Item 36 Staff Report Consider Introducing and Adopting Urgency Ordinance Amending Chapter 13 of the Los Gatos Town Code Regarding Hazardous Materials to Clarify and Correct Clerical ErrorsCOUNCIL AGENDA
DATE: 3/16/92
ITEM NO.
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
DATE: MARCH 11, 1992
TO: MAYOR AND TOWN COUNCIL
FROM: KATHERINE ANDERTON, TOWN ATTORNE
SUBJECT: CONSIDER INTRODUCING AND ADOPTING URGENCY ORDINANCE AMENDING
CHAPTER 13 OF THE LOS GATOS TOWN CODE REGARDING HAZARDOUS
MATERIALS TO CLARIFY AND CORRECT CLERICAL ERRORS
RECOMMENDATION:
1. Waive the reading of the attached urgency ordinance. (Unanimous vote required.)
2. Clerk to read title.
3. Move to introduce and adopt the urgency ordinance amendments.
BACKGROUND:
At its last meeting the Council adopted an urgency ordinance implementing and formalizing
amendments to the Town's hazardous materials ordinance with a particular focus on clean-up and
remediation requirements, authority, and procedures. The attached proposed amendments will clarify and
correct certain omissions and clerical errors.
PREPARED BY: KATHERINE ANDERTON, TOWN ATTORNEY
KA:LMB:smk
DISK009\A: \CNCLRPTS\AMEND 13.ORD
Attachments: 1. Revision to ordinance amending specified sections.
2. Ordinance for adoption.
Reviewed by: Manager
3/12/92 2:25 pm
File #
Clerk Finance Treasurer
COUNCIL ACTION/ACTION DIRECTED TO:
o
ORDINANCE
URGENCY ORDINANCE OF THE TOWN OF LOS GATOS
AMENDING CHAPTER 13 OF THE LOS GATOS TOWN CODE
REGARDING HAZARDOUS MATERIALS TO CLARIFY
AND CORRECT CLERICAL ERRORS
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES HEREBY
ORDAIN:
SECTION I
An urgent need for this ordinance exists in order to preserve the public health and
safety in that:
1. Substances hazardous to the public health and safety and to the environment
are stored prior to use or disposal in numerous underground locations in the Town.
2. Underground tanks used for the storage of hazardous substances and wastes
are potential sources of contamination of the ground and underlying aquifers, and may pose
other dangers to public health and the environment.
3. In several known cases, underground storage has resulted in undetected and
uncontrolled releases of hazardous substances into the ground. These releases have
contaminated public drinking water supplies and created a potential threat to the public
health and to the waters of the state.
4. The Town's location at the base of the foothills and the general composition
of soils in the area make soil and groundwater contamination particularly critical because
of the potential impact on the region's groundwater and water supply.
5. Currently available scientific analysis has identified significant risk resulting
from additional contaminants which must be regulated to maximize protection of public
health, safety and the environment.
1 ATTACHMENT 1
6. Clarification of enforcement procedures, standards, and the consequences of
violation of these standards and requirements is necessary to minimize potential harm from
unauthorized discharges into the environment.
7. Known unauthorized discharges on property in the Town of Los Gatos may
be more effectively and immediately addressed and the consequential impact on the
environment decreased by this enactment.
8. The Town Council adopted Urgency Ordinance 1891 on March 2, 1992.
These clarifications are necessary for its proper implementation.
SECTION II
Section 13.20.130 is amended to read as follows:
Sec. 13.20.130. Inspections by Town.
(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
2
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 request 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
3
'
at reasonable times.
SECTION III
Section 13.20.160 is amended to read as follows:
Sec. 13.20.160 Indemnification and contribution.
(a) A responsible party
fined in Section l
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 l3.20.0:t5 at:: ' "(ip% notified the Town
or other appropriate governmental 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 governmental 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.
SECTION IV
Section 13.20.155. is amended to read as follows:
Sec. 13.20.155. Penalties.
(a) Civil penalty.
(1) Any person who violates any requirement of this Article or any final
4
order (including any order issued under Sec. 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
5
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.
''1:eix°gent violation of any provision of this Article or any final order
or permit issued pursuant to this Article, may be a misdemeanor punishable by a fine
of not more than One Thousand Dollars ($1,000), 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.
SECTION V
Section 13.20.561 is added to read as follows:
Sec. 13.20.561. Recovery of costs.
(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 �r��:any Owner, Operat��r, or other Respnnsi�7�.F�:��y��h:��::�`��r
�iiittatillitiffifilialbwailivalkstAtiagli. 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
6
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 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 & Safety Code Section 25297.1(i)(3).
