of Chapter 6.95 of the Health and Safety Code, the Director shall require the stationary source to prepare and submit an RMP, or the Director may reclassify the covered process from Program 2 to Program 3, as specified in Part 68 of Title 40 of the Code of Federal Regulations.

(2) If the Director determines that there is not a significant likelihood of a regulated substances accident risk pursuant to Article 2 of Chapter 6.95 of the Health and Safety Code, the Director may do either of the following:

(A) Require the preparation and submission of an RMP, but the Director need not do so if he or she determines that the likelihood of a regulated substances accident is remote, unless otherwise required by federal law; or

(B) Reclassify a covered process from Program 3 to Program 2 or from Program 2 to Program 1, as specified in Part 68 of Title 40 of the Code of Federal Regulations, unless the classification of the covered process is specified in those regulations.

(3) Where an RMP is required only pursuant to this subsection, the RMP shall be submitted to the Director.

(c) Each RMP required to be prepared pursuant to this Section shall be prepared and submitted in accordance with the provisions of Article 2, Chapter 6.95 of the Health and Safety Code and any implementing regulations. The RMP, and any revisions, shall comply with all information, notification and certification requirements specified in Article 2, Chapter 6.95 of the Health and Safety Code and any implementing regulations. The owner or operator of a stationary source shall provide any additional technical or clarifying information in its possession deemed necessary by the Director to clarify the RMP or which is reasonably necessary to determine the sufficiency of the RMP. An RMP required to be prepared pursuant to this Section shall be certified as complete by a qualified person and by the owner or operator of the stationary source.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1183. NOTICE OF DEFICIENCY AND SUBMISSION OF CORRECTED RMP.

The Director shall review the completed and certified RMP and notify the stationary source of any deficiencies. The stationary source shall submit a corrected RMP within 60 days of the notification of deficiency, unless granted a one-time extension of no more than 30 days by the Director. The Director may authorize the Bay Area Air Quality Management District ("BAAQMD") to conduct a technical review of the RMP.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1184. PUBLIC REVIEW AND COMMENT ON RMPS.

(a) Within 15 days after the Director determines the RMP is complete, the Director shall make the RMP available to the public for review and comment for a period of at least 45 days. Upon receiving a written request during the public comment for a public hearing, the Director shall hold a public hearing on the RMP in accordance with Section 1137 of this Code.

(b) The Director shall publish in a daily local newspaper and mail to interested persons and organizations a notice briefly describing and stating that the RMP is available for public review at a specified location.

(c) The Director shall review the RMP and any comments received in accordance with State law.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1185. TERMS, RENEWALS AND IMPLEMENTATION.

(a) The stationary source shall maintain all records concerning an RMP for a period of at least five years unless otherwise provided in Subpart D of Part 68 of Title 40 of the Code of Federal Regulations.

(b) Any stationary source with one or more covered processes, or any stationary source for which the Director has determined an RMP shall be required, shall comply with the deadlines set forth in Health and Safety Code Section 25536. The RMP shall be implemented in accordance with the Health and Safety Code Section 25535. In addition, any stationary source which is required to submit an RMP in accordance with this Article shall follow all RMP program guidance prepared for stationary sources and distributed by the Director.

(c) The stationary source shall review the RMP and make necessary revisions to the RMP in accordance with State and federal law, or upon order of the Director following a regulatory inspection during which violations are found.

(d) A revised RMP shall be submitted to the Director within 60 days following any modification which would materially affect the handling of a regulated substance.

(e) (1) Any business which was required to prepare, submit and implement a risk management and prevention program pursuant to Article 2, Chapter 6.95 of the Health and Safety Code as it read on December 31, 1996, and which is required to prepare and submit an RMP pursuant to this Article, shall continue to implement the risk management and prevention program until the business has submitted an RMP in accordance with this Article.

(2) Any business which was required to prepare, submit and implement a risk management and prevention program pursuant to Article 2, Chapter 6.95 of the Health and Safety Code as it read on December 31, 1996, and which is not required to prepare an RMP pursuant to this Article is required to comply only with those requirements of Article 2, Chapter 6.95 of the Health and Safety Code that apply to the business.

(3) Any stationary source which was not required to prepare, submit and implement a risk management and prevention program pursuant to Article 2, Chapter 6.95 of the Health and Safety Code as it read on December 31, 1996, but which is required to prepare an RMP pursuant to this Article shall submit and implement an RMP not later than the deadlines specified in Subpart A (commencing with Section 68.1) of Part 68 of Subchapter C of Chapter I of Title 40 of the Code of Federal Regulations.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1186. MODIFICATION OF FACILITY OR REGULATED SUBSTANCE HANDLING.

