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ARTICLE 22A: ANALYZING SOILS FOR HAZARDOUS WASTE
Sec. 1220. Definitions.
Sec. 1221. Applicability of Article.
Sec. 1222. Waiver of Requirements for Compliance.
Sec. 1223. Director's Discretionary Authority to Require Compliance.
Sec. 1224. Site History.
Sec. 1225. Soil Sampling and Analysis.
Sec. 1226. Soil Analysis Report.
Sec. 1227. Known Hazardous Waste Site; Hunters Point Shipyard Parcel A.
Sec. 1228. Applicant's Responsibility Upon Discovery of Hazardous Wastes.
Sec. 1229. Certification.
Sec. 1230. Notification to Director of Building Inspection.
Sec. 1231. Maintenance of Report by Director.
Sec. 1232. Rules and Regulations.
Sec. 1233. Notification to Buyer.
Sec. 1234. Nonassupmtion of Liability.
Sec. 1235. Construction on City Property.
Sec. 1236. Severability.
Sec. 1237. Fees.
SEC. 1220. DEFINITIONS.
In addition to the general definitions applicable to this Code, whenever used in this Article, the following terms shall have the meanings set forth below:
(a) "Applicant" means a person applying for any building permit as specified by Section 106.1 of the San Francisco Building Code.
(b) "Certified laboratory" means a laboratory certified by the California Department of Health Services, pursuant to the provisions of Section 25198 of the California Health and Safety Code, for analyzing samples for the presence of hazardous waste.
(c) "Director" means the Director of the San Francisco Department of Public Health or the Director's designee.
(d) "Director of Building Inspection" means the Director of the Department of Building Inspection of the City and County of San Francisco.
(e) "Hazardous waste" means any substance that meets the definition of hazardous waste in Section 25117 of the California Health and Safety Code or Appendix X of Division 4.5, Chapter 10, Article 5 of Title 22 California Administrative Code.
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1221. APPLICABILITY OF ARTICLE.
Pursuant to Section 1001 of the San Francisco Public Works Code, an applicant shall comply with this Article.
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1222. WAIVER OF REQUIREMENTS FOR COMPLIANCE.
Director may waive the requirements imposed by this Article if the applicant demonstrates that the property has been continuously zoned as residential under the City Planning Code since 1921, has been in residential use since that time, and no evidence has been presented to create a reasonable belief that the soil may contain hazardous wastes. The Director shall provide the applicant and the Director of Building Inspection with written notification that the requirements of this Article have been waived.
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1223. DIRECTOR'S DISCRETIONARY AUTHORITY TO REQUIRE COMPLIANCE.
In addition to those areas defined pursuant to Section 1221, the Director has authority to require soil analysis pursuant to the provisions of this Article as part of any building permit application when the Director has reason to believe that hazardous wastes may be present in the soil at the property.
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1224. SITE HISTORY.
The applicant shall provide to the Director a site history for the property prepared by an individual with the requisite training and experience described in regulations adopted pursuant to Section 1232. The site history shall contain a statement indicating whether the property is listed on the National Priorities List, published by the United States Environmental Protection Agency pursuant to the federal Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. Section 9604(c)(3) or listed as a hazardous substance release site by the California Department of Toxic Substances Control or the State Water Resources Control Board pursuant to the California Hazardous Substances Account Act, Health and Safety Code Section 25356. The applicant shall file the site history with the Director and the certified laboratory.
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1225. SOIL SAMPLING AND ANALYSIS.
(a) Analysis of Sampled Soil. The applicant shall cause a professional geologist, civil engineer, or engineering geologist who is registered or certified by the State of California, or a certified laboratory to take samples of the soil on the property to determine the presence of hazardous wastes in the soil. The following types of analyses shall be conducted, unless an alternative proposal is approved by the Director:
(1) Inorganic persistent and bioaccumulative toxic substances as listed in Section 66261.24(a)(2)(A) of Title 22 of the California Administrative Code;
(2) Volatile organic toxic pollutants as listed in 40 Code of Federal Regulations, Part 122, Appendix D, Table II;
(3) PCBs;
(4) pH levels;
(5) Cyanides;
(6) Methane and other flammable gases;
(7) Total petroleum hydrocarbons;
(8) Semi-volatile compounds;
(9) Hazardous wastes designated by the Director pursuant to Section 1232; and
(10) Any other hazardous waste that either the Director or the certified laboratory, after an examination of the site history, has reason to conclude may be present on the property. The Director shall make any such determination within 30 days of filing by the applicant of the site history.
(b) Procedures for Soil Sampling. Soil sampling shall be conducted in accordance with procedures for sampling soils approved by the California Department of Toxic Substances Control or the State Water Resources Control Board and the San Francisco Bay Regional Water Quality Control Board.
