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HomeMy WebLinkAbout09/19/1995, 4 - COST RECOVERY ORDINANCE MEETING DATE: Clty of San I13IS OBISPO 9/19/95 i COUNCIL AGENDA REPORT ITEM NUMBER: FROM: Robert F. Neumann, Fire Chief PREPARED BY: Viv R. Dilts, Administrative Assistant SUBJECT: Cost Recovery Ordinance CAO RECOXMIENDATION: Introduce ordinance to print creating a new Chapter 8.32 of Title 8 of the San Luis Obispo Municipal Code for the purpose of the recovery of costs related to hazardous waste or substance spills, releases and other incidents. DISCUSSION: The Fire Department responds to incidents relating to hazardous materials, which vary in size and complexity. For incidents of a significant nature, the City does not currently have adequate resources in terms of specially trained personnel or specialized equipment, to do anything more than isolate the area and request for outside specialists. The cost for handling such incidents could be extremely costly. This ordinance would allow the City to recover all costs, including City personnel costs, associated with response to, mitigation of, containment and disposal of hazardous materials resulting from spills, leaks orillegal disposal. Costs associated with unauthorized disposal or release of hazardous materials would be recovered from: 1) The person or person whose negligent or willful act or omission caused such disposal or release, 2) The person or persons who owned or had custody or control of the hazardous waste or substance at the time of such disposal or release and 3) The person or persons who owned or had custody or control of the container that held such hazardous waste or substance at the time of or immediately prior to such disposal or release. Recovery of costs where real property is the subject of enforcement would authorize the City to levy costs incurred as a lien against the real property and special assessment upon real property owned by the person liable. In addition all costs would be a personal obligation of the property owner, recoverable in a civil action. Where real property is not the subject of enforcement, costs could be recoverable in a civil action instituted by the City including any fees or penalties authorized by law. The ordinance outlines specific procedures concerning the levy, collection and enforcement of special assessments including appeal methods. It should also be noted that the City of San Luis Obispo Fre Department is a member of a county- wide Hazardous Materials Response Team. Cities on this team are working cooperatively together to establish similar policies, one being the recovery of costs. This ordinance, with slight modifications, has recently been adopted by the Cities of Pismo Beach and Grover Beach. FISCAL EWFACT: It is difficult to predict what the cost recovery would be until an actual hazardous materials incident occurs, however, significant cost recovery is possible. ATTACHMENTS: Proposed Ordinance ATTACHMENT #1 ORDINANCE NO. (1995 Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO CALIFORNIA, ADDING CHAPTER 8.32 TO TITLE 8 OF THE SAN LUIS OBISPO MUNICIPAL CODE PROVIDING FOR THE RECOVERY OF COSTS RELATED TO HAZARDOUS WASTE OR SUBSTANCE SPILLS, RELEASES AND OTHER INCIDENTS WHEREAS, the City of San Luis Obispo is required to respond to complaints of hazardous waste or substance spills, releases and other incidents; and WHEREAS, such spills, releases and other incidents are a possibility within the City limits owing to activities in the City relating to or using hazardous materials or waste products; and WHEREAS, such responses require the use of extra personnel, specialized equipment and other additional costs; and WHEREAS, Section 510 the California Health and Safety Code expressly allows a City to adopt an ordinance allowing the City to recover costs of any such response from private persons associated with activities resulting in hazardous waste or substance spills, releases or other incidents; and WHEREAS, Sections 3479 and 3494 of the California Civil Code provide that such spills, releases and other incidents which obstruct the free passage or use of any public street or highway create a public nuisance which may be abated by the City of San Luis Obispo; and WHEREAS, the provisions of Article 6 of Chapter 10 of Part 2 of Division 3 of the California Government Code (commencing with Section 38771) provide that a City Council may declare by ordinance what constitutes a public nuisance and provide for the summary abatement of such nuisance at the expense of the persons creating, causing, •4/-oZ committing or maintaining it, and by ordinance may take the expense of abatement a lien against property upon which it is maintained as well as a personal obligation against the property owner; NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA, AS FOLLOWS: SECTION 1. Chapter 8.32, Sections 8.32.010 through 8.32.080 shall be added to Title 8 of the San Luis Obispo Municipal Code to read as follows: CHAPTER 8.32 LIABILITY FOR COSTS OF RESPONSE TO HAZARDOUS WASTE OR SUBSTANCE SPILLS, RELEASES AND OTHER INCIDENTS