Cathedral City Municipal Code Ch. 6.18 Hazardous Substances Cost Recovery and Penalties

A. The intended purpose of this chapter is to: (1) establish liability for reimbursement of the city's expenses incurred in connection with the city's response to a fire, explosion or other emergency proximately caused by a release of a hazardous substance; (2) establish liability for reimbursement of the city's expenses incurred in connection with the city's response to an unlawful release or threatened release of a hazardous substance not involving an emergency; and (3) establish civil and criminal penalties for the unlawful release or threatened release of a hazardous substance.

B. This chapter is not intended to regulate any area which is fully occupied by state or federal law.

(Ord. 531 § 3, 2000)

The following definitions shall apply to this chapter.

"Abatement activities"

means those collective activities which are conducted in connection with a response to a release or threatened release of a hazardous substance and/or a hazardous substance emergency, the removal of hazardous substances, a site investigation, and/or the cessation of conditions which have or are likely to cause an unlawful release of a hazardous substance.

"Business concern"

means any sole proprietorship, corporation, association, firm, partnership, joint stock company, limited liability company, trust or other form of commercial organization, joint stock company, limited liability corporation.

"City"

means the City of Cathedral City.

"Fire chief"

means the fire chief of the city of Cathedral City or such other person as may be designated by the city manager. The fire chief is designated as the city official responsible for administering and enforcing this chapter.

"Hazardous substance"

means a substance that, because of its quantity, concentration, or physical or chemical characteristics, poses a significant present or potential hazard to human health and safety, wildlife, or to the environment. "Hazardous substance" includes, but is not limited to, any of the following:

Any substance defined as a "hazardous material" in Sections 25117, 25260, 25316, 25501 of the California Health and Safety Code;

Any substance defined as a "hazardous substance" in Sections 25281, 25316 and 25400 of the California Health and Safety Code;

Any substance defined as a "hazardous material" in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 42.U.S.C.A. § 9601;

Any substance defined as "acutely hazardous waste" in Section 25110.02 of the California Health and Safety Code;

Any substance defined as "extremely hazardous waste" in Section 25115 of the California Health and Safety Code; and

Any substance defined as "hazardous waste" in Section 25117 of the California Health and Safety Code.

"Hazardous substance emergency"

means an emergency arising from a release or threatened release of a hazardous substance or a fire or explosion which is proximately caused by the release of a hazardous substance which emergency response, in the judgment of the fire chief, is reasonably necessary to remedy or prevent an imminent substantial danger to the public health, wildlife or the environment.

"Incident"

means the subject occurrence of an unlawful release, threatened release or hazardous substance emergency.

"Release"

means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, burning, dumping or disposing of any hazardous substance so that the substance is or may be emitted into the air or discharged into or onto any land or waters, including groundwaters, or may otherwise enter the environment. "Release" as used in this section includes the abandonment of a hazardous substance.

"Removal"

includes, but is not limited to, the cleanup of released hazardous substances from the environment or the taking of other actions as may be necessary to prevent, minimize, or mitigate damage which may otherwise result from a release or threatened release, including those actions necessary to (1) monitor, assess, and evaluate the release or threatened release, (2) dispose of the removed material, (3) secure access to the site, (4) provide for alternative water supplies, and (5) temporarily evacuate and house displaced persons not otherwise provided for. For purposes of this chapter, the fire chief is designated as the city official responsible for determining those actions which are necessary to prevent, minimize, or mitigate damage which may otherwise result from a release or threatened release of a hazardous substance.

"Response"

includes, but is not limited to, assessment, isolation, stabilization, containment, removal, evacuation, neutralization, transportation, rescue procedures, or other activities necessary to ensure the public safety during or immediately following a hazardous substance emergency or an unlawful release or threatened release of a hazardous substance. For purposes of this chapter, the fire chief is designated as the city official responsible for determining the nature and the scope of the response necessary to ensure the safety of the public, wildlife and the environment.