(c) Testing of Sampled Soil. Samples shall be analyzed by a certified laboratory in accordance with methods for analyzing samples for the presence of hazardous wastes approved by the California Department of Toxic Substances Control or the State Water Resources Control Board and the San Francisco Bay Regional Water Quality Control Board.
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1226. SOIL ANALYSIS REPORT.
(a) Contents. The Applicant shall submit a soil analysis report prepared by the persons conducting the soil sampling and analysis to the Director, the California Department of Toxic Substances Control, the San Francisco Bay Regional Water Quality Control Board and to other agencies as directed by the Director. The report shall include the following information:
(1) The names and addresses of the persons and the certified laboratory that conducted the soil sampling, the soil analysis and prepared the report;
(2) An explanation of the sampling and testing methodology;
(3) The results of the soil analyses;
(4) Whether any of the analyses conducted indicate the presence of hazardous wastes and, for each, the level detected and the State and federal minimum standards, if any;
(5) The State and federal agencies to which the presence of the hazardous wastes has been reported and the date of the report;
(6) A statement that the certified laboratory, after examination of the site history, has no reason to conclude that hazardous wastes other than those listed in Section 1225(a)(1) through (a)(9) were likely to be present on the property;
(b) Review by Director. The Director shall determine whether the site history, soil sampling and analyses required by this Article were conducted and whether the report required by this Section is complete. If the site history, soil sampling or analyses were not conducted or the report does not comply with the requirements of this Section, the Director shall notify the applicant in writing within 30 days of receipt of the report, indicating the reasons the report is unacceptable. A copy of the notification shall be sent to the Director of Building Inspection.
(c) No Wastes Present. If the soil sampling and analysis report indicates that there are no hazardous wastes present in the soil, the Director shall provide the applicant and the Director of Building Inspection with written notification that the applicant has complied with the requirements of this Article.
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1227. KNOWN HAZARDOUS WASTE SITE; HUNTERS POINT SHIPYARD PARCEL A.
(a) If the soil sampling and analysis report or site history indicates that the property is listed on the National Priorities List or the list of California Hazardous Substances Account Act release sites, the applicant shall provide to the Director certification or verification from the appropriate federal or State agency that any site mitigation required by the federal or State agency has been completed and complete the certification procedure set forth in Section 1229. Certification by a competent State or federal agency that mitigation measures have been properly completed shall constitute a conclusive determination and shall be binding upon the Director.
(b) Applicant's activities on Parcel A of the Hunters Point Shipyard, as defined in Article 31, are governed by Article 31 of the Health Code and not by this Article.
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1228. APPLICANT'S RESPONSIBILITY UPON DISCOVERY OF HAZARDOUS WASTES.
Unless Section 1227 is applicable, if the soil sampling and analysis report indicates that hazardous wastes are present in the soil, the applicant shall submit a site mitigation report prepared by a qualified person to the Director.
(a) For the purposes of this Section, a qualified person is defined as one or more of the following who is registered or certified by the State of California: soil engineer, civil engineer, chemical engineer, engineering geologist, geologist, hydrologist, industrial hygienist or environmental assessor.
(b) The site mitigation report shall contain the following information:
(1) A determination by the qualified person as to whether the hazardous wastes in the soil are causing or are likely to cause significant environmental or health and safety risks, and if so, recommend measures that will mitigate the significant environmental or health and safety risks caused or likely to be caused by the presence of the hazardous waste in the soil. If the report recommends mitigation measures it shall identify any soil sampling and analysis that it recommends the project applicant conduct following completion of the mitigation measures to verify that mitigation is complete;
(2) A statement signed by the person who prepared the report certifying that the person is a qualified person within the meaning of this Section and that in his or her judgment either no mitigation is required or the mitigation measures identified, if completed, will mitigate the significant environmental or health and safety risks caused by or likely to be caused by the hazardous wastes in the soil;
(3) Complete the site mitigation measures identified by the qualified person in the site mitigation report; and
(4) Complete the certification required by Section 1229.
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1229. CERTIFICATION.
(a) Contents. The applicant shall certify under penalty of perjury to the Director that:
(1) If Section 1227 is applicable, the applicant has received certification or verification from the appropriate State or federal agency that mitigation is complete.
(2) If Section 1228 is applicable:
(A) A qualified person has determined in the site mitigation report that no hazardous wastes in the soil are causing or are likely to cause significant environmental or health and safety risks, and the qualified person recommends no mitigation measures; or
(B) The applicant has performed all mitigation measures recommended in the site mitigation report, and has verified that mitigation is complete by conducting follow-up soil sampling and analysis, if recommended in the site mitigation report.
