Los Gatos Municipal Code Div. 2 Administration and Enforcement

(a) Trade secrets, as used in this article, include, but are not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which is known only to certain individuals within a commercial concern who are using it to fabricate, produce, or compound an article of trade or a service having commercial value, and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it.

(b) The Town may disclose trade secrets only as authorized by Health and Safety Code section 25290.

(c) Any record, report, document or information designated confidential shall be treated as such by the Town, and shall be used only for the purpose of this article and shall not be disseminated to the public unless the Enforcing Officer determines that insufficient information has been submitted to support the designation as confidential.

(d) Any information not treated as a trade secret shall be available to the public unless nondisclosure is required by any other provision of law.

(e) The Town Council may disclose trade secrets received by the Enforcing Officer to authorized agents of the Town Council or other governmental agencies only in connection with the Town Council's responsibilities pursuant to this article. The Town Council shall establish procedures to ensure that these trade secrets are utilized only in connection with these responsibilities and are not otherwise disseminated without the consent of the person who provided the information to the Enforcing Officer.

(Ord. No. 1891, § VII, 3-2-92)

(a) The Enforcing Officer may conduct inspections, at its discretion, for the purpose of ascertaining compliance with this article and causing to be corrected any condition which would constitute any violation of this article. In addition to any other authority provided by law, the Enforcing Officer in order to develop or assist in the development of any regulation, to conduct any study, to take any corrective action, to assess compliance with, or to enforce the provisions of this article, shall have access to and may inspect at all reasonable times all documents relating to a storage facility, its associated equipment and contents, and may conduct monitoring or testing. In addition to any other activities authorized by law, the Enforcing Officer may exercise any of the following:

(1) Right of entry. Whenever necessary for the purpose of investigating or enforcing the provisions of this article, or whenever any Enforcing Officer has reasonable cause to believe that there exists in any structure or upon any premises, any condition which constitutes a violation of this article, such officers may enter such structure or premises at all reasonable times to inspect the same, or to perform any duty imposed upon any of the respective officers by law; provided that if such structure or premises be occupied, the officer shall first present proper credentials and request entry, and further provided, that if such structure or premises be occupied, the officer shall first make a reasonable attempt to contact a responsible person from such firm or corporation and request entry, except in emergency circumstances. If such entry is refused, the officer seeking entry shall have recourse to every remedy provided by law to secure entry.

(2) Inspections by Enforcing Officer. All inspections specified herein shall be at the discretion of the Enforcing Officer and nothing in this article shall be construed as requiring the Enforcing Officer to conduct any such inspection nor shall any actual inspection made imply a duty to conduct any other inspection. Furthermore, nothing in the article shall be construed to hold the Enforcing Officer or any officer, employee or representative of the Enforcing Officer responsible for any damage to persons or property by reason of making an inadequate or negligent inspection or by reason of any failure to make an inspection or reinspection.

(3) Obtaining information. Upon order by the Enforcing Officer, a responsible party shall furnish information relating to its tanks, associated equipment, and contents; shall conduct monitoring or testing; and shall provide access to and allow copying of all records relating to such tanks and permits at reasonable times.

(Code 1968, § 35.070.005; Ord. No. 1891, § VIII, 3-2-92; Ord. No. 1894, § II, 3-16-92)

The permittee shall conduct regular inspections of its own facilities to assure compliance with this article and shall maintain logs or file reports in accordance with its hazardous materials management plan. The inspector conducting such inspections shall be qualified to conduct such inspections.

(Code 1968, § 35.070.010)

In addition to the inspections specified above, the Enforcing Officer may require the periodic employment of special inspectors to conduct an audit or assessment of permittee's facility to make a hazardous material safety evaluation and to determine compliance with the provisions of this article.

(1) The special inspector shall be a qualified person or firm who shall demonstrate expertise to the satisfaction of the Enforcing Officer.

(2) The special inspection report shall include an evaluation of the facilities and recommendations consistent with the provisions of this article where appropriate. A copy of the report shall be filed with the Enforcing Officer at the same time that it is submitted to the permittee.

(3) The permittee shall, within thirty (30) days of such report, file with the Enforcing Officer a plan to implement all recommendations, or shall demonstrate to the satisfaction of the Enforcing Officer why such recommendations shall not be implemented.

(Code 1968, § 35.070.015)

An inspection by an employee of any other public agency may be deemed by the Enforcing Officer as a substitute for any preceding requirement of this division.

(Code 1968, § 35.070.020)

All records required by this article shall be maintained by the permittee for a period of not less than three (3) years. Such records shall be made available to the Enforcing Officer during normal working hours and upon reasonable notice.

(Code 1968, § 35.070.025)

(a) Civil penalty.

(1) Any person who violates any requirement of this article or any final order (including any order issued under section 13.20.560 which has not been stayed), or permit, issued pursuant to this article is liable for a civil penalty of not more than ten thousand dollars ($10,000) for each storage facility for each day of violation.