"Responsible person"

means the individual or business concern whose conduct or conduct of its employees, agents or contractors was a proximate cause of the incident. A "responsible person" within the meaning of this chapter may include, but is not limited to, any of the following:

The owner of the subject premises;

The person or persons whose negligent or wilful act or omission proximately caused the incident;

The person or persons who owned or had custody or control of the hazardous substance at the time of the incident without regard to fault or proximate cause;

The person or persons who owned or had custody or control of the container which held the hazardous substance at the time of or immediately prior to the incident without regard to fault or proximate cause; and/or

The owner, or operator if other than the owner, of a business where the incident occurred without regard to fault or proximate cause.

"Site investigation"

means those actions that are necessary to (1) determine the full extent of a release or threatened release of a hazardous material, (2) identify the public health and safety or environmental threat posed by the incident, (3) collect data on possible remedies, and (4) otherwise evaluate the hazardous materials release site for the purpose of determining the cause of the incident, identifying the responsible person and implementing removal actions.

"Subject premises"

means the site of the incident.

"Threatened release"

means a condition creating a substantial probability of harm, when the probability and potential extent of harm makes it reasonably necessary to take immediate action to prevent, reduce, or mitigate damages to persons, property or the environment.

"Unlawful release"

means any release of a hazardous substance which is in violation of federal, state or local laws.

(Ord. 531 § 3, 2000)

A. Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in Section 6.18.040 of this chapter, any responsible person shall be jointly and severally liable to the city for the full and total cost of abatement activities arising from a response to a hazardous substance emergency or an unlawful release or threatened release, including but not limited to:

1. All of the city's out-of-pocket expenses for labor and materials used in connection with the incident;

2. All of the city's out-of-pocket expenses for removal of any hazardous substance conducted in connection with the incident; and

3. All of the city's out-of-pocket expenses for any site investigation conducted in connection with the incident.

B. The amount of the "out-of-pocket" expenses shall be determined in accordance with the normal accounting practices of the city and shall be based on such cost data as the city uses in its own accounting.

C. The foregoing costs shall be assessed against the responsible person in accordance with the procedures set forth in this chapter.

(Ord. 531 § 3, 2000)

There shall be no liability under Section 6.18.030 for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance or the hazardous substance or hazardous emergency and the damages resulting therefrom were caused solely by:

A. An act of God;

B. An act of war;

C. An act or omission of a third party other than an employee or agent of the person charged, or other than one whose acts or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the person charged if the person charged establishes by a preponderance of the evidence that:

1. He or she exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and

2. He or she took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeable result from such acts or omissions;

D. Any combination of the foregoing paragraphs;

E. The fire chief shall determine whether a responsible person has established by a preponderance of the evidence that the responsible person is not liable.

(Ord. 531 § 3, 2000)

It is a public nuisance to cause or permit a release or threatened release of a hazardous substance.

(Ord. 531 § 3, 2000)

The fire chief may order the summary abatement of any public nuisance conditions caused by a release or threatened release of a hazardous substance by utilizing the procedures set forth in Chapter 13.110 of this code.

(Ord. 531 § 3, 2000)

A. Any debt incurred as a result of liability to the city under Section 6.18.030 shall constitute a debt of such person or persons to the city and may be collected by the city as follows:

1. Recovery of Costs Where Owner of Subject Premises is a Responsible Person. If the owner of the subject premises is determined by the fire chief to be a responsible person within the meaning of this chapter, all costs for which liability is imposed pursuant to this chapter shall be recoverable in the manner provided by Chapter 13.120 of this code; and/or

2. Recovery of Costs Where Responsible Person is not the Owner of the Subject Premises. Where the fire chief determines that a responsible person is other than the owner of the subject premises, the amount of such costs for which liability is imposed pursuant to this chapter is a debt owed to the city which shall be recoverable in a civil action pursuant to Section 3.10.010 of this code and shall be in addition to any other fees or penalties authorized by law.

