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Ordinance 2932CITY OF ALAMEDA ORDINANCE NO. 2932 New Series AMENDING THE ALAMEDA MUCIPAL CODE BY ADDING A NEW SECTION 24-9 (RELEASES OF HAZAROUS MATERILS - COST RECOVERY) TO CHAPTER XXIV (PUBLIC HEALTH), AUTHORIZING THE RECOVERY OF COSTS INCURD FOR THE ABATEMENT OF HAZAROUS MATERILS RELEASES BE IT ORDAIND by the Council of the City of Alameda that: Section 1 . The Alameda Municipal Code is hereby amended to add a new Section 24-9 (Releases of Hazardous Materials - Cost Recovery) to Chapter XXIV (Public Health) to read as follows: 24-RELEASES OF HAZAROUS MATERIALS - COST RECOVERY 24-1 PUROSE AN AUTHORITY This Section is enacted pursuant to the charter authority of the City as well as pursuant to Governent Code Sections 38773 et seq. The purose of this Section is to require persons who are responsible for hazardous materials releases in the City to reimburse the City for the cost of abatement of such releases. 24-2 DEFINITIONS The following definitions shall apply to the construction of this section except where the context clearly indicates another meaning was intended: (a) Abatement means any emergency response , non-emergency response enforcement or other effort to prevent , mitigate or remedy the actual or potential consequences of a hazardous materials release. (b) Cost of abatement means the direct and indirect cost actually incurred by the City for the abatement of a hazardous material release. Costs shall include, but not be limited to , labor costs of City personnel , including benefits and administrative overhead; any costs incurred for equipment , materials , and/or contract services; any costs incurred for supervision or verification of the abatement of a hazardous materials release pursuant to subsection 24-5(b) of this Code; any costs incured by the City regarding the processing and recording of a lien and providing notice to . a property owner as a par of its foreclosure action to enforce a lien as authorized by Governent Code Section 38773.1 (c)( 4); and any other cost incurred by the City in the enforcement of this Section. (c) Hazardous material" means any material that, because of its quantity, concentration, or its physical or chemical characteristics , poses a significant actual or potential hazard to human health or safety or to the environment if released onto public or private property or released into the environment. "Hazardous material" includes , but is not limited to , " hazardous waste" as that term is defined in subsection 30-2(b) of this Code , and any material which the Fire Department or its agent reasonably believes poses a significant actual or potential hazard to human health or safety or to the environment if released onto public or private property or released into the environment , whether or not that material is subsequently determined to be actually or potentially hazardous. (d) Hazardous materials release means: (1) the threatened or actual release , discharge , deposit, or abandonment of any hazardous material on public or private property in the City, (2) the threatened or actual release of hazardous material into the environment from public or private property in the City, and (3) the improper storage or improper use of any hazardous material in the City that threatens to or does release discharge, deposit , abandon any hazardous material on public or private property, or threatens to or does release any hazardous material into the environment. (e)Person has the meaning set forth in subsection 1-2 of this Code. (f) Responsible person means any or all of the persons listed in subsection 24-9.4 ofthis Code. 24-3 RELEASE OF HAZAROUS MATERILS DECLARD A NUISANCE (a) The City Council of the City of Alameda , acting under the authority granted by the City Charter and Governent Code Section 38771 , hereby declares that any hazardous materials release in the City of Alameda is a public nuisance subject to summar abatement and is also a violation of this Code. (b) The Fire Deparment is authorized to provide , or to contract for another to provide , for the abatement of any hazardous materials release in the City. 24-9.4 RESPONSIBLE PERSONS LIALE FOR COSTS Each of the following persons is jointly and severally liable to the City for cost of abatement of a hazardous materials release in the City: (a) Any person whose negligent or willful act or omission was a proximate cause of the hazardous materials release; (b) Any person who owned or had custody or control of the hazardous material at the time of the hazardous materials release without regard to fault or causation; (c) Any person who owned or had custody or control of the container that held the hazardous material at the time of, or immediately prior to , the hazardous materials release , without regard to fault or causation; (d) Any person who owned or was in possession of the property on which or from which the hazardous materials release occured, without regard to fault or causation; (e) Any person who , by contract or otherwise, arranged for the disposal treatment, or transport of the hazardous material , without regard to fault or causation, ifthe hazardous materials release occurred during disposal , treatment , or transport. (f) Any person who accepted hazardous materials for transport, withoutregard to fault or causation , if the hazardous materials release occurred during transport. 