SECTION 8.32.010. Purpose and Authority The purpose of this Chapter is to establish liability for reimbursement of the City's expenses incurred in connection with corrective action necessitated by violations of the hazardous waste and substance control laws. The authority for this Chapter includes the City Charter, the general police power; the provisions of Article 6 of Chapter 10 of Part 2 of the California Government Code (commencing with Section 38771); Sections 3479 and 3494 of the California Civil Code; Section 510 of the California Health and Safety Code, (hereinafter "Health and Safety Code"), and the provisions of Chapter 6.5 (commencing with Section 25100) of Division 20 of the.Health and Safety Code. SECTION 8.32.020. Definitions. For the purposes of this Chapter, unless the context otherwise requires: a) "City" means the City of San Luis Obispo. b) "Corrective action" includes, without limitation, any "remedial action" within the meaning of Section 25322 of the Health and Safety Code and any "removal" within the meaning of Section 25323 of the Health and Safety Code. Al-3 c) "Disposal" has the meaning assigned to that term by Section 25113 of the Health and Safety Code. d) "Hazardous waste or substance" means a waste or substance that consists of a material listed in either the List of Chemical Names or the List of Common Names appearing in Section 66680 of the Title 22 of the California Administrative Code, a waste or substance as defined in either Section 25280, Section 25316 or Section 25400 of the Health and Safety Code. e) "Hazardous waste and substance control laws" means Chapter 6.5 (commencing with Section 25100) or Chapter 6.7 (commencing with Section 25280) of Division 20 of the Health and Safety Code or any permit, rule, regulation, standard or requirement issued or promulgated pursuant to such chapters. f) "Release" has the meaning assigned to that term by Section 25320 and Section 25321 of the Health and Safety Code. g) "Unauthorized disposal or release" means any disposal of a hazardous waste or substance which is in violation of the provisions of Chapter 6.5 (commencing with Section 25100) of Division 20 of the Health and Safety Code, any "unauthorized release" within the meaning of Section 25280 of the Health and Safety Code, or any release of a hazardous waste or substance which is not "a release authorized or permitted within the meaning of Section 25326 of the Health and Safety Code. h) "Person" has the meaning assigned to that term by Section 25118 of the Health and Safety Code. SECTION 8.32.030. Liability for Unaurhorized Disoosa] or Release If the City takes any corrective action which, in the judgment of either the City Administrative Officer or his/her appointed officer, is reasonably necessary to remedy or y-� prevent an imminent substantial danger to the public health, domestic livestock, wildlife or the environment arising out of any unauthorized disposal or release of hazardous waste or substance, the following described persons shall be jointly and severally liable to the City for the cost incurred by it in taking any such corrective action: (a) The person or persons whose negligent or willful act or omission proximately caused such disposal or release; (b) The person or persons who owned or had custody or control of the hazardous waste or substance at the time of such disposal or release, without regard to fault or proximate cause; and (c) The person or persons who owned or had custody or control of the container which held such hazardous waste or substance at the time of or immediately prior to such disposal or release, without regard to fault or proximate cause. SECTION 8.32.040. Liability for Failure to Comply with Orders If the City Administrative Officer or his/her appointed officer issues a lawful order directing any person who has violated or is in violation of any provisions of the hazardous waste or substance control laws to take corrective action respecting such violation, and if such person does not take such corrective action on or before the date and time specified in the order, the City may take or contract for the taking of such corrective action. If such corrective action is taken by or contracted for by the City, the person to whom the order was directed shall be liable to the City for the cost incurred by it in taking or contracting for such corrective action. If such corrective action is taken by the person to whom the order is directed or by such person's agent, the person to whom the order is directed shall be liable to the City for the cost of supervising such corrective action or otherwise verifying compliance with the order. A4 SECTION 8.32.050. Computation of Costs, The costs referred to in Section 8.32.030 and Section 8.32.040 shall include, in addition to the City's direct out-of-pocket expenses, the cost of all City personnel engaged in such work computed in accordance with the City's standard accounting procedures for computing the hourly cost of services by such personnel and any other costs or fees set by resolution. SECTION 8.32.060. Recovery of