B. Payment of any charge hereunder shall not relieve a person or entity, its employees, agents or contractors from compliance with other applicable laws rules, regulations or remedies.

(Ord. 531 § 3, 2000)

A. Within a reasonable period of time following the hazardous substance emergency or unlawful release or threatened release of a hazardous substance, the fire chief shall make a written report to the city manager which sets forth the following:

1. The identity of the persons or entities determined to be responsible for the hazardous substance emergency and/or unlawful release or threatened release of a hazardous substance and the facts and circumstances which established such persons were the proximate cause of the emergency and/or unlawful release or threat of release;

2. The names and addresses of the persons entitled to receive notice of the abatement cost report;

3. An explanation of a determination not to hold liable a responsible person in accordance with Section 6.18.040 including an explanation of the evidence upon which the fire chief relied to make such determination;

4. A description of the response, removal and site investigation activities conducted in connection with the subject incident;

5. A full accounting of the amount of out-of-pocket expenses incurred in the response, removal and site investigation conducted in connection with the subject incident;

6. A determination that the amount of the costs set forth in the abatement cost report are accurate and reasonable;

7. If the incident involved an emergency response, an explanation of the imminent danger posed to the public health and safety or to wildlife or the environment;

8. If more than one responsible person has been identified, the percentage of fault attributed to each such responsible person and the total amount of costs to be assessed upon each such person which shall be based upon the percentage of fault;

9. Notice of the opportunity to appeal the amount and the reasonableness of the abatement costs pursuant to Section 6.18.110;

10. If the owner of the subject premises is determined by the fire chief to be a responsible person within the meaning of this chapter, notice of the city's intention to make the final and approved abatement costs a special assessment against the property; and

11. If the responsible person(s) is other than the owner of the subject premises, notice of the city's intention to file a civil action against such person(s) pursuant to Section 6.18.070.

(Ord. 531 § 3, 2000)

The abatement cost report and any amended or supplemental reports shall be served upon the record owner and/or any agent having charge or control of the subject premises and any persons determined to be a responsible person within the meaning of this chapter. The failure of any such person(s) to receive a copy of the cost report shall not affect the validity of any proceedings or actions taken under this chapter nor shall the failure of the code compliance officer or authorized agent to serve any person required herein to be served invalidate any proceedings hereunder as to any other person duly served or relieve any such person from any duty or obligation imposed by the provisions of this chapter.

(Ord. 531 § 3, 2000; Ord. 776 § 12, 2016)

Service of a copy of the abatement cost report shall be made in the manner provided by Section 13.120.060 of this code.

(Ord. 531 § 3, 2000)

Any person who is determined to be responsible for payment of abatement costs pursuant to this chapter or any person possessing a legal or equitable interest including, but not limited to, a leasehold interest in real property which is subject to a special assessment to recover abatement costs pursuant to this chapter may appeal from the abatement cost report to the administrative hearing officer. Such appeal shall be limited to the amount of the abatement costs and the reasonableness of the abatement performed and shall be conducted in the manner provided by Chapter 13.130 of this code.

(Ord. 531 § 3, 2000)

The form for filing an appeal of an abatement cost report shall be the same as the form set forth in Section 13.120.100 of this code.

(Ord. 531 § 3, 2000)

The time in which to file an appeal of an abatement cost report shall be the same as set forth in Section 13.120.110 of this code.

(Ord. 531 § 3, 2000)

The filing fee for filing an appeal of an abatement cost report shall be the same as set forth in Section 13.120.120 of this code.

(Ord. 531 § 3, 2000)

The city clerk or designee shall determine whether an appeal of an abatement cost report is complete in the manner provided by Section 13.120.130 of this code and if the appeal is determined to be incomplete, a notice of incomplete filing shall be served in the manner provided therein. The city clerk or designee shall present a complete appeal filed pursuant to this chapter to the administrative appeals officer.

