HomeMy WebLinkAboutStaff Report 14662
City of Palo Alto (ID # 14662)
City Council Staff Report
Report Type: Information Reports Meeting Date: 9/27/2022
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Summary Title: Hazardous Materials Ordinance Informational Report
Title: Informational Report on the City's Existing Hazardous Materials
Ordinance and How it Affects Residential Development
From: City Manager
Lead Department: Planning and Development Services
Recommendation:
This is an information report describing the results of staff’s research regarding the implications
of the City’s existing Hazardous Materials Ordinances (HazMat). No action is required now. Staff
intends to return to the Planning and Transportation Commission (PTC) and City Council in the
future to add clarifying language to the existing ordinance.
Background:
On March 21, 2022, during its consideration of the City’s Housing Element update, the City
Council reviewed and endorsed a recommended list of housing inventory sites. These sites
were identified by staff, the Housing Element Working Group, and the Planning and
Transportation Commission. This list of housing sites contains areas where the City anticipates
planning for at least 6,600 housing units over the next eight-year housing cycle. The sites
include locations within the Stanford Research Park and other industrial areas of the City.
Through a regular departmental coordination meeting between the City’s Planning and Building
Divisions, staff noted an increase in requests for tenant improvements to establish lab space in
various locations in the City, which could impact the Council’s housing policy interests. These
facilities typically contain hazardous materials that are regulated by local, State, and Federal
requirements. The Zoning Code currently prohibits certain uses of hazardous materials from
being located within 300 feet of a residentially zoned property. A conditional use permit is
required for a business to handle, store, or use hazardous materials when there is a residential
zone located between 300 and 600 feet of the subject site.
Staff has since obtained more information about the pending applications and reviewed the
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City’s regulatory framework and procedures for processing applications with hazardous
materials. Based on this review, staff believes that the existing ordinance provides sufficient
safeguards to allow for housing to proceed in the areas the City Council has already
recommended. If a Tier 2 Hazardous Material Facility (HMF) would alter the availability of a
housing inventory site, staff can return to City Council to address the issue.
Discussion:
City Ordinance No. 5381 defines Tier 1 and Tier 2 HMFs1 by reference to California Health and
Safety Code Division 20, Chapter 6.95, but it was not immediately clear to staff which parts of
that state law were relevant. The Fire department personnel and consultant the City had
retained to perform this work in 2016 no longer work with the City. Staff was unable to find
enough information in the archived files associated with that code update to determine the
answer quickly. As a result, staff revisited staff reports from when Ordinance 5381 was
adopted, as well as the relevant Building and Fire codes, to understand how to classify facilities
that propose hazardous material storage.
Ordinance 5381 established multiple trigger points to determine whether a facility will qualify
as a Tier 1 or 2 HMF. The first trigger points is identified in Palo Alto Municipal Code (PAMC)
18.04.030(a)(66)(A) where it identifies that a Hazardous Materials Tier is “a manufacturing or
processing use that utilizes, handles, and/or stores particular types and quantities of hazardous
materials.” Throughout various land use table in the municipal code, only four uses fall under
the Manufacturing and Processing category: Research and Development, Manufacturing,
Warehousing and Distribution, and Recycling Centers. This would mean that if a use isn’t one of
these four uses, then it would never be classified as any type of HMF; even if the site might
meet other HMF requirements regarding chemical storage on site (e.g. community center or
school pools).
In establishing the existing definitions in PAMC 18.04.030(a)(66) for Tier 1 and Tier 2 HMFs, the
staff report associated with Ordinance 5381 equated another trigger threshold to the
1 Tier 1 means uses with quantities of hazardous materials that are not defined as Toxic or Highly Toxic hazardous
materials and that are both above the threshold quantities in Health and Safety Code Division 20, Chapter 6.95 and
below the Title 19 thresholds of the California Code of Regulations.
Tier 2 means uses with quantities of Toxic or Highly Toxic hazardous materials that are both above the threshold
quantities in Health and Safety Code Division 20, Chapter 6.95 and below the Title 19 thresholds of the California
Code of Regulations.
Tier 3 means uses with quantities of hazardous materials above the Title 19 thresholds of the California Code of
Regulations.
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requirements to submit a Hazardous Materials Business Plan (HMBP).2 An HMBP is required
through the County EPA’s Certified Unified Program Agency (CUPA) for facilities that store, use, or
handle an amount equal to or greater than 55 gallons, 500 pounds, or 200 cubic feet of regulated
material on-site. Ordinance 5381 also redefined uses that stored hazardous materials,
regardless of toxicity, above the quantities specified in Title 19 of the California Code of
Regulations (Title 19) as Tier 3 facilities, and prohibited them throughout the City. Effectively,
this created a floor and a ceiling for hazardous material classification in Palo Alto.