SECTION VI
This Ordinance takes effect immediately and shall be published once in the Los
Gatos Weekly -Times, a newspaper of general circulation, published in the Town of Los
Gatos within fifteen (15) days.
7
The foregoing ordinance was passed and adopted at a regular meeting of the Los
Gatos Town Council on the day of March, 1992, and adopted by the following vote
as an urgency ordinance of the Town of Los Gatos.
COUNCILMEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
ATTEST:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
CLERK OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
Atny009:AMEND13.Q12D
8
ORDINANCE
URGENCY ORDINANCE OF THE TOWN OF LOS GATOS
AMENDING CHAPTER 13 OF THE LOS GATOS TOWN CODE
REGARDING HAZARDOUS MATERIALS TO CLARIFY
AND CORRECT CLERICAL ERRORS
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES HEREBY
ORDAIN:
SECTION I
An urgent need for this ordinance exists in order to preserve the public health and
safety in that:
1. Substances hazardous to the public health and safety and to the environment
are stored prior to use or disposal in numerous underground locations in the Town.
2. Underground tanks used for the storage of hazardous substances and wastes
are potential sources of contamination of the ground and underlying aquifers, and may pose
other dangers to public health and the environment.
3. In several known cases, underground storage has resulted in undetected and
uncontrolled releases of hazardous substances into the ground. These releases have
contaminated public drinking water supplies and created a potential threat to the public
health and to the waters of the state.
4. The Town's location at the base of the foothills and the general composition
of soils in the area make soil and groundwater contamination particularly critical because
of the potential impact on the region's groundwater and water supply.
5. Currently available scientific analysis has identified significant risk resulting
from additional contaminants which must be regulated to maximize protection of public
health, safety and the environment.
1
ATTACHMENT. 2
6. Clarification of enforcement procedures, standards, and the consequences of
violation of these standards and requirements is necessary to minimize potential harm from
unauthorized discharges into the environment.
7. Known unauthorized discharges on property in the Town of Los Gatos may
be more effectively and immediately addressed and the consequential impact on the
environment decreased by this enactment.
8. The Town Council adopted Urgency Ordinance 1891 on March 2, 1992.
These clarifications are necessary for its proper implementation.
SECTION II
Section 13.20.130 is amended to read as follows:
Sec. 13.20.130. Inspections by Town.
(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
2
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
3
times.
SECTION III
Section 13.20.160 is amended to read as follows:
Sec. 13.20.160 Indemnification and contribution.
(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 13.20.015 (w) (2) notified the Town
or other appropriate governmental 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 governmental 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.
SECTION IV
Section 13.20.155. is amended to read as follows:
Sec. 13.20.155. Penalties.
(a) Civil penalty.
(1) Any person who violates any requirement of this Article or any final
4
order (including any order issued under Sec. 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
5
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), 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.
SECTION V
Section 13.20.561 is added to read as follows:
Sec. 13.20.561. Recovery of costs.
(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
6
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 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 & Safety Code Section 25297.1(i)(3).
SECTION VI
This Ordinance takes effect immediately and shall be published once in the Los
Gatos Weekly -Times, a newspaper of general circulation, published in the Town of Los
Gatos within fifteen (15) days.
7
The foregoing ordinance was passed and adopted at a regular meeting of the Los
Gatos Town Council on the day of March, 1992, and adopted by the following vote
as an urgency ordinance of the Town of Los Gatos.
COUNCILMEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
Al 1EST:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
CLERK OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
Atny009:AMEND13.ORD
8
PROOF OF PUBLICA )N
(2015.5 C.C.P.)
State of California
County of Santa Clara
I am a citizen of the United States and a
resident of the County aforesaid: I am
over the age of 18 years, and not party to
or interested in the above entitled
matter. I am the principal clerk of the
printer of the: Los Gatos Weekly -Times
245 Almendra Avenue, Los Gatos, CA,
P.O. Box 339, Los Gatos CA 95031, a
newspaper of general circulation,
printed every Wednesday in the City of
San Jose California, County of Santa
Clara, and which newspaper has been
adjudged a newspaper of general
circulation by the Superior Court of the
county of Santa Clara, State of California,
Case number 83631 dated May 27, 1952
that the notice of which the annexed is a
printed copy (set in type not smaller
than non-parell), has been published in
each regular and entire issue of said
newspaper and not in any supplement
thereof on the following dates, to wit:
all in the year of 19 9..Z
I certify (or declare) under penalty of
perjury that the foregoing is true and
correct.
