Fremont Municipal Code Art. X Remedial Action

A permit may be subjected to remedial action for any of the following causes arising from the acts or omissions of the permittee either before or after a permit is issued:

(a) Fraud, willful misrepresentation, or any inaccurate or false statement in applying for a new or renewed permit;

(b) Fraud, willful misrepresentation, or any inaccurate or false statement in any report required by this chapter;

(c) Failure to abate, correct or rectify any noncompliance within the time specified in the notice of noncompliance;

(d) Failure to correct conditions constituting an unreasonable risk of an unauthorized discharge of hazardous materials within a reasonable time after notice from a governmental entity;

(e) Failure to abide by the remedial action imposed by the city; or

(f) Failure to appropriately characterize and remediate, in a timely manner, any known or suspected environmental contamination on site. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121000.)

Unless city finds that an immediate suspension under Section 8.35.550 is necessary to protect the public health or safety from imminent danger, the city shall, prior to taking remedial action, issue a notice of noncompliance for failure to comply with the provisions of this chapter for any permit conditions or any provisions of the hazardous materials management plan. Such notice shall be sent by certified mail to permittee and such notice may be copied by first-class mail to other parties interested in the facility. If the noncompliance is not abated, corrected, or rectified within the time specified, remedial action may be taken. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121001.)

(a) A notice of hearing shall be sent to the permittee by the city, in writing, setting forth the time and place of the hearing, the ground or grounds upon which the remedial action is based, the pertinent code section or sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed at least 15 calendar days prior to the hearing date.

(b) The hearing shall be held before a city hearing officer following the procedures set forth in Article XI of this chapter. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121002.)

Whenever the city finds that suspension of a permit prior to a hearing for remedial action is necessary to protect the environment, public health or safety from imminent danger, the city may immediately suspend any permit pending the hearing. The city shall make a reasonable effort to immediately notify the permittee of such suspension by personally serving a written notice of the suspension on the permittee. Permittee shall have the opportunity for a preliminary hearing with regard to such prehearing suspension within three working days of receiving written notice of such suspension.

A request for a preliminary hearing shall be directed to the city manager. The city manager shall arrange a preliminary hearing within 10 days of receiving the request. Following the preliminary hearing, the permit may be reinstated by the city manager at his or her sole discretion pending the full remedial action hearing. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121003.)

If the city hearing officer finds that cause exists for remedial action, he or she shall impose one or more of the following:

(a) A warning;

(b) An order to correct the particular noncompliance specified in the notice issued pursuant to Section 8.35.530;

(c) A revocation of the permit for the facility and approval of a temporary permit;

(d) Suspension of the permit for the facility for a specified period not to exceed six months;

(e) Modification or addition of conditions to the permit;

(f) Revocation of the permit with no reapplication permitted for a specified period, not to exceed five years.

In a remedial action hearing under this article, the city shall have the burden of proof to establish good cause for the remedial action by a preponderance of the evidence.

If the grounds for remedial action are based on Section 8.35.010, and if such grounds are limited to one facility, the remedial action taken shall not be limited to that facility, but may apply to all facilities in which the responsible party has a significant interest.

The city hearing officer shall award all costs of the hearing and reasonable attorneys’ fees to the city whenever the city prevails in a remedial action hearing under this article. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121004.)

Within 10 working days of the hearing, the city hearing officer shall render a written opinion, stating the findings upon which the decision is based and the action taken, if any. The decision of the city hearing officer shall be the final administrative determination and is subject to judicial review. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121005.)

The suspension, revocation or expiration of a permit issued under this chapter shall not prevent any proceedings to investigate such permit, any remedial action against or any proceeding against such permittee. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121006.)

In the event that a permit issued under the provisions of this chapter is suspended or revoked, the permittee shall forward it to the issuing officer not later than the end of the third business day after notification of such suspension or revocation. The permittee shall immediately cease the handling, use, or storage of hazardous materials at the unpermitted site. (Ord. 1946 § 6, 11-27-90. 1990 Code § 3-121007.)