Sec. 29-26. - Liabilities and defenses.
Sec. 29-28. - Local agency assistance.
Sec. 29-30. - Statutory severability.
Sec. 29-32. - State-mandated provisions.
Sec. 29-26. - Liabilities and defenses.
(a)
This section shall be construed consistent with CERCLA, 42 USC Section 9601, et seq., as amended and California Health and Safety Code, Division 20, Chapter 6.7 and Chapter 6.75 as amended.
(b)
The following described persons are considered "responsible persons" for the purposes of this chapter and shall be jointly and severally liable to the county for all costs incurred by it in taking any investigative, recovery or regulatory action or emergency response or action, in connection with an actual or threatened release of any hazardous material:
(1)
Any person whose negligent or wilful act or omission proximately caused any actual or threatened disposal or release of a hazardous material;
(2)
Any person who owned or had dominion or control of any hazardous material at the time of such actual or threatened disposal or release without regard to fault or proximate cause;
(3)
Any person who owned or had dominion or control of any container which held any hazardous material at the time of, or immediately prior to any actual or threatened disposal or release without regard to fault or proximate cause;
(4)
Any "owner" as defined by this chapter, including, but not limited to, any owner of land on which a release of hazardous materials actually occurs or threatens to occur, any owner of a facility at which an actual or threatened release occurs, any owner of hazardous materials which are involved in an actual or threatened release;
(5)
Any "operator" as defined by this chapter, including, but not limited to, any person who operates a hazardous materials facility involved in an actual or threatened release of hazardous material, or any person with control over the operation or management of a hazardous materials facility involved in an actual or threatened release;
(6)
Any person who by contract arranged for the disposal of hazardous material at a site involved in an actual or threatened release of a hazardous material which was the subject of the contract;
(7)
Any person who accepts or accepted any hazardous material for transport to a disposal or treatment site selected by that person;
(8)
Any hazardous waste generator;
(9)
Any person who is a tenant, lessee, or sublessee of land on which an actual or threatened release of hazardous materials occurs where the person possesses dominion or control over the land.
(c)
Responsibility is strict and is not conditioned upon evidence of wilfulness, negligence, fault, or proximate cause in causing or allowing such actual or threatened release of hazardous substances except as expressly provided in this chapter.
(d)
"Costs" under this article include, but are not limited to, the reasonable costs of equipment, personnel, laboratory fees, administrative costs, court costs, witness fees, and attorneys' fees.
(e)
The following constitute defenses to liability based on this section:
(1)
Defenses available to a "responsible party" pursuant to CERCLA, 42 USC Section 9601, et seq., as amended;
(2)
Defendant proves, by a preponderance of the evidence, the actual or threatened release was proximately caused by an act of God as defined under state or federal laws or regulations and that the defendant took reasonable precautions to avoid an actual or threatened release;
(3)
Defendant proves, by a preponderance of the evidence, the actual or threatened release was exclusively caused by an act of war;
(4)
Defendant is named as a responsible party solely by virtue of his or her ownership of land where an actual or threatened release occurred and defendant proves all of the following, by a preponderance of the evidence:
(i)
Defendant had no reason to know or suspect that an actual or threatened release of hazardous materials occurred or was reasonably likely to occur on the land,
(ii)
If the actual or threatened release occurred prior to defendant's purchase, defendant must prove, by a preponderance of the evidence, that defendant undertook adequate inquiry into the uses of the land consistent with good commercial practice, good customary practice, and which was reasonable under the circumstances, in order to ascertain whether or not hazardous materials were present on the land. In determining whether or not defendant undertook adequate inquiry, the following shall be taken into account:
(A)
The special knowledge or experience of defendant,
(B)
The relationship of any purchase price to the value of comparable uncontaminated real estate,
(C)
Commonly known or reasonable ascertainable information about the land,
(D)
Obviousness of presence or likely presence of hazardous materials,
(E)
Defendant's ability to detect the presence or likely presence of hazardous material by reasonable inquiry or inspection;
(5)
Where the hazardous material was placed on defendant's land subsequent to defendant's purchase of the land, and the defendant proves the following:
(i)
Neither the landowner nor the lessees of the landowner had knowledge of the placement nor did the landowner nor the lessee of the landowner consent to the placement,
(ii)
The landowner did not acquiesce in the presence of hazardous materials on the land subsequent to placement. In determining whether or not defendant acquiesced in the presence of a hazardous material, the following shall be taken into account:
(A)
The landowner made reasonable inspections of the land,
(B)
The landowner had no reason to suspect a hazardous material was present,
(C)
The landowner did not know nor have reason to know a hazardous material was present,
(D)
The landowner took reasonable steps to cause the removal of the hazardous materials upon discovery.
