Alameda Municipal Code § 24-9 Releases of Hazardous Materials—cost Recovery

This Section is enacted pursuant to the charter authority of the City as well as pursuant to Government Code Sections 38773 et seq. The purpose of this Section is to require persons who are responsible for hazardous materials releases in the City to reimburse the City for the cost of abatement of such releases.

(Ord. No. 2932 N.S. § 1)

The following definitions shall apply to the construction of this section except where the context clearly indicates another meaning was intended:

a. "Abatement" means any emergency response, non-emergency response, enforcement or other effort to prevent, mitigate or remedy the actual or potential consequences of a hazardous materials release.

b. "Cost of abatement" means the direct and indirect cost actually incurred by the City for the abatement of a hazardous material release. Costs shall include, but not be limited to, labor costs of City personnel, including benefits and administrative overhead; any costs incurred for equipment, materials, and/or contract services; any costs incurred for supervision or verification of the abatement of a hazardous materials release pursuant to subsection 24-9.5(b) of this Code; any costs incurred by the City regarding the processing and recording of a lien and providing notice to a property owner as a part of its foreclosure action to enforce a lien as authorized by Government Code Section 38773.1(c)(4); and any other cost incurred by the City in the enforcement of this Section.

c. "Hazardous material" means any material that, because of its quantity, concentration, or its physical or chemical characteristics, poses a significant actual or potential hazard to human health or safety or to the environment if released onto public or private property or released into the environment. "Hazardous material" includes, but is not limited to, "hazardous waste" as that term is defined in subsection 30-2(b) of this Code, and any material which the Fire Department or its agent reasonably believes poses a significant actual or potential hazard to human health or safety or to the environment if released onto public or private property or released into the environment, whether or not that material is subsequently determined to be actually or potentially hazardous.

d. "Hazardous materials release" means: (1) the threatened or actual release, discharge, deposit, or abandonment of any hazardous material on public or private property in the City, (2) the threatened or actual release of hazardous material into the environment from public or private property in the City, and (3) the improper storage or improper use of any hazardous material in the City that threatens to or does release, discharge, deposit, abandon any hazardous material on public or private property, or threatens to or does release any hazardous material into the environment.

e. "Person" has the meaning set forth in subsection 1-2 of this Code.

f. "Responsible person" means any or all of the persons listed in subsection 24-9.4 of this Code.

(Ord. No. 2932 N.S. § 1)

a. The City Council of the City of Alameda, acting under the authority granted by the City Charter and Government Code Section 38771, hereby declares that any hazardous materials release in the City is a public nuisance subject to summary abatement and is also a violation of this Code.

b. The Fire Department is authorized to provide, or to contract for another to provide, for the abatement of any hazardous materials release in the City.

(Ord. No. 2932 N.S. § 1)

Each of the following persons is jointly and severally liable to the City for cost of abatement of a hazardous materials release in the City:

a. Any person whose negligent or willful act or omission was a proximate cause of the hazardous materials release;

b. Any person who owned or had custody or control of the hazardous material at the time of the hazardous materials release, without regard to fault or causation;

c. Any person who owned or had custody or control of the container that held the hazardous material at the time of, or immediately prior to, the hazardous materials release, without regard to fault or causation;

d. Any person who owned or was in possession of the property on which or from which the hazardous materials release occurred, without regard to fault or causation;

e. Any person who, by contract or otherwise, arranged for the disposal, treatment, or transport of the hazardous material, without regard to fault or causation, if the hazardous materials release occurred during disposal, treatment, or transport.

f. Any person who accepted hazardous materials for transport, without regard to fault or causation, if the hazardous materials release occurred during transport.

(Ord. No. 2932 N.S. § 1)

a. Study Order. In the event the Fire Chief or his or her designee reasonably determines that a hazardous materials release may have occurred, he or she may order the responsible person to perform, at the cost of the responsible person, investigative studies to determine the existence, nature and extent of the hazardous materials release. If the responsible person fails to comply within the time specified in such an order, the Fire Chief or his or her designee may take any necessary corrective action at the responsible person's cost.

b. Clean-up Order. In the even that the Fire Chief or his or her designee reasonably determines that a hazardous materials release has occurred in the City, he or she may order the responsible person to accomplish, or cause to be accomplished, at the responsible person's cost, the abatement of the hazardous materials release. If the responsible person fails to comply within the time specified in such an order, the Fire Chief or his or her designee may take any necessary corrective action, including, but not limited to, abatement of the hazardous materials release by the City or its agents at the responsible person's cost.

c. Supervision. The Fire Chief or his or her designee may take such action as necessary to supervise and to verify the adequacy of any abatement pursuant to subsection 24-9.5(b) of this Code.

(Ord. No. 2932 N.S. § 1)

a. A responsible person shall pay the City the costs of abatement and costs due under subsection 24-9.5 of this Code within thirty (30) days of the date of a bill issued for those costs.

b. If a responsible person fails to make payment to the City as required by paragraph (a) of this subsection, then the City may enforce that payment obligation against that responsible person in a debt action or enforce the payment obligation as a lien or special assessment in the manner provided in subsection 13-12.4 of this Code and as required by Government Code Section 38773.1 or Government Code Section 38771.5, as the case may be.

c. In any action or proceeding to enforce the obligations of a responsible person under this Section 24-9 in which the City elects, at the initiation of that action or proceeding, to seek recovery of its own attorneys' fees, the prevailing party shall be awarded its attorneys' fees actually and reasonably incurred in the prosecution or defense of the action or proceeding.

d. Upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that an owner of property is responsible for a hazardous materials release with respect to his, her or its property, the court may order that person to pay treble the costs of abatement.

(Ord. No. 2932 N.S. § 1)

The authority and remedies established by this Section 24-9 are in addition to any other remedy and authority established by any federal, state, or local law and resort to any lawful remedy shall not constitute an election that waives the right to pursue any other remedy permitted by law.

(Ord. No. 2932 N.S. § 1)

Nothing in this Section 24-9 shall create a right in any person to compel, or a duty in, the City to abate any hazardous materials release. Enforcement of this Section 24-9 by the City constitutes discretionary action within the meaning of Government Code Section 820.2.

(Ord. No. 2932 N.S. § 1)