(a) A stationary source that intends to modify a facility in a manner which may result in either a significant change in the amount of regulated substances handled by the facility or in a significantly changed risk in handling a regulated substance, as compared to the amount of substances and amount of risk identified in the facility's RMP relating to the covered process proposed for modification, shall comply with the requirements of Health and Safety Code Section 25543.2 prior to operating the modified facility. An increase in production up to a stationary source's existing operating capacity or an increase in production levels up to the production levels authorized in a permit granted pursuant to Health and Safety Code Section 42300 shall not constitute a modification for purposes of this Section.

(b) The stationary source subject to this Section shall revise the appropriate documents expeditiously, but not later than 60 days from the date of the facility modification.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1187. RMP PRIOR TO APPROVAL OF A DEVELOPMENT PROJECT OR ISSUANCE OF A BUILDING PERMIT.

Pursuant to Government Code Section 65850.2, within five days of submitting a development project application or building permit application to the City and County of San Francisco, the applicant shall certify to the Director whether or not the proposed project will have more than a threshold quantity of a regulated substance in a process. Within 25 days of receipt of such certification and such additional information as the Director deems adequate to determine whether an RMP will be required, the Director shall issue either a notice of requirement to comply with, or determination of exemption from, the requirement for an RMP.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1188. INSPECTIONS AND ACCESS TO INFORMATION.

(a) In accordance with Health and Safety Code Section 25537, the Director shall inspect each stationary source subject to this Article at least once every three years in order to determine whether the stationary source is in compliance with the requirements of this Article.

(b) The Director may have access to inspect any stationary source subject to this Article and to review all information in the possession of the stationary source which is reasonably necessary to allow the Director to determine the stationary source's compliance with this Article. Upon request by the Director, a stationary source shall provide to the Director information regarding that source's compliance with this Article.

(c) Claims by a stationary source that information required to be provided to the Director under this Article constitutes trade secret information shall be addressed in accordance with Health and Safety Code Section 25538.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1189. STATIONARY SOURCES SUBJECT TO HAZARDOUS MATERIALS PROGRAM.

(a) Where a stationary source subject to the requirements of this Article is also subject to the requirements of Division II of Article 21 for the same substance, compliance with this Article shall be deemed compliance with Division II of Article 21 for that substance to the extent not inconsistent with federal law and the requirements of Division II of Article 21. However, this subsection shall not apply where the requirements imposed for a particular substance under this Article are less stringent than the requirements imposed on a stationary source for the same substance pursuant to Division II of Article 21.

(b) A stationary source that relies on Subsection (a) for compliance with the applicable requirements of Division II of Article 21 shall annually submit to the Director a statement that the stationary source has made no changes required to be reported pursuant to Division II of Article 21, or identifying all reportable changes.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1190. PENALTIES.

(a) Any stationary source that violates this Article shall be civilly liable to the City in an amount of not more than $2,000 for each day in which the violation occurs. If the violation results in, or significantly contributes to, a release or threatened release of any regulated substance, any fire, or any health or medical problem requiring toxicological, health or medical consultation, the stationary source shall also be assessed the full cost of the City emergency response, as well as the cost of cleaning up and disposing of the hazardous materials.

(b) Any stationary source that knowingly violates the provisions of this Article after reasonable notice of the violation shall be civilly liable to the City in an amount not to exceed $25,000 for each day in which the violation occurs and upon conviction, may be punished by imprisonment in the County Jail for not more than one year.

(c) Any person or stationary source that violates any rule or regulation, emission limitation, permit condition, order, fee requirement, filing requirement, duty to allow or carry out inspection or monitoring activities, or duty to allow entry imposed pursuant to this Article and for which delegation or approval of implementation and enforcement authority has been obtained by the State pursuant to Subsections (l) and (r) of Section 112 of the Clean Air Act (42 U.S.C. Sections 7412(l) and 7412(r)) or the regulations adopted pursuant thereto, is strictly liable for a civil penalty not to exceed $10,000 for each day in which the violation occurs.

(d) Any person or stationary source that knowingly makes any false material statement representation or certification in any record, report, or other document filed, maintained, or used for the purpose of compliance with this Article, or destroys, alters, or conceals such document, shall, upon conviction, be punished by a fine of not more than $25,000 for each day of violation, by imprisonment in the County Jail for a period not to exceed one year, or by both fine and imprisonment.

If the conviction is for a violation committed after a first conviction under this subsection, the person or stationary source shall be punished by a fine of not less than $2,000 or more than $50,000 per day of violation, by imprisonment in the State Prison for one, two, or three years or in the County Jail for not more than one year, or both fine and imprisonment.