(Ord. 531 § 3, 2000)

Collection of the abatement cost assessed pursuant to this chapter shall be stayed during the pendency of an appeal therefrom which is properly and timely filed pursuant to this chapter.

(Ord. 531 § 3, 2000)

Failure to timely and properly file an appeal from an abatement cost report shall constitute a waiver of all rights to an appeal of the abatement cost report or any portion thereof. The determination that the amount of the costs set forth in the abatement cost report are accurate and reasonable shall be deemed final on the day the abatement cost report was either personally served, or if served by mail, the date the abatement cost report was deposited in the mail.

(Ord. 531 § 3, 2000)

Any person assessed costs under Section 6.18.030 shall pay all costs within the time provided by Section 13.120.170 of this code.

(Ord. 531 § 3, 2000)

If the costs are not paid within thirty calendar days from the date the cost report becomes due, the costs shall become a special assessment against that parcel as provided by Section 13.120.180 of this code.

(Ord. 531 § 3, 2000)

Notice of the imposition of a special assessment shall be sent in the manner provided by Section 13.120.190 of this code.

(Ord. 531 § 3, 2000)

The notice of special assessment shall be filed and recorded in the office of the county recorder.

(Ord. 531 § 3, 2000)

Subject to the requirements applicable to the sale of property pursuant to Section 3691 of the Revenue and Taxation Code, the city may conduct a sale of vacant residential developed property for which the payment of an assessment is delinquent.

(Ord. 531 § 3, 2000)

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 condition that may be abated pursuant to this chapter, excepting any conditions abated pursuant to California Health and Safety Code Section 17980, the city is entitled to recover treble the costs of abatement from such owner.

(Ord. 531 § 3, 2000)

Any person or entity, its employees, agents or contractors, who causes, permits or is responsible for an unlawful release or threatened release of a hazardous substance and/or a hazardous substance emergency within city limits, upon notification by the fire chief, shall immediately stop all activities causing or likely to cause reoccurrence or continuation of such release, threat of release and/or emergency and shall not resume such activities unless and until so directed by the fire chief or designee.

(Ord. 531 § 3, 2000)

It is unlawful and a misdemeanor offense to cause or permit a release or threatened release of a hazardous substance. Any person or entity determined to be a responsible person within the meaning of this chapter or any person responsible for committing a public nuisance pursuant to Section 6.18.160 shall be deemed to have committed a violation of a misdemeanor which shall be subject to the provisions set forth in Chapter 13.70 of this code, including, but not limited to, the imposition of any and all criminal penalties set forth therein.

(Ord. 531 § 3, 2000)

Any person convicted of a misdemeanor shall, for each separate violation of this chapter, be required to pay all applicable civil fines in addition to any misdemeanor penalties set forth in Chapter 13.70 of this code.

(Ord. 531 § 3, 2000)

The city may issue an administrative citation pursuant to Chapter 13.58 of this code to any person responsible for committing or causing a release or threatened, release of a hazardous substance. Nothing in this section shall preclude the city from also issuing a misdemeanor citation upon the occurrence of the same offense on separate day.

(Ord. 531 § 3, 2000)

The city may apply any or all appropriate remedies identified in Chapters 13.140 and 13.150 of this code to any person or entity determined to be a responsible person within the meaning of this chapter or any person responsible for causing or permitting a release or threatened release of a hazardous substance.

(Ord. 531 § 3, 2000)

The prevailing party in any proceeding conducted pursuant to this chapter and associated with the abatement of a public nuisance shall be entitled to recovery of attorneys' fees incurred in any such proceeding. In no action, administrative proceeding, or special proceeding shall an award of attorney's fees to a prevailing party exceed the amount of reasonable attorney's fees incurred by the city in the action or proceeding.

(Ord. 531 § 3, 2000; Ord. 776 § 13, 2016)