HomeMy WebLinkAboutMINUTES - 08131985 - 1.4 (2) THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
August 13 1985 b the following vote:
Adopted this Order on y g
AYES: Supervisors Powers, McPeak, Schroder , Torlakson, Fanden.
NOES: None.
ABSENT: None.
ABSTAIN: None.
SUBJECT: Hazardous Materials Storage Tanks
The' Board received a report dated July 15 , 1985 from
County Counsel with respect to the Board' s statutory authority
to inspect and regulate above-ground hazardous materials storage tanks ;
,IT,;,IS BY THE BOARD ORDERED that the abova ;mentioned report is
REFERRED to the Hazardous Materials Task Force ,,with_a KEQUEST for a
report and recommendation to the Board .
I hereby certify that this is a true and correct copy of
an action taken and entered on the minutes of thg
Board of Supervi rs on the dat shown, D
ATTESTED:
PHIL BATCHE R, Clerk of the goard
of Superviso s arae County Administrator
By , Deputy
Orig. Dept.:
Cc: County Administrator
County Counsel
Hazardous Materials Task Force
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-Contra Costa Coup v
COUNTY COUNSEL'S OFFICE AECEIYEC?
CONTRA COSTA COUNTY tt
MARTINEZ, CALIFORNIA JUL 15
Date:
July 15 , 1985 QNIGO of
County Administrator
To:
Phil Batchelor, County Administrator
Attn: Claude L. Van Marter, Assistant Admin.
From: /
Victor J. Westman, County Counseil/" ,
Re: By: Lillian T. Fujii , Deputy County Counsel
County regulation of above-ground hazardous materials
storage tank
SUMMARY:
There is currently no express statutory authority
allowing the Board to inspect and regulate above-ground
hazardous materials storage tanks. Such statutory authority
exists only for underground hazardous materials storage
tanks. (H. &S. C. §25283 . ) Any new regulation by the County
of above-ground hazardous materials storage tanks would have
to be based upon the County' s police power; therefore, such
regulation would be limited to the unincorporated area of
the County, and it must not conflict with State of Federal
law.
Various other laws concerning different aspects of
hazardous materials storage exist, and the Board (as
governing body of most of the Fire Districts in the County
and various County Departments ) already exercises some
control over the subject.
DISCUSSION:
This responds to your 4-25-85 memorandum in which you
request our opinion as to whether the Board of Supervisors
currently has the ability to regulate and inspect
above-ground hazardous materials storage tanks as it does
for underground hazardous materials storage tanks.
1 . Any New Regulation by Board Only
Pursuant to Police Power.
Currently, there is no express state statutory
authority for the County to regulate or inspect above-ground
hazardous materials storage tanks: Any such regulation by
the County would therefore have to be authorized by the
police power.
The police power is set forth in California
Constitution Art XI , §7 , as follows :
1:
Phil Batchelor , Co. Administraor —July 15, 1984
Attn: Claude L. Van Marter
"A county or city may make and enforce within
its limits all local, police, sanitary and
other ordinances and regulations not in
conflict with general laws. "
Under the police power, the Board' s authority to inspect and
regulate above-ground hazardous materials storage tanks
would be limited to the unincorporated areas of the County
( Stirling v. Board of Supervisors of Los Angeles (1975 ] 48
Cal.App. 3d 184 , 121 Cal.Rptr. 435 ) , and may not conflict
with (be preempted by) State or Federal law. We are not
aware of any State or Federal law which prohibits or
expressly limits the Board ' s ability to regulate
above-ground hazardous materials storage tanks. However,
aspects of the field of hazardous materials are regulated by
State and Federal law, and any proposal for the County to
impose new regulations will have to be further scrutinized
for possible prohibited conflicts.
The County has regulatory authority over the
underground storage of "hazardous substances" (Health &
Safety Code §25281 (d) ) in incorporated cities because
provision therefor is made in State law, in the legislation
commonly known as the "Sher Bill. " (Health & Safety Code
§§25280 et seq. , 25283 . )
2 . Other Existing Laws.
Currently, there are a number of other statutes and
ordinances generally concerning the storage of "hazardous
materials or substances. ", (The term "hazardous materials or
substances" is placed in quotes because it is differently
defined in the various regulations on the subject. ) The
following is a brief discussion of selected laws regulating,
in one manner or another, the storage of hazardous
materials. We believe this discussion may be of interest to
the Board, especially since some of the laws already provide
the Board with a degree of control over the above-ground
storage of hazardous materials , including storage in tanks.
a. Uniform Fire Code.