(b) Applicant Declarations. The certification shall state:
"The Applicant recognizes that it has a nondelegable duty to perform site mitigation; that it, and not the City, is responsible for site mitigation; that it, not the City, attests to and is responsible for the accuracy the representations made in the certification, and that it will continue to remain liable and responsible, to the extent such liability or responsibility is imposed by State and federal law, for its failure to perform the site mitigation."
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1230. NOTIFICATION TO DIRECTOR OF BUILDING INSPECTION.
After receipt of the certification required by Section 1229, the Director shall provide the applicant and the Director of Building Inspection with written notification that the applicant has complied with the requirements of this Article.
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1231. MAINTENANCE OF REPORT BY DIRECTOR.
The site history, soil analysis report certification and related documents shall become a part of the file maintained by the Department.
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1232. RULES AND REGULATIONS.
(a) Adoption of Rules. The Director may adopt, and may thereafter amend, rules, regulations and guidelines that the Director deems necessary to implement the provisions of this ordinance. For the purposes of this Article, a public hearing before the Health Commission shall be held prior to the adoption or any amendment of the rules, regulations and guidelines recommended for implementation. In addition to notices required by law, the Director shall send written notice, at least 15 days prior to the hearing, to any interested party who sends a written request to the Director for notice of hearings related to the adoption of rules, regulations and guidelines pursuant to this Section.
In developing such regulations, the Director shall consider, inter alia, State and federal statutes and regulations pertaining to hazardous wastes with the purpose of coordinating local regulations with them.
(b) Guidelines for Regulations. Rules, regulations and guidelines may address among others, the following subjects:
(1) Minimum standards for acceptable site histories. The minimum standards shall be designed to assist interested persons including, but not limited to, the Director of Building Inspection, other state and local public agencies and certified testing laboratories, to evaluate whether analyses, other than those required by Section 1225(a)(1) through (a)(9), must be conducted to detect the presence in the soil of hazardous wastes and to determine what analyses are appropriate.
(2) Minimum education and experience requirements for the persons who prepare site histories pursuant to Section 1224. In making this determination, the Director shall consider relevant those academic disciplines and practical experience which would qualify an individual to evaluate a property in San Francisco and identify prior uses made of the property that may be relevant in determining whether there are hazardous wastes in the soil and what analyses, if any, are appropriate to identify them.
(3) Precautionary measures to minimize long-term exposure to hazardous wastes that cannot be removed or are not required to be removed by the site mitigation plan.
(4) Designation of areas. Designation of areas in the City, in addition to the area described in Section 1001 of the San Francisco Public Works Code, where the Director has reason to believe that the soils may contain hazardous wastes and the designation of the analyses specified in Section 1225 that shall be conducted in each area.
(5) Designation of additional hazardous wastes. The designation of additional hazardous wastes, other than those listed in Section 1225(a)(1) through (a)(9), for which analyses must be conducted. The designation shall be based on a determination by the Director that there is a reasonable basis to conclude that such other hazardous wastes may be in the soil. The designation may be made applicable to a specified area or areas of the City or city- wide as determined by the Director.
(6) Waiver from Requirements for Analyses. The exclusion of hazardous wastes from the analysis requirements set forth in Section 1225 upon a determination that the hazardous waste does not pose a significant present or potential hazard to human health and safety or to the environment.
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1233. NOTIFICATION TO BUYER.
The Director shall prepare and maintain for public distribution a summary of the requirements of this Article. The seller or the seller's agent involved in the sale or exchange of any real property located bayward of the high-tide line as indicated on the Historic San Francisco Maps as described in Article 20 of the Public Works Code and as reflected on the map prepared and maintained for public distribution by the Director and in those areas designated by the Director pursuant to Section 1223 shall provide a copy of the summary to the buyer or buyers and shall obtain a written receipt from the buyer or buyers acknowledging receipt of the summary. Failure to give notice as required by this Section shall not excuse or exempt the buyer of the property from compliance with the requirements of this Article.
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1234. NONASSUMPTION OF LIABILITY.
In undertaking to require certain building or grading permits to include soil analyses for the presence of hazardous wastes, 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 itself or on its officers and employees, any obligation for breach of which it is liable for money damages to any person who claims that such breach proximately caused injury.
(Added by Ord. 35-99, App. 3/12/99)
SEC. 1235. CONSTRUCTION ON CITY PROPERTY.
All departments, boards, commissions and agencies of the City and County of San Francisco that authorize construction or improvements on land under their jurisdiction under circumstances where no building or grading permit needs to be obtained pursuant to the San Francisco Building Code shall adopt rules and regulations to insure that the same site history, soil sampling, analyzing, reporting, site mitigation and certification procedures as set forth in this Article are followed. The Directors of Public Health and Building Inspection shall assist the departments, boards, commissions and agencies to insure that these requirements are met.