Fire Department staff have highlighted that the 55-gallon, 500-pound, or 200-cubic foot
thresholds have been long-standing triggers for the creation of an HMBP and have not
substantially changed since their initial adoption. The Fire Department staff noted, however,
that the list of chemicals identified in Title 19 is not an exhaustive list nor is it treated as a cap
on the total quantity of chemicals that can be stored on-site by other jurisdictions, just Palo
Alto’s cap. As a result, chemicals that do not appear on Title 19 would have no limit to the
allowable quantity that could be stored on site. There does not appear to be an overt policy in
the Zoning, Building, or Fire code to limit the quantity of chemicals stored on site which are not
identified in Title 19. Additionally, the Fire department felt that creating a limit for non-
specified chemicals would be arbitrary; there is no obvious regulation or policy in other sections
of the Fire code to clearly link to a commonly understood limit.
Per the Building Code, hazardous materials are stored within Control Areas in a building. Each
Control Area has a Maximum Allowable Quantity (MAQ) that is permitted to be stored within
that space. The MAQ stored within a Control Area may be increased depending on how the
storage facility is designed/improved (e.g. with fire sprinklers, ventilation, etc.). Depending on
the size and number of building stories, the Building Code allows multiple Control Areas on
each floor. Only when the quantities of chemicals stored exceed the MAQs of the Control Areas
will a storage space be required to be classified as an H occupancy. Toxic and highly toxic
chemicals that exceed the MAQ allowances are stored within an H-4 Building Code occupancy
class. This is consistent with the definition of toxic and highly toxic hazardous materials that
was adopted under Ordinance 5831.3
2 Santa Clara County Department of Environmental Health's Hazardous Materials Compliance Division is the CUPA
and administers the Hazardous Waste Generator Program and Tiered Permitting (California Health and Safety Code
Chapter 6.5), Underground Storage Tank Program (California Health and Safety Code Chapter 6.7) and the Risk
Management Program (California Health and Safety Code Chapter 6.95). As a Participating Agency, the Palo Alto
Fire Department administers the Hazardous Materials Business Plans requirement (California Health and Safety
Code Chapter 6.95) and Aboveground Storage Tank (California Health and Safety Code Chapter 6.67).
3 PAMC 18.04.030(a)(66)(B): “Toxic and Highly Toxic hazardous materials” means substances defined in the
California Fire Code Chapter 2, as amended, and as adopted and amended by Title 17 of the City Municipal Code,
and subject to requirements of “High-hazard Group H-4" of the State Building Code, as buildings that use, handle,
or store hazardous materials that are considered health hazards.
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To summarize, staff determined the following criteria are necessary to determine whether a
facility should be classified as a Tier 1 or Tier 2 HMF:
Table 1: Hazardous Materials Tier Qualifications
Tier 1 HMF Qualifications Tier 2 HMF Qualifications
a. Is the existing or proposed use a
manufacturing or processing use (R&D,
Manufacturing, Warehousing and
Distribution, or Recycling Center)
b. A facility must store hazardous
materials equal to or above 55 gallons,
500 pounds, or 200 cubic feet;
c. The quantities of hazardous chemicals
stored on site cannot exceed the
amounts listed in Title 19.
a. Is the existing or proposed use a
manufacturing or processing use (R&D,
Manufacturing, Warehousing and
Distribution, or Recycling Center)
b. A facility must store toxic or highly
toxic hazardous materials equal to or
above 55 gallons, 500 pounds, or 200
cubic feet;
c. These are stored within an H-4 building
occupancy;
d. The quantities of toxic or highly toxic
hazardous chemicals stored on site
cannot exceed the amounts listed in
Title 19.
Four important distinctions arose from this research:
1) If a use is not a Manufacturing and Processing use, then it would never be classified as
any type of HMF; even if the site might meet other HMF requirements (e.g. community
center or school pools).
2) Any chemicals stored on site, regardless of their toxicity, that are below 55 gallons, 500
pounds, or 200 cubic feet for both Tiers are not classified as any type of HMF; This is
true even if the quantity of toxic or highly toxic chemicals held on site exceeds the MAQ
allowances and is stored in an H-4 occupancy.