If a violation under this subsection results in, or significantly contributes to, an emergency, including a fire, to which the City is required to respond, the person or stationary source shall also be assessed the full cost of the City emergency response, as well as the cost of cleaning up and disposing of the hazardous materials.

(e) Any person or stationary source that knowingly violates any requirement of this Article, including any fee or filing requirement, for which delegation of federal implementation and enforcement authority has been obtained by the State pursuant to Subsections (l) and (r) of Section 112 of the Clean Air Act (42 U.S.C. Sections 7412(l) and 7412(r)) or that knowingly renders inaccurate any federally required monitoring device or method, shall upon conviction, be punished by a fine of not more than $10,000 for each day of violation.

(f) If civil penalties are recovered pursuant to Subparagraphs (a), (b) or (c), the same offense shall not be subject to a criminal prosecution pursuant to Subparagraphs (d) or (e). If the Director refers a violation to the District Attorney and a criminal complaint is filed, any civil action brought pursuant to this Article for that offense shall be dismissed.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1191. FEES AND CHARGES.

(a) In accordance with the single fee system established pursuant to Health and Safety Code Section 25404.5, stationary sources required under this Article to submit an RMP shall pay the following fees and charges:

(1) RMP Review and Processing Fees. A stationary source that is notified that it must submit an RMP shall pay the following one-time fee to cover the cost of submission review and processing. This fee shall be due at the time the stationary source is notified that it must prepare an RMP:

(A) Program 1 facilities: $1266;

(B) Program 2 or Program 3 facilities: $7,436;

(2) Annual Fee for Stationary Sources. A stationary source that is required to prepare and maintain an RMP shall pay the following annual fee, due at the first billing cycle after the RMP is considered complete by the Director, and annually thereafter:

(A) Program 1 facilities: $180;

(B) Program 2 or Program 3 facilities: $358.

(b) Beginning with fiscal year 2007-2008, no later than April 15 of each year, the Controller shall adjust the fees provided in this Article to reflect changes in the relevant Consumer Price Index, without further action by the Board of Supervisors. In adjusting the fees, the Controller may round these fees up or down to the nearest dollar, half-dollar or quarter-dollar. The Director shall perform an annual review of the fees scheduled to be assessed for the following fiscal year and shall file a report with the Controller no later than May 1st of each year, proposing, if necessary, an adjustment to the fees to ensure that costs are fully recovered and that fees do not produce significantly more revenue than required to cover the costs of operating the program. The Controller shall adjust fees when necessary in either case.

(Added by Ord. 399-97, App. 10/17/97; amended by Ord. 158-99, File No. 990761, App. 6/11/99; Ord. 177-04, File No. 040735, App. 7/22/2004; Ord. 161-08, File No. 080746, App. 7/30/2008)

SEC. 1192. COLLECTION, ADMINISTRATION AND REVIEW OF FEES.

The Director of Health through the Health Commission shall recommend to the Board of Supervisors appropriate fees sufficient to pay for but not exceed the costs incurred in administering this Article. Such fees shall be set, collected, reviewed and administered in accordance with Sections 1175.1 through 1175.5 of Article 21 of this Code.

(Added by Ord. 399- 97, App. 10/17/97)

SEC. 1193. TRADE SECRETS.

(a) If a stationary source believes that any information submitted or otherwise provided to the Department pursuant to this Article involves the release of a trade secret, the stationary source shall provide the information to the Department and shall notify the Department in writing of that belief. Upon receipt of a claim of trade secret related to an RMP, the Department shall review the claim and shall segregate properly substantiated trade secret information from information which shall be made available to the public upon request in accordance with the California Public Records Act. The Department shall not disclose any properly substantiated trade secret which is so designated by a stationary source except in compliance with this Section and Section 25538 of the Health and Safety Code.

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

(c) The location of explosives stored by the San Francisco Police Department and other law enforcement or government agencies shall not be disclosed.

(d) Information designated as a trade secret may be disclosed to:

(1) An officer or employee of the City and County of San Francisco, the State of California or the United States of America, for use in connection with the official duties of such officer or employee acting under authority of law for the protection of health;

(2) Persons or businesses contracting with the City and County and their employees if, in the opinion of the Director of Health, such disclosure is necessary and required for the satisfactory performance of the work to be done under the contract or to protect the health and safety of the employees of the contractor;

(3) Any physician where the physician certifies in writing to the Director of Health that such information is necessary to the medical treatment of a patient; where the Director determines that a medical emergency exists, the Director may waive the written certification; or

(4) Health professionals (i.e., physician, industrial hygienist, toxicologist, epidemiologist, or occupational health nurse) in a nonemergency situation where the request is in writing and the request describes in reasonable detail the medical need for the information.