Costs Where Real Proper y is the Subject of Enforcement All costs as computed by Section 8.32.050 shall constitute a lien against the real property and special assessment against the real property owned by a person liable under this Chapter if said property is the subject of the enforcement. Moreover, all such costs shall also be a personal obligation against the property owner, recoverable in a civil action as provided by Section 8.32.070. SECTION 8.32.070. Recovery of Costs Where Real Property is Not the Suhiect of Enforcement. Where real property is not the subject of the enforcement, the amount of such costs for which liability is imposed pursuant to this Chapter shall be recoverable in a civil action by the City and shall be in addition to any other fees or penalties authorized by law, provided that any sums actually received by the City in connection with such work pursuant to Chapter 6.8 (commencing with Section 25300) of Division 20 of the Health and Safety Code Shall be credited against any amount recoverable in such civil action. SECTION 8.32.080. Levy. Collection and Enforcemeof Special Assessment 2n Real Props y,,. Thefollowingprocedure shall apply concerning the levy, collection, and enforcement of a special assessment for the recovery of costs as provided by Section 8.32.060. a) On or before June 1st of each year, the Director of Finance or his/her appointed officer shall give notice to each real property owner to be levied by causing personal service to be made upon the owner, agent, or person in control of the subject real property, or by depositing such notice in the United States Mail, postage prepaid, addressed to the owner of the subject real property, at the address shown by the last equalized assessment roll. The notice shall bear the date of personal service or mailing and shall set forth the rights and procedures governing a request of hearing as provided for herein. b) Within ten (10) days of the date of the notice, the owner or any other person interested in the subject real property may request a hearing on the correct amount of the proposed assessment. Such request shall be in writing and shall state the objections, name and address of the person filing the request. The request shall be filed with the Department of Finance. c) If a hearing is requested, notice of the hearing shall be mailed, by registered mail, at least ten (10) days before the hearing to the party requesting the hearing. The hearing shall be conducted by the Director of Finance who shall not be limited by the technical rules of evidence and shall hear all facts and testimony he/she deems pertinent. The decision of the Director of Finance is a final order. d) Any interested party may appeal the decision of the Director of Finance by filing a written notice of appeal with the Director within five (5) days after his/her decision. Such appeal shall be heard by the City Council which may affirm, modify, or reverse the order or take other action it deems appropriate. The City Clerk shall give written notice of the time and place of the hearing to appellant, by registered mail, at least ten (10) days before the hearing. In conducting the hearing, the City Council shall not be limited by the technical rules of evidence. e) On or before July of each year, the City Administrative Officer or his/her appointed officer shall prepare a list of parcels of real property which are subject to such costs. On or before the tenth day of July of each year, the City Administrative Officer or his/her appointed officer shall transmit, upon resolution and approval by City Council, such list to the County Auditor and request the Auditor to enter the amounts of the respective assessments against the respective parcels of land as they appear on the current assessment roll. f) The assessment shall be included on the bills for taxes levied against respective lots and parcels of real property, and such assessment shall be listed separately on the tax bill. Thereafter, the amounts of such assessment shall be collected at the same time and in the same manner as County taxes are collected. g) San Luis Obispo County may deduct its reasonable costs incurred for its services in connection with such collection before remittal of the balance to the City Treasury. h) All laws applicable to the levy, collection, and enforcement of County taxes are applicable to such special assessment made pursuant to this Chapter. SECTION 2. Publication and Effective Date A summary of this ordinance, approved by the City Attorney, together with the votes for and against, shall be published once, at least five days prior to its final passage, in the Telegram-Tribune, a newspaper published and circulated in this City. This ordinance shall go into effect at the expiration of 30 days after its final passage. INTRODUCED AND PASSED TO PRINT by the Council of the City of San Luis Obispo at its meeting held on this day of , 1995, on motion of , seconded by , and on the following roll call vote: Ayes: Noes: Absent: Mayor Allen Settle ATTEST: City Clerk APPROVED AS TO FORM: 1 rn Jeforgensen �-9