Date at Los Gatos, California, this
..ng Stamp
PROOF OF PUBLICATION
ORDINANCE 1894
URGENCY ORDINANCE OFTHE TOWN
OF LOS GATOS
AMENDING CHAPTER 13OFTHE LOS
GATOS TOWN CODE
REGARDING HAZARDOUS MATERI-
ALS TO CLARIFY
AND CORRECT CLERICAL ERRORS
THETOWN COUNCIL OFTHETOWN OF
LOS GATOS DOES HEREBY ORDAIN:
SECTION I
An urgent need for this ordinance
exists in orderto preserve the public
health and safety in that
1.Substances hazardous to the pub-
lic health and safety and to the envi-
ronment are stored prior to use ordis-
posal in numerous underground loca-
tions in the Town_
2.Underground tanks used for the
storage of hazardous substances and
wastes are potential sources of con-
tamination of the ground and under-
lying aquifers, and may pose other
dangers to public health and the envi-
ronment.
3.In several known cases, under-
ground storage has resulted in unde-
tected and uncontrolled releases of
hazardous substances into the
ground. These releases have con-
taminated public drinking watersu p-
plies and created a potential threat
to the public health and to the waters
of the state.
4.1heTown's location at the base of
the foothills and the general compo-
‘V 1;72
sition of soils in the area make soil ated equipment,and contents; shall
and groundwater contamination par- conduct monitoring or testing; and
ticuladycritical because ofthepoten• shall provide access to and allow
tial impact on the region's ground- copying
pysa dailrecodssatlaingtOSuCh
water and water supplY-
reasonable
5.Currentiy. available scientific anal- times.
ysis has identified significant risk SECTION 111
resulting from additional contami- Section 13.20.160 is amended to
nants which must be regulated to read as follows:
maximize protection of public health, Sec. 13.20.160 Indemnification
safety and the environment and contribution. as defined in
6.Clarification of enforcement pro- (a)A responsible party
cedures, standards, and the conse- Section 13.20.015 (w) (2) may have
quences of violation of these stan- a right
to o indemnification
om another br con-
dards and requirements is necessary
to minimize potential harm from party only upon proof by a prepon-
unauthorized discharges into the derance of the evidence that either:
environment. (1)SuCh responsible party as defined
uthorizeddischarges on in 13.20.015 (w) (2) notified the
ro ovem-
g
propertyintheTownoflAsGatosmay Town or other apDHate P
'. be more effectively and immediately mental agency of the existence and ney may commence a civil action in
addressed and the consequential location of the underground storage the name of the people to recover all
impact on the environment tank on or before the discontinuance or such
costtsfroma Own r,Oper tor,
decreased by this enactment. of its use; or
h of
8.TheTown Council adopted Urgen- (2)The responsible party against whom shall be liable to the Town for
cy Ordinance 1891 on March 2, whom indemnification and contribu- all such costs. Such an action may be
1992. These clarifications are nec- lion is asserted knew of the existence joined with an action for any other
essary for its proper implementation. and the location of the underground relief or damages to which the Town,
SECTION II
Section 13.20.130 is amended to discharge
therefrom,
fr the undergroundfailed to
read as follows:
Sec. 13.20.130. Inspections by storage tank and notify the Town or
Town.
(a)The Enforcing Officer may conduct
inspections, at its discretion, forthe
purpose of ascertaining compliance
with this Article and causing to be cor-
rected any condition which would
constitute any violation of this Article.
In addition to any other authority pro-
vided by law, the Enforcing Officer in
order to develop or assist in the devel-
opment of any regulation, to conduct
any study, to take any corrective
action, to assess compliance with, or
to enforce the provisions of
this Art
imprisonment for not more than six
(6) months, or both for each violation.
Each calendar day during which a vio-
lation occurs or continues shall con-
stitute a separate violation.
(c)Maximum penalty.
If the maximum amount of any civil or
criminal penalty imposed by this Arti-
cle 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.
SECTION V
Section 13.20.561 is added to read
as follows:
Sec.1320.561. Recovery of costa.
(a)CMlaction. At any time aftercor-
rective action costs have been
incurred by the Town, the Town Attor-
tankandofthe unauthorized acting on its own behalf or asparens
other appropriate govemmental
agency, or (ii) commence corrective
actions.
(b)Nothing in this section in any way
limits condition or affects the liabili-
ty of any responsible party tote Town
for correction action costs or for any
other legal or equitable remedy.