3) Title 19 is a list that is managed by the federal government, is not exhaustive, and is only
treated as a cap on the total quantities of chemicals that could be stored on a property
within the City of Palo Alto. There is no commonly understood cap for chemicals that
are not on the Title 19 list.
4) The policies that apply to Tier 2 HMFs in Palo Alto are narrowly focused.
Policy Issue: Research and Laboratory Uses as Potential Constraints on Housing Inventory Sites
Through the Housing Element update, the City is identifying housing inventory sites in the
Stanford Research Park and multiple industrial/manufacturing zone districts. Per PAMC
18.20.040(b)(2) and 18.42.200(c)(vi)(b), new Tier 2 hazardous materials facilities must be
located 300 feet away from residential land uses and sensitive receptors.
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There were several pending applications involving hazardous materials on file with the City,
including multiple applications within the Stanford Research Park. Staff has been able to
confirm that those applications do not propose Tier 2 HMFs on site nor do they propose to
expand storage facilities that would be classified as Tier 2 HMFs today, which existed prior to
the 2016 ordinance. Additionally, staff understands from Stanford University representatives
that, as landowner, the University does not currently permit new Tier 2 hazardous materials
from being handled, stored, or used within the Research Park.
Three other pending applications are in the GM and ROLM districts; it is unknown at this time if
the applicants for those proposed facilities intend to use hazardous materials that may qualify
as a Tier 2 HMF, as staff is waiting to receive additional information from the applicants. In
conjunction with reviewing these pending applications, staff is also reviewing the presence of
existing Tier 2 facilities in Palo Alto to determine if further adjustment to the City’s Housing
Element sites are needed. New Tier 2 facilities in these districts could undermine the City’s
interest in placing more housing units in this part of the City.
Regulatory Issue: Ambiguity in the City’s Hazardous Materials Ordinances
In addition to the housing policy considerations, the different tiered hazardous materials
definitions in the Zoning Code are confusing and may warrant revision. For example, the City’s
current definitions reference quantities from the Fire Code that could be more clearly stated in
the Zoning Code. This would save the need for staff and applicants to ‘crosswalk’ between city
and state ordinances which are unfamiliar, and allow clarity for staff and applicants regarding
the areas of concern for the City. Given the chemical quantities listed in “a” of Table 1 haven’t
significantly changed since the code was adopted, staff believes this provision would not need
to be regularly updated by City Council. Other aspects, such as those listed as #1 and #2 of the
2016 Ordinance could also be clarified in a future ordinance update.
Summary of Key Issues:
Staff is seeing an increase in building permit applications for the handling, storage, and use of
hazardous materials. Depending on the type and quantity of materials being used, the
establishment of these land uses may frustrate the City’s interest in placing housing
development in certain areas of the City. While staff believes the existing ordinance provides
sufficient safeguards for the proposed housing inventory sites, staff may return in the future to
enact ordinances to prevent Tier 2 HMFs from being constructed near housing inventory sites.
Policy Implications:
There are no policy implications at this time as an emergency ordinance is not proposed. Staff is
currently focused on researching where Tier 2 HMFs may exist in the City relative to the
proposed housing inventory sites indicated in the Housing Element.
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Resource Impact:
There is no recommendation in this report. In the future, staff intends to return to the PTC to
add clarifying language to the City’s existing ordinance. This language would seek to resolve the
need to crosswalk multiple sections of the Building, Fire, and Zoning codes regarding the
quantities and criteria necessary to determine what falls under a Tier 2 Hazardous Material
Facility. Consultant services may be necessary to augment staff work. Staff has not identified a
funding source at this time but it is anticipated any costs can be absorbed through department
budgets.
Timeline:
Staff intends to return to the PTC later this year or early next year with clarifying language
about the City’s HazMat ordinance.
Stakeholder Engagement:
On August 11, 2022, staff met with representatives of the Stanford Research Park to advise the
University of the previously proposed temporary moratorium and this information report. At
that meeting, representatives from Stanford verbally agreed with staff’s understanding of the
City’s existing ordinance and acknowledged that Stanford is not intending to propose uses in
the Stanford Research Park that would fall under the Tier 2 HMF criteria listed above. Staff
communicated to Stanford that if a Tier 2 HMF were proposed near a housing inventory site,
that staff would likely return to the City Council with an emergency ordinance. Additional
outreach to the broader community would follow for the drafting of potentially new, clarifying
regulations.
Environmental Review:
No action is necessary on this item. As a result, this item is not subject to Environmental Review
by CEQA.
Attachments:
Attachment A: Ordinance 5831 (PDF)