The Board of Supervisors , as governing body of various
fire protection districts in the County, has adopted the
1982 edition of the Uniform Fire Code. (District Ordinances
Nos. 83-39 through 83-52 . )
Under §2 . 101 (c) of the Uniform Fire Code, the chiefs of
the districts are responsible for the enforcement of the
provisions of the Code as well as any ordinance pertaining
to the "storage, use and handling of explosive, flammable,
combustible, toxic, corrosive and other hazardous gaseous,
solid and liquid materials . " The Uniform Fire Code contains
various provisions regulating the storage of "hazardous
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Phil Batchelor, Co. Administraor —Aily 15, 1984
Attn: Claude L. Van Marter
substances" , including their storage in above-ground tanks.
(See, e.g. , Uniform Fire Code Articles 74, Compressed Gases ;
75 , Cryogenic Fluids ; 79 , Flammable and Combustible Liquids;
80, Hazardous Materials; and 82 , Liquified Petroleum Gases. )
Insofar as storage of these hazardous substances is
regulated by the adopted Uniform Fire Code, (for fire
prevention purposes) , the Board exercises some control over
the subject.
b. Hazardous Waste.
The Hazardous Waste Control Law (Health and Safety Code
§25100 et. seq. ) is extensive legislation concerning the
handling and disposal of hazardous "waste" (as opposed to
hazardous "substances" or "materials" ) .
With respect to the storage (H. &S.C. S§25123 , 25123 . 3 )
of hazardous waste (H. &S.C. S§25117, 25121, 25122 ) , the act
requires that any facility storing hazardous wastes be
licensed as a hazardous waste facility by the State
Department of Health Services. (H. &S. C. §§25201 , 25111. )
,In addition, the State Department of Health Services has the
authority to adopt standards and regulations for the
handling, processing, use, storage and disposal of hazardous
waste. (H. &S. C. §25150. )
The County is involved with hazardous waste storage to
the extent that the provisions of the Hazardous Waste
Control Law may be locally enforced through the Health
Officer and the District Attorney (H. &S.C. §25180 et seq. ) .
As you are aware, the County Health Services Department,
pursuant to H. &S.C. §25150 et seq. , County Ordinance No.
84-37 , and a Memorandum of Designation between the State and
the County, currently has the authority to license and
inspect hazardous waste generators.
We note that the California Attorney General has opined
that with respect to the processing, handling and disposal
of hazardous waste, the Hazardous Waste Control Law preempts
any local ordinance on the subject. ( 57 Ops.Atty.Gen. 159. )
c. Miscellaneous State Statutes.-
. In addition to the Uniform Fire Code and 'the Hazardous
Waste Control Law, various other statutes regulate other
aspect of the storage of "hazardous" materials. For
. example, other laws which address aspects of the storage of
materials generally considered hazardous are found in the
Agricultural Code (see e.g. , §§12980, 12981 , on storage of
pesticides) , and the Labor Code (§144. 6, toxic materials and
worker safety. )
AA c b-c-,rd order
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Phil Batchelor, Co. Administraor —JtllY *15, 1984
Attn: Claude L. Van Marter
CONCLUSON: Although the current ability of the Board
to enact ordinances regulating above-ground hazardous
materials storage tanks is restricted primarily by the
Jurisdictional limits of its police power authority, other
existing laws do cover aspects of above-ground hazardous
materials storage.
If the Board is interested in imposing additional
specific regulations on above-ground hazardous materials
storage tanks in the unincorporated area of the County, this
office recommends that the Board seek the input of the
parties listed below, as they have, or may have, expertise
in various aspects of hazardous materials storage. Of
course, we will be available to review any specific proposal
which may be of interest to the Board, or address any
further specific questions the Board may have.
LTF:df
cc: Mark Finucane, Health Services Director,
Attn: Dan Bergman
John H. deFremery, Co. Agri. Comm.
William Maxfield, Chief, Consolidated Fire Dist.
Vincent Aiello, Chief, Riverview Fire Prot. Dist.
R. W. Giese, Dir. of Bldg. Insp.
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