(f)
If one (1) or more responsible persons asserts that responsibility for an actual or threatened release is capable of apportionment among them, the burden of proof as to the apportionment is upon each such responsible person. In order to show responsibility for an actual or threatened release is capable of apportionment, a responsible person must show that each responsible person to a divisible harm and that it is reasonable, under the circumstances, to apportion responsibility. Nothing in this section shall affect the imposition of joint and several liability.
(Ord. No. 5015 § 1, 1997.)
Except where the act constituting a violation of this chapter constitutes a violation of any state or federal law which is designed to achieve the same purposes as this chapter, or where a penalty under this chapter is otherwise prohibited by law, violations of this chapter shall be punishable as follows:
(a)
Any owner, operator or handler or handler of a hazardous materials facility subject to this chapter shall be liable for a civil penalty of not less than five hundred dollars ($500.00) or more than five thousand dollars ($5,000.00) per day for any of the following:
(1)
Operation without an appropriate permit.
(2)
Failure to monitor the hazardous materials facility as required by the permit.
(3)
Failure to report an actual or threatened release as required by Section 29-17
(4)
Failure to properly close an underground storage tank as required by Section 29-11
(b)
Any owner of a hazardous materials facility shall be liable for a civil penalty of not less than five hundred dollars ($500.00) or more than five thousand dollars ($5,000.00) per day for any of the following:
(1)
Failure to obtain a permit as specified by this chapter.
(2)
Failure to repair a hazardous materials facility in accordance with the provisions of this chapter.
(3)
Abandonment or improper closure of any hazardous materials facility subject to the provisions of this chapter.
(4)
Knowing failure to take reasonable and necessary steps to assure compliance with this chapter by the owner, operator or handler or handler of a hazardous materials facility.
(c)
Any person who falsifies any monitoring records required by this chapter, or knowingly fails to report an actual or threatened release shall, upon conviction, be punished by a fine of not less than five thousand dollars ($5,000.00) or more than ten thousand dollars ($10,000.00) or by imprisonment in the county jail for a period not to exceed one (1) year or by both that fine and imprisonment.
(d)
Any person or business who violates Section 29-17 of this chapter or Section 25507 of the Health and Safety Code shall, upon conviction, be punished by a fine of not more than twenty-five thousand dollars ($25,000.00) for each day of violation, or by imprisonment in the county jail for not more than one (1) year or by both the fine and imprisonment. If the conviction is for a violation committed after a first conviction under this section, the person or business shall be punished by a fine of not less than two thousand dollars ($2,000.00) or more than fifty thousand dollars ($50,000.00) per day of violation, or by imprisonment in the state prison for sixteen (16), twenty (20), or twenty-four (24) months or in the county jail for not more than one (1) year or by both the fine and imprisonment. Furthermore, if the violation results in, or significantly contributes to an emergency, including a fire to which a public agency is required to respond, the person or business shall also be assessed the full cost of the emergency response as well as the cost of cleaning up and disposing of the hazardous materials and any costs associated with collecting moneys owed under this section.
(e)
In determining both the civil and criminal penalties imposed pursuant to this section, the court shall consider all relevant circumstances including, but not limited to, the extent of harm or potential harm caused by the violation, the nature of the violation and the period of time over which it occurred, and the frequency of past violations and the regulatory action, if any, taken by the person who holds the permit.
(f)
Except where prohibited by law, penalties under this section are in addition to, and do not supersede or limit, any and all other legal remedies and penalties.
(g)
Persons providing information with respect to certain hazardous material law violations may be eligible for a reward under Sections 25517 of the Health and Safety Code.
(h)
Other penalties or remedies may apply under state law. This article is not intended to be all-encompassing.
(Ord. No. 5015 § 1, 1997.)
Sec. 29-28. - Local agency assistance.
The CUPA may request the assistance of other governmental agencies to remedy the effects of, and remove any hazardous material which has been released.
(Ord. No. 5015 § 1, 1997.)
The board of supervisors may adopt, by resolution, regulations implementing and enforcing this chapter.
(Ord. No. 5015 § 1, 1997.)
Sec. 29-30. - Statutory severability.
If any section, subsection, sentence, clause, or phrase of this chapter is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not effect the validity of the remaining portions of the chapter.
(Ord. No. 5015 § 1, 1997.)
It is the intent of this chapter to regulate the storage, handling, use and management of hazardous materials or substances unless specifically preempted by state or federal law. This chapter is not intended, and shall not be construed, to apply to any substance or activity which is preempted by federal or state law or to the extent that such application would unduly interfere with the achievement of federal or state regulatory activities. It is the intention of the board of supervisors that this chapter shall be interpreted to be compatible with federal and state enactments and in furtherance of the public purposes which those enactments express.
(Ord. No. 5015 § 1, 1997.)
Sec. 29-32. - State-mandated provisions.
Those provisions of this chapter which are mandated by state law may be subject to change without notice or action by the county. This chapter will be periodically updated to reflect such changes.
(Ord. No. 5015 § 1, 1997.)