(2) The Town Attorney may bring an action in the name of the people in Superior Court to impose such civil penalty. Any such action may be joined with an action for any other available remedy under this code including injunctive relief.

(3) In determining the amount of any civil penalty under this section:

a. The court shall, at a minimum, impose a penalty amount which eliminates all economic benefit accruing to the violator by reason of noncompliance and which compensates the public for the harm and damage done to the environment as a result of the violator's noncompliance. Impossibility of substantial compliance, or the impossibility of quantifying the harm to the environment, does not bar the assessment of such a penalty. The court shall enhance this base line amount to maximize the prophylactic effect on both the violator and the regulated community as a whole. In addition, in determining the penalty; the court shall consider the violator's degree of recalcitrance, or absence of good faith cooperation with the Town and any other appropriate governmental entities, the violator's defiance or indifference to requirements of the law, and any unusual or extraordinary burdens imposed on the public welfare or the public fisc as a result of the violation.

b. The court may mitigate the total amount calculated under subsection (1) to reflect any part of the noncompliance caused by the existence of extenuating circumstances that were wholly and entirely beyond the violator's control.

(b) Criminal penalty. Wilful or negligent violation of any provision of this article or any final order or permit issued pursuant to this article, shall be a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000.00), or imprisonment for not more than six (6) months, or both for each violation. Each calendar day during which a violation occurs or continues shall constitute a separate violation.

(c) Maximum penalty. If the maximum amount of any civil or criminal penalty imposed by this article is determined to be in excess of the maximum amount authorized by law, the amount shall be reduced to the maximum amount permitted by law.

(Code 1968, § 35.120.005; Ord. No. 1891, § IX, 3-2-92; Ord. No. 1894, § IV, 3-16-92)

(a) A responsible party as defined in section 13.20.015 (w)(2) may have a right to indemnification by or contribution from another responsible party only upon proof by a preponderance of the evidence that either:

(1) Such responsible party as defined in section 13.20.015 (w)(2) notified the Town or other appropriate government agency of the existence and location of the underground storage tank on or before the discontinuance of its use; or

(2) The responsible party against whom indemnification and contribution is asserted knew of the existence and the location of the underground storage tank and of the unauthorized discharge therefrom, and failed to either (i) remove the underground storage tank and notify the Town or other appropriate government agency, or (ii) commence corrective actions.

(b) Nothing in this section in any way limits condition or affects the liability of any responsible party to the Town for correction action costs or for any other legal or equitable remedy.

(Code 1968, § 35.120.010; Ord. No. 1891, § X, 3-2-92; Ord. No. 1894, § III, 3-16-92)

A civil action may be instituted against any employer by any employee who has been discharged, demoted, suspended, or in any other manner discriminated against in terms of conditions of employment, or threatened with any such retaliation, because such employee has, in good faith, made any oral or written report or complaint related to the enforcement of this article to any company official, public official or union official, or has testified in any proceeding in any way related thereto. In addition to any actual damages which may be awarded, damages shall include costs and attorney's fees. The court may award punitive damages in a proper case.

(Code 1968, § 35.120.015)

(a) A violation of any provision of this article shall constitute a public nuisance.

(b) Any contaminated public property is hereby declared to be a public nuisance.

Property is contaminated for purposes of this ordinance if any of the following are present and may endanger the public health, safety, welfare, natural resources within the town, or the environment:

(1) Hazardous material; or

(2) Solid or hazardous waste as defined by the Federal Act; or

(3) Hazardous waste, carcinogen, chemical known to cause reproductive toxicity, hazardous material, toxic substance or designated material as defined by California statute or regulation adopted pursuant thereto.

(Code 1968, § 35.120.020; Ord. No. 1883, § I, 1-6-92; Ord. No. 1891, § XI, 3-2-92)

(a) Any existing or threatened violation of this article or any permit requirement or any final order (including any order under section 13.20.560 which has not been stayed) may be enjoined and compliance may be directed by a temporary restraining order, preliminary or permanent injunction, or other order of the court in an action brought by the Town Attorney.

(b) In any civil action brought pursuant to this article in which a temporary restraining order, preliminary injunction, or permanent injunction is sought, the Town shall be entitled to injunctive relief without allegation or proof that irreparable damage will occur if the injunctive relief is not ordered or that the remedy at law is inadequate.

(Ord. No. 1891, § XII, 3-2-92)

Remedies under this article are in addition to and do not supersede or limit any and all other remedies, civil, criminal or administrative. Nothing in this article shall affect or modify in any way the obligations or liabilities of any person under any other provision of state, federal or local law, including common law, for damages, injury, loss, or for liability for nuisance abatement and nuisance abatement costs incurred by the Town which results from an unauthorized discharge of hazardous material into the environment.

(Code 1968, § 35.120.025; Ord. No. 1889, § IV, 2-18-92; Ord. No. 1891, § XIII, 3-2-92)