ITEM 6-B
City Council Meeting 6-12-90 Santa Monica, California
STAFF REPORT
TO: Mayor and City Council
FROM: City Attorney
SUBJECT: Ordinance Adding Chapter 6 to Article V of the
Santa Monica Municipal Code to Regulate the
Manufacture, Distribution, Sale, and Recycling
of Products Which Use Ozone-Depleting Compounds
At its meeting on May 22, 1990, the City Council introduced
for first reading an ordinance regulating the manufacture,
distribution, sale, and recycling of products which use
ozone-depleting compounds. The ordinance is now presented to the
City Council for adoption.
RECOMMENDATION
It is respectfully recommended that the accompanying
ordinance be adopted.
PREPARED BY: Robert M. Myers, City Attorney
Joseph Lawrence, Assistant City Attorney
ORDINANCE NUMBER ____
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SANTA MONICA ADDING CHAPTER 6 TO ARTICLE V OF
THE SANTA MONICA MUNICIPAL CODE TO REGULATE THE
MANUFACTURE, DISTRIBUTION, SALE, AND RECYCLING OF
PRODUCTS WHICH USE OZONE-DEPLETING COMPOUNDS
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN AS
FOLLOWS:
SECTION 1. Chapter 6 is added to Article V of the Santa
Monica Municipal Code to read as follows:
CHAPTER 6 - REGULATION OF OZONE-DEPLETING COMPOUNDS
SECTION 5600. Findings. The City Council of
the City of Santa Monica finds and declares:
(a) Available scientific evidence indicates
that chlorofluorocarbons ("CFCs") and Halons, when
discharged into the environment, deplete the earth's
protective ozone layer, allowing increased amounts of
ultraviolet radiation to penetrate the earth's
atmosphere. These conditions pose a long term danger
to human health, life, and the earth's environment by
increasing such harms as skin cancers, cataracts,
suppression of the immune system, and damage to crops
and aquatic life.
(b) The unnecessary release of Halons in
testing fire extinguishing systems is a primary
source of the release of Halons into the earth's
atmosphere.
(c) CFCs are widely used in refrigeration and
air conditioning systems in a form commonly known as
"Freon," as well as in insulation, building products,
and packaging materials. Each of these substances
leach CFCs into the atmosphere.
(d) There is currently no economically
feasible technology available as a substitute for the
Freon used in refrigeration and air conditioning
systems, and the Halon used in certain fire
extinguishing systems.
(e) The reclamation and recycling of Freon
from auto air conditioning units alone could
eliminate nearly 20 percent of all CFC chemicals used
nationally.
(f) In light of the current and future
limitations on the production of CFCs both nationally
and internationally, the development and utilization
of environmentally safe alternatives to CFCs at this
time will create a competitive advantage to those
businesses electing to use such alternatives prior to
the effective date of any comprehensive
international, federal, state, or local regulation
banning the use of CFCs and Halons.
(g) The Montreal Protocol on Substances that
Deplete the Ozone Layer (an international agreement)
which was ratified by the United States on April 21,
1988, and which became effective January 1, 1989,
calls for reductions in the production, importation,
and exportation of CFCs to fifty percent (50%) of the
worldwide 1986 levels, by 1998, and for a freeze on
the production of Halon at 1986 levels beginning
January 1, 1992.
(h) Recent discoveries have shown that the
reductions in CFC levels set forth in the Montreal
Protocol may be insufficient to remedy the global
health and safety risk created from the release of
CFCs and Halons.
(i) The City of Santa Monica supports all
international, federal, and state bans on uses of
CFCs; however, until such bans have been adopted by
the appropriate agencies, responsible action on the
part of the City of Santa Monica is necessary to
reduce CFC and Halon use in order to promote the long
term health, safety, and welfare of the general
public, and the environment.
(j) The release of CFCs and Halons into the
atmosphere is a global danger to the environment.
Any reduction in the release of these materials
within the City of Santa Monica will reduce this
global danger and will result in a benefit to the
overall health and safety of the public inside and
outside the City of Santa Monica.
(k) The City of Santa Monica encourages the
research and development of environmentally safe
alternative technologies and products to replace the
use of CFCs and Halons.
SECTION 5601. Definitions. For purposes of
this Chapter, the following words and phrases shall
have the following meanings:
(a) Chlorofluorocarbons ("CFCs"). CFCs shall
mean the family of substances containing carbon,
fluorine, and chlorine, and having no hydrogen atoms
and no double bonds, and which includes, without
limitation, CFC-11, CFC-12, CFC-113, CFC-114, and
CFC-115. Such substances include "Freon," which is
used in air conditioning and refrigeration units,
degreasers and solvents used in the cleaning of
metals and electronic components and rigid and
flexible foam used as packaging materials and
insulating materials, and flexible foam used in car
seats, bedding, and furniture.
(b) Halon. Halon shall mean any fully
halogenated carbon compound containing bromine,
chlorine, or fluorine, and includes, without
limitation, Halon-1301, Halon-1211, and Halon 2402.