24-5 ABATEMENT BY ORDER OF FIR CHIEF (a) Study Order. In the event the Fire Chief or his or her designee reasonably determines that a hazardous materials release may have occured, he or she may order the responsible person to perform , at the cost of the responsible person , investigative studies to determne the existence , nature and extent of the hazardous materials release. If the responsible person fails to comply within the time specified in such an order, the Fire Chief or his or her designee may take any necessary corrective action at the responsible person s cost. (b) Clean-up Order. In the even that the Fire Chief or his or her designee reasonably determines that a hazardous materials release has occurred in the City, he or she may order the responsible person to accomplish, or cause to be accomplished, at theresponsible person s cost , the abatement of the hazardous materials release. If the responsible person fails to comply within the time specified in such an order, the Fire Chief or his or her designee may take any necessary corrective action, including but not limited to , abatement of the hazardous materials release by the City or its agents at the responsible person s cost. (c) Supervision. The Fire Chief or his or her designee may take such action is necessary to supervise and to verify the adequacy of any abatement pursuant to subsection 24-9.5(b) of this Code. 24-6 COST RECOVERY (a) A responsible person shall pay the City the costs of abatement and costs due under subsection 24-5 of this Code within thirty (30) days of the date of a bill issued for those costs. (b) If a responsible person fails to make payment to the City as required by subsection 24-6(a) of this Code, then the City may enforce that payment obligation against that responsible person in a debt action .or enforce the payment obligation as a lien or special assessment in the manner provided in subsection 13-9.4 of this Code and as required by Governent Code Section 38773.1 or Governent Code Section 38771.5 as the case may be. (c) In any action or proceeding to enforce the obligations of a responsible person under this Section 24-9 in which the City elects , at the initiation of that action or proceeding, to seek recovery of its own attorneys ' fees , the prevailng party shall beawarded its attorneys ' fees actually and reasonably incurred in the prosecution or defense of the action or proceeding. (d) 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 hazardous materials release with respect to his , her or its property, the cour may order that person to pay treble the costs of abatement. 24-7 REMEDIES CUMATIVE The authority and remedies established by this Section 24-9 are in addition to any other remedy and authority established by any. federal , state , or local law and resort to any lawful remedy shall not constitute an election that waives the right to pursue any other remedy permitted by law 24-8 ABATEMENT IS DISCRETIONARY Nothing in this Section 24-9 shall create a right in any person to compel , or a duty , the City to abate any hazardous materials release. Enforcement of this Section 24- by the City constitutes discretionary action within the meaning of Governent Code Section 820. Section 2 . If any section, subsection, sentence , clause or phrase of this ordinance , for any reason , held to be invalid or unconstitutional , such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council of the City of Alameda hereby declares that it would have passed this ordinance , and each section , subsection, sentence , clause , or phrase hereof, irrespective of the fact that any one or more sections , subsections , sentences , clauses or phrases hereof be declared invalid or unconstitutional. Section 3 . This ordinance shall be in full force and effect from and after the expiration of thirty (30) days from the date of its final passage as provided in Section 3- 12 ofthe Charer offue Ci ;Yeda. resIding Attest: Lara Weisiger , City City of Alameda , the undersigned , hereby certify that the foregoing Ordinance was duly and regularly adopted and passed by the Council of the City of Alameda in a regular meeting assembled on the day of September , 2004 by the following vote to wit: AYES:Councilmembers Daysog, Gilmore , Kerr, Matarrese and Mayor Johnson - 5. NOES:None. ABSENT:None. ABSTENTIONS:None. IN WITNESS , WHEREOF , I have hereunto set my hand and affxed the official seal of said City this day of September, 2004. Weisiger, City Clerk City of Alameda