Los Gatos Municipal Code Div. 7 Responsibility

(a) Liquids and solids at STP. As soon as any person in charge of a storage facility or responsible for emergency response for a facility has knowledge of any confirmed or unconfirmed unauthorized discharge of a hazardous material which is liquid or solid at STP, such person shall take all necessary steps to ensure the discovery and containment and clean up of such discharge and shall notify the Enforcing Officer of the occurrence as required by this subsection.

(1) Confirmed unauthorized discharge.

a. Recordable unauthorized discharge. Any recordable unauthorized discharge shall be contained and safely disposed of in an appropriate manner by permittee and such occurrence and the response thereto shall be recorded in the permittee's monitoring records. A recordable unauthorized discharge in any unauthorized discharge of a hazardous material which meets all of the following criteria:

1. The discharge is from a primary containment to a secondary containment or to a rigid aboveground surface coverage capable of containing the discharge until cleanup of the hazardous material is completed; and

2. The permittee is able to adequately clean up the discharge before it escapes from such secondary containment or such aboveground surface, but if the cleanup requires more than eight (8) hours, it becomes a reportable discharge in accordance with subsection (a)(1)b. of this section; and

3. There is no increase in the hazard of fire or explosion, nor is there any production of a flammable or poisonous gas, nor is there any deterioration of such secondary containment or such rigid aboveground surface.

4. An otherwise recordable unauthorized discharge does not need to be recorded if the discharge is not the result of the deterioration or failure of the primary container and the quantity discharged is less than one (1) ounce by weight, and can be cleaned up within fifteen (15) minutes.

b. Reportable unauthorized discharge. Any unauthorized discharge which is not determined to be recordable under subsection (a)(1)a. of this section, must be reported to the Enforcing Officer immediately. The reporting party shall provide information to the Enforcing Officer relating to the ability of permittee to contain and dispose of the hazardous material, the estimated time it will take to complete containment and disposal, and the degree of hazard created. The Enforcing Officer may verify that the hazardous material is being contained and appropriately disposed of. The Enforcing Officer, at any time upon a determination that permittee is not adequately containing and disposing of such hazardous material, shall have the power and authority to undertake and direct an emergency response in order to protect the public health and/or safety.

(2) Unconfirmed unauthorized discharge.

a. Indication of loss in inventory records. Whenever a material balance or other inventory record, employed as a monitoring technique under the HMMP, indicates a loss of hazardous material, and no unauthorized discharge has been confirmed by other means, permittee shall have five (5) working days to determine whether or not there has been an unauthorized discharge. If before the end of such period it is determined that there has been no unauthorized discharge, an entry explaining the occurrence shall be made in permittee's monitoring records. Where permittee has not been able, within such period, to determine that there has been no unauthorized discharge, an unauthorized discharge is deemed confirmed and permittee shall proceed in accordance with subsection (a)(1)b. of this section.

b. Test results. Whenever any test results suggest a possible unauthorized discharge, and no unauthorized discharge has been confirmed by other means, the permittee shall have five (5) working days to retest. If second tests results obtained within that period establish that there has been no unauthorized discharge, the results of both tests shall be recorded in permittee's monitoring records. If it has not been established within such period that there has been no unauthorized discharge, an unauthorized discharge is deemed confirmed and permittee shall proceed in accordance with subsection (a)(1)b. of this section.

(b) Gases at STP. Any person in charge of a storage facility or responsible for emergency response for a storage facility, who has knowledge of any unauthorized discharge of a hazardous material which is a gas at STP, must immediately report such discharge to the Enforcing Officer if such discharge presents a threat of imminent danger to public health and safety.

(c) Office of emergency services. The Enforcing Officer shall submit a written report to the Office of Emergency Services within ten (10) working days from the date that the Enforcing Officer is notified of an unauthorized discharge from an underground storage tank.

(Code 1968, § 35.060.005)

(a) Not withstanding any other provision of this Code, the Enforcing Officer may either request that the Town Attorney immediately seek all available remedies and/or may order any person, including any past or present generator, past or present transporter, past or present owner or operator of a storage facility, or other responsible party who has contributed or who is contributing to the past or present handling, storage, treatment, transportation or disposal of any hazardous material which may present an imminent and substantial endangerment to the public health, welfare, environment or natural resources within the jurisdiction of the Town of Los Gatos, to take corrective action to fully and permanently abate any such endangerment and to remedy all present and foreseeable adverse effects arising out of such endangerment or any public nuisance. Upon issuance and service on the person(s) named, such orders shall be final and binding, unless stayed.

(b) Any such order issued by the Enforcing Officer pursuant to this section shall include a statement of the grounds upon which the order is issued and may include a time schedule for completion of specific actions.

(c) Any person named in such an order may, at any time after service of the order and after giving written notice to the Enforcing Officer and Town Attorney, request that the Hearing Officer appointed pursuant to section 13.20.890(b) stay the order. If the Hearing Officer determines that delay in corrective action until the next regularly scheduled meeting of the Town Council might pose an endangerment to the public health, welfare, environment or natural resources within the jurisdiction of the Town the stay shall be denied. The Enforcing Officer or any person named in such an order may request review of the Hearing Officer's granting or denial of stay at the next regularly scheduled meeting of the Town Council or at a meeting specially scheduled for this purpose. The burden shall be on the party requesting the stay to demonstrate to the Town Council that no imminent and substantial endangerment to the public health, welfare, environment or natural resources within the jurisdiction of the Town of Los Gatos will be presented or continued during the requested stay.