(c) Ozone-Depleting Compound. Ozone-Depleting
Compound shall mean any CFC, Halon, the chemical
compounds of methyl chloroform and carbon
tetrachloride, or any other chemical compound
designated by the City Council by resolution as being
an ozone-depleting compound.
(d) Licensed Health Care Facility. A licensed
health care facility is any health care facility
licensed either by the State of California Department
of Health or by the United States Department of
Health and Human Services.
(e) CFC Food Packaging. CFC food packaging is
any container, carton, box, cup, lid, plate, bowl,
tray, or wrapping of any kind which is or may be used
to contain, package, store, insulate, or serve any
food or beverage, that contains any CFC or in which
any CFC has been used in the manufacturing or
production of such item.
(f) Rigid or Flexible Foam Containing or
Utilizing an Ozone-Depleting Compound. A rigid or
flexible foam containing or utilizing an
ozone-depleting compound is any rigid or flexible
foam, such as Styrofoam or thermoplastic foam,
building insulation, or any other rigid or flexible
foam that contains within any closed cell any
ozone-depleting compound or that was produced by
using an ozone-depleting compound in any manner
during the manufacturing process.
SECTION 5602. Prohibition on the Manufacture,
Sale, or Distribution of Products Using
Ozone-Depleting Compounds.
(a) Except as otherwise provided in this
Section, no person within the City of Santa Monica
shall:
(1) Use any ozone-depleting compound to
manufacture, produce, cleanse, degrease, or sterilize
any substance or product.
(2) Package any product with rigid or
flexible foam containing or utilizing ozone-depleting
compounds.
(3) Purchase, obtain, store, sell,
distribute, or otherwise provide to any person any
CFC food packaging material.
(4) Recharge a refrigeration, air
conditioning, or Halon fire suppression unit or
system that contains a leak of an ozone-depleting
compound without repairing the leak of such compound.
(b) Exemptions. This Section shall not apply
to the study or research of the effect of the release
of ozone-depleting compounds into the environment,
where such compounds are directly necessary for
conducting such study or research.
(c) Subsection (a)(1) of this Section shall
not apply to any Licensed Health Care Facility
operated either for profit or not for profit,
including any medical research conducted at such
facility, or to manufacturers of any "drug" or
medical "device" as the terms "drug" and "device" are
defined in Title 21, U.S.C. Sections 321(g) and
321(h) of the Federal Food, Drug, and Cosmetic Act,
but only if the manufacturer is required to comply
with the Good Manufacturing Practice requirements
adopted pursuant to Title 21 U.S.C. Section 360j(f).
The City Council by resolution may repeal this
exemption if it finds that materials which do not
cause ozone depletion are available for use by
Licensed Health Care Facilities. All manufacturers
of drugs or medical devices that use ozone-depleting
compounds shall adopt and implement a recycling
system whereby any ozone-depleting compound used as a
sterilant by such manufacturers shall be recaptured
and recycled in accordance with a recycling plan
filed with and approved by the City.
(c) The effective date for subsection (a)(1)
of this Section shall be January 1, 1992.
Subsections (a)(2), (a)(3), and (a)(4) of this
Section shall be effective January 1, 1991.
SECTION 5603. Prohibition on the Use of Ozone-
Depleting Compounds in Building Construction.
Effective January 1, 1992, in the construction,
remodel, or repair of any building or structure, no
person shall install any product, including rigid or
flexible foam, which contains or uses any
ozone-depleting compound. Simultaneous with the
filing of a building permit application, the
applicant shall submit a written verification
certifying that no ozone-depleting compound will be
installed in any building or structure.
SECTION 5604. Recycling of Ozone-Depleting
Compounds Used as Coolants in Mobile Refrigeration or
Air Conditioning Systems. No person shall install,
repair, service, or maintain any mobile air
conditioning or refrigeration unit or system without
utilizing equipment and procedures designed to
recapture and recycle any ozone-depleting compound
that may be used as a coolant in such refrigeration
or air conditioning unit or system. By January 15,
1991, and yearly thereafter, all businesses that
install, service, repair, or maintain units or
systems described in this Section shall submit a
recycling plan to the City in a form prescribed by
the Director of the Department of General Services,
which shall indicate equipment and procedures used to
recycle and recapture ozone depleting compounds.
Each business shall certify that all appropriate
employees have received training in the utilization
of the equipment and procedures during the last year.
SECTION 5605. Restriction on Sale of Ozone-
Depleting Compounds Used as Coolants in Refrigeration
or Air Conditioning Units. Effective January 1,
1992, no person shall sell any ozone-depleting
compound for use as a coolant in a refrigeration or
air conditioning unit or system to any person who
does not possess evidence of operating a recycling
system pursuant to a recycling plan filed and
approved in accordance with Section 5604 of this
Chapter.
SECTION 5606. Release of Halon. No person
shall test any Halon fire suppression system by
causing the release of Halon, except to extinguish a
fire or if a reclamation system is utilized in
accordance with Section 5607.
SECTION 5607. Recycling of Halons from
Portable Fire Extinguishing Systems or Units.