(e) (1) When the Director receives a request for information which includes information which the stationary source has designated as a trade secret, the Director shall notify the stationary source of said request by certified mail. The stationary source shall have 30 days from receipt of the notice to provide the Director with any materials or information intended to supplement the information submitted pursuant to Subsection (a) and needed to substantiate the trade secret claim.

(2) The Director shall inform the stationary source by certified mail that some or all of a claim of trade secret has not been substantiated. The Director shall release the information 30 days after receipt by the stationary source of said notice, unless prior to the expiration of said 30-day period, the stationary source files an action in a court of competent jurisdiction for a declaratory judgment that the information is subject to protection under Subsection (b) as a trade secret, or for an injunction prohibiting disclosure of said information to the general public, and promptly notifies the Director of that action.

(f) In adopting this Article, the Board of Supervisors does not intend to authorize or require the disclosure to the public of any trade secrets protected under the laws of the State of California.

(g) This Section is not intended to authorize a stationary source to refuse to disclose any information, including but not limited to, trade secrets, required pursuant to this Article.

(h) Notwithstanding any other provision of this Article, any officer or employee of the City and County, or former officer or employee or contractor with the City or employee thereof, who by virtue of such employment 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, knowingly and wilfully discloses the information in any manner to any person not entitled to receive it, shall, upon conviction, be punished by imprisonment in the County Jail for not more than six months or by a fine of not more than $1,000, or by both fine and imprisonment.

(i) The Director of Health shall advise any person to whom a trade secret is disclosed pursuant to this Section that the disclosure thereof, except as authorized by this Section, constitutes a misdemeanor.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1194. AUTHORITY TO ADOPT RULES, REGULATIONS AND GUIDELINES.

(a) The Director may adopt and thereafter, from time to time, may amend rules, regulations and guidelines implementing the provisions and intent of this Article. Before issuing or amending any such procedure, the Department of Public Health shall provide a 30-day public comment period by providing published notice in an official newspaper of general circulation in the City of the intent to issue or amend the procedure. Rules and regulations shall be approved by the Health Commission at a public hearing. In addition to the notices required by law, the Secretary of the Health Commission shall send written notice, at least 15 days prior to the hearing, to any interested party who sends a written request to the Health Commission for notice of hearings on hazardous materials regulation.

(b) Regulations promulgated by the Director and approved by the Health Commission shall be maintained in the Office of the Clerk of the Board of Supervisors.

(c) The Director may require generators to submit information deemed necessary by the Director, including, but not limited to: the name and address of the generator, the name and address of the property owner, and a description of the type and volume of hazardous materials handled or stored.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1195. SEVERABILITY.

If any section, subsection, sentence, clause or phrase of this Article is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of the Article. The Board of Supervisors hereby declares that it would have passed this Article and each and every section, subsection, sentence, clause or phrase not declared invalid or unconstitutional without regard to whether any portion of this Article would be subsequently invalid or unconstitutional.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1196. DISCLAIMER OF LIABILITY.

(a) The degree of protection required by this Article is considered reasonable for regulatory purposes. The standards set forth in this Article are minimal standards and do not imply that compliance will ensure no unauthorized release of hazardous materials. This Article shall not create liability on the part of the City, or any of its officers or employees for any damages that result from reliance on this Article or any administrative decision lawfully made pursuant to this Article. All persons handling hazardous materials within the City should be and are advised to determine to their own satisfaction the level of protection desirable to ensure no unauthorized release of hazardous materials.

(b) In undertaking this program to obtain disclosure of information relating to the location and handling of hazardous materials, the City and County of San Francisco is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.

(c) All inspections specified or authorized by this Article shall be at the discretion of the City and nothing in this Article shall be construed as requiring the City to conduct any such inspection nor shall any actual inspection made imply a duty to conduct any other inspection.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1197. DUTIES ARE DISCRETIONARY.

Subject to the limitations of due process and applicable requirements of State or federal law, and notwithstanding any other provision of this Code whenever the words "shall" or "must" are used in establishing a responsibility or duty of the City, its elected or appointed officers, employees, or agents, it is the legislative intent that such words establish a discretionary responsibility or duty requiring the exercise of judgment and discretion.

(Added by Ord. 399-97, App. 10/17/97)

SEC. 1198. CONFLICT WITH OTHER LAWS.

Notwithstanding any other provision of this Article:

A person or business is exempted from any provisions of this Article that conflict with State or federal law or regulations to which person or business is subject.

(Added by Ord. 399-97, App. 10/17/97)