(d) Each owner, operator, or other responsible party shall take corrective action in response to an unauthorized discharge in compliance with this article and/or the orders of the Enforcing Officer. With respect to any unauthorized discharge from an underground storage tank such corrective action shall be in compliance with Health and Safety Code section 25299.37 and the regulations adopted pursuant to Health and Safety Code section 25299.77 except to the extent that the requirements of this article are more stringent.

(e) Without in any way conditioning or limiting the obligations imposed in subsection (a), the Enforcing Officer is authorized to:

(1) Issue orders to require the owner, operator or the responsible party respecting a storage facility to undertake corrective action with respect to any unauthorized discharge of hazardous materials if, in the judgment of the Enforcing Officer such corrective action is necessary to protect public health, safety, welfare or the environment. The owner, operator or other responsible party shall conduct any corrective action with respect to any final order issued pursuant to this section.

(2) Undertake corrective action with respect to any unauthorized discharge of hazardous materials into the environment from a storage facility if such action is necessary, in the judgment of the Enforcing Officer, to protect health, safety, welfare or the environment within the Town of Los Gatos.

(f) All corrective actions shall be consistent with any applicable waste discharge requirements or other order issued pursuant to Division 7 (commencing with Section 13000) of the Water Code, all applicable state policies for water quality control adopted pursuant to Article 3 (commencing with Section 13140) of Chapter 3 of Division 7 of the Water Code, and all applicable water quality control plans adopted pursuant to Section 13170 of the Water Code and Article 3 (commencing with Section 13240) of Chapter 4 of Division 7 of the Water code except as provided in subsection (d) and except to the extent that the Town has authority pursuant to law to impose additional or more stringent requirements than those imposed.

(g) Notwithstanding subsection (f), the Enforcing Officer may order additional or more stringent requirements for corrective action if:

(1) The Enforcing Officer determines that such requirements are appropriate to provide protection against or abatement of any present or future endangerment to the public health, safety, welfare, environment, natural resources or approved land uses within the town of Los Gatos; and

(2) The Town has legal authority to impose additional or more stringent provisions.

(h) Any order issued pursuant to this section shall become final and binding on any named person ten (10) days after service unless the person files a written request for review of the order which succinctly states the provisions of the order objected to and the basis for each such objection.

(i) All responsible parties shall be jointly and severally liable to reimburse the Town for all costs incurred in remedying the effects of public nuisances or unauthorized discharges, including enforcement costs, and the costs of fighting fires to the extent allowed by law. This responsibility is not conditioned upon willfulness or negligence of the responsible party in causing or allowing such public nuisance or unauthorized discharge. Any responsible party who undertakes action to remedy the effects of public nuisance or unauthorized discharge(s) shall not be barred by this article from seeking to recover costs and expenditures from other responsible parties except as provided by section 13.20.565.

(Code 1968, § 35.060.010; Ord. No. 1869, § I, 10-7-91; Ord. No. 1889, § II, 2-18-92; Ord. No. 1891, § XIX, 3-2-92)

(a) Civil action. At any time after corrective action costs have been incurred by the Town, the Town Attorney may commence a civil action in the name of the people to recover all such costs from any owner, operator, or other responsible party, each of whom shall be liable to the Town for all such costs. Such an action may be joined with an action for any other relief or damages to which the Town, acting on its own behalf or as parens patriae may be entitled. In any civil action brought to recover such costs, civil penalties or injunctive relief for violation of any provision of this article in which the Town prevails, the Town shall recover reasonable expenses, including attorney's fees, incurred by the Town in the investigation and prosecution of the action.

(b) Declaratory judgment. In a civil action to recover corrective action costs, the court shall enter a declaratory judgment determining liability. This declaratory judgment will be binding on any subsequent action or actions to recover further corrective action costs. The Court shall retain jurisdiction over such matter until six (6) months after corrective action is complete. Upon motion by the Town, any corrective action costs incurred by the Town, shall be adjudged against the liable parties in a lump sum judgment.

(c) Standard of liability. The standard of liability in this section is strict liability.

(d) Limitation of action. An action authorized by subdivision (b) of this section must be brought no later than three (3) years after completion of all corrective actions.

(e) Applicability. Corrective action costs recoverable by the Town, shall include all costs, regardless of when incurred, so long as the corrective action to the release or threatened release of hazardous material from the facility, with respect to which those corrective action costs have been incurred, has not been wholly completed on or before the effective date of this chapter.

(f) Exclusion. Costs recoverable under this section with respect to an unauthorized discharge of a hazardous substance from an underground storage tank shall not include (i) oversight costs incurred by the Town other than or in excess of those allowable pursuant to Health and Safety Code section 25297.1(i)(3).

(Ord. No. 1891, § XX, 3-2-92; Ord. No. 1894, § V, 3-16-92)

The permittee shall indemnify, hold harmless and defend the Enforcing Officer, its officers, employees and agents, and the Town, its officers, employees and agents against any claim, cause of action, disability, loss, liability, damage, cost or expense, howsoever arising, which occurs by reason of an unauthorized discharge in connection with permittee's operations under this permit except as arises from the Enforcing Officer's sole willful act or sole active negligence.

(Code 1968, § 35.060.015)