Effective January 1, 1992, no persons shall repair,
service, or maintain Halon fire extinguishing systems
or units without operating a reclamation system that
recaptures Halon or causes it to be recycled without
escape into the atmosphere. By January 15, 1992, and
yearly thereafter, all businesses that repair,
service, or maintain Halon fire extinguishing systems
or units shall submit a recycling plan to the City in
a form prescribed by the Director of the Department
of General Services, which shall indicate equipment
and procedures used to recycle and recapture Halon
compounds. Each business shall certify that all
appropriate employees have received training in the
utilization of the equipment and procedures during
the last year.
SECTION 5608. Exemption.
(a) Any person may apply to the City Manager
for an exemption from any Section of this Chapter by
submitting an application in a form approved by the
City demonstrating that no technically or
economically feasible alternative is currently
available for such person's use of an ozone-depleting
compound. To be accepted, the application must be
accompanied by payment of a processing fee in an
amount which shall be set by resolution of the City
Council.
(b) The applicant shall specify:
(1) The nature of his or her business.
(2) The name and quantity of each
ozone-depleting compound used by the business.
(3) All processes and materials in which
the business uses the compounds.
(4) The measures taken to reduce the use
of the compound(s), including whether and when a
reclamation or recycling system has been or will be
implemented.
(5) Identification of any mitigation
measures the business will employ or participate in
to counteract its use of the compound(s).
(6) Identification of all alternatives
to ozone-depleting compounds which the business can
use, including the health, safety, environmental, and
economic impact of each alternative if it was used by
the business.
(7) The hardship that will result to the
business in the event that the exemption is not
granted, including the number of employees affected.
(8) The length of time for which the
exemption is sought, including what steps the
business or industry has taken or will take to
develop a technically or economically viable
alternative to the use of ozone-depleting compounds,
and when such alternative is expected to be
available.
(c) No later than ten (10) days after filing
an exemption application, the applicant shall cause
to be published in the official newspaper of the
City, a notice of intention to seek an exemption
pursuant to this Chapter. The notice shall indicate
the name and address of the applicant, as well as the
name and address of the business for which an
exemption is sought, the names of all compounds for
which the exemption is sought, and the proposed
duration of the exemption. The notice shall specify
that any interested party may obtain a copy of the
exemption application from the City Manager's office
and that any person may submit written comments
concerning the application to the City Manager within
thirty (30) days after the publication date. Within
ten (10) days after the date of publication, the
applicant shall file with the City Clerk a copy of
the notice as published together with an affidavit
made by a representative of the official newspaper
certifying to the fact of publication. The City
Clerk shall post a copy of the notice until the end
of the public comment period.
(d) The City Manager shall issue written
findings granting or denying the application. The
findings shall identify which compounds are covered
by any exemption granted and for each compound
granted an exemption, shall specify the length of the
exemption. No exemption may be granted for a period
greater than two (2) years. Ninety (90) days prior
to the expiration of the exemption's term, the
applicant may seek an extension of the exemption for
no more than two (2) additional years. No business
shall be granted an exemption, including extensions,
beyond January 1, 1996.
(e) Neither the filing of an exemption
application nor the granting of an exemption pursuant
to this Section, shall affect in any manner any
criminal or civil proceeding brought to enforce any
provision of this Chapter.
(f) The decision of the City Manager to grant
or deny an exemption application shall be final on
the date that the decision is rendered and not
appealable to the City Council or to a Hearing
Officer pursuant to any provision of this Code. The
decision shall be reviewable by petition filed
pursuant to Code of Civil Procedure Section 1094.5,
provided such review is sought not later than the
ninetieth (90th) day following the date on which the
decision becomes final in accordance with Section
1400 of this Code and Code of Civil Procedure Section
1094.6.
SECTION 5609. Enforcement.
(a) Each violation of this Chapter shall
constitute a separate offense and each day a
violation of this Chapter continues shall constitute
a separate offense.
(b) Any violation of this Chapter shall be a
misdemeanor.
(c) In addition to the penalties provided in
this Section, any condition caused or permitted to
exist in violation of any of the provisions of this
Chapter shall be deemed a public nuisance and may be
abated by a civil action brought by the City Attorney
on behalf of the City of Santa Monica.
SECTION 2. Any provision of the Santa Monica Municipal
Code or appendices thereto inconsistent with the provisions of
this Ordinance, to the extent of such inconsistencies and no
further, are hereby repealed or modified to that extent necessary
to affect the provisions of this Ordinance.
SECTION 3. If any section, subsection, sentence, clause,
or phrase of this Ordinance is for any reason held to be invalid
or unconstitutional by a decision of any court of any competent
jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby
declares that it would have passed this Ordinance, and each and
every section, subsection, sentence, clause, or phrase not
declared invalid or unconstitutional without regard to whether
any portion of the Ordinance would be subsequently declared
invalid or unconstitutional.
SECTION 4. The Mayor shall sign and the City Clerk shall
attest to the passage of this Ordinance. The City Clerk shall
cause the same to be published once in the official newspaper
within 15 days after its adoption. Except as otherwise provided,
this Ordinance shall be effective January 1, 1991.
APPROVED AS TO FORM:
____________________
ROBERT M. MYERS
City Attorney