SECTION IV
Section 13.20.155. is amended to
read as follows:
Sec. 13.20.155. Ponaltles
(a)Civil penalty. aCtionstorecoverfurtherconective
Any person who violates any action costs. The Court shall retain
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 Arti-
cle in which the Town prevails, the
Town shall recover reasonable expens-
es, including attomey's fees, incurred
by the Town in the investigation and
prosecution of the action.
(b)Declaratoryludgmerrt. In a civil
action to recover corrective action
costs, the court shall enter declara-
tory judgment determining liability.
This declaratory judgment will be bind-
ing on any subsequent action or
t > )
cle, shall have access to and may
requirement ofthis Article orany final jurisdiction over such matter until sec
inspect at all reasonable times all order (including any order issued months after corrective action iscom
documentsrelatingtoastoragefacil- under Sec. 13.20.560 which has not plete. Upon motion by the Town, any
ity, its associated equipment and been stayed), orpennit,issued pur- corrective action costs incurred bythe
contents, and may conduct monitor- suant to this Article is liable for a civil Town, shall be adjudged against the
ingortesting. In addition to any other penalty of not more than Ten Thou- liable parties in a lump sum judgment
activities authorized by law, the sand Dollars ($10,000) for each stor- .(c)Standardofllability.The stan-
Enforcing Officer may exercise any of age facility for each day of violation. dard of liability in this section is strict
the following; (2)The Town Attomey may bring an liability.
(1)R1ght of entry. Wheneverneces- action in the name of the people in (d)Llmitation of action. An action
sary for the purpose of investigating Superior Court to impose such civil authorized by subdivision (b) of this
or enforcing the provisions ofthis ARr- penalty. Any such action may be section must be brought nolaterthan
cle- orwheneveranvEnforcinaOffi- ioined with an action for any other three (3) years aftercompletion of all
ORDINANCE 1894
URGENCY ORDINANCE OF THE TOWN OF LOS GATOS
AMENDING CHAPTER 13 OF THE LOS GATOS TOWN CODE
REGARDING HAZARDOUS MATERIALS TO CLARIFY
AND CORRECT CLERICAL ERRORS
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES HEREBY
ORDAIN:
SECTION I
An urgent need for this ordinance exists in order to preserve the public health and
safety in that:
1. Substances hazardous to the public health and safety and to the environment
are stored prior to use or disposal in numerous underground locations in the Town.
2. Underground tanks used for the storage of hazardous substances and wastes
are potential sources of contamination of the ground and underlying aquifers, and may pose
other dangers to public health and the environment.
3. In several known cases, underground storage has resulted in undetected and
uncontrolled releases of hazardous substances into the ground. These releases have
contaminated public drinking water supplies and created a potential threat to the public
health and to the waters of the state.
4. The Town's location at the base of the foothills and the general composition
of soils in the area make soil and groundwater contamination particularly critical because
of the potential impact on the region's groundwater and water supply.
5. Currently available scientific analysis has identified significant risk resulting
from additional contaminants which must be regulated to maximize protection of public
health, safety and the environment.
1
6. Clarification of enforcement procedures, standards, and the consequences of
violation of these standards and requirements is necessary to minimize potential harm from
unauthorized discharges into the environment.
7. Known unauthorized discharges on property in the Town of Los Gatos may
be more effectively and immediately addressed and the consequential impact on the
environment decreased by this enactment.
8. The Town Council adopted Urgency Ordinance 1891 on March 2, 1992.
These clarifications are necessary for its proper implementation.
SECTION II
Section 13.20.130 is amended to read as follows:
Sec. 13.20.130. Inspections by Town.
(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
2
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
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times.
SECTION III
Section 13.20.160 is amended to read as follows:
Sec. 13.20.160 Indemnification and contribution.
(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 13.20.015 (w) (2) notified the Town
or other appropriate governmental 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 governmental 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.
SECTION IV
Section 13.20.155. is amended to read as follows:
Sec. 13.20.155. Penalties.
(a) Civil penalty.
(1) Any person who violates any requirement of this Article or any final
4
order (including any order issued under Sec. 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
5
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), 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.
SECTION V
Section 13.20.561 is added to read as follows:
Sec. 13.20.561. Recovery of costs.
(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
6
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 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 & Safety Code Section 25297.1(i)(3).
SECTION VI
This Ordinance takes effect immediately and shall be published once in the Los
Gatos Weekly -Times, a newspaper of general circulation, published in the Town of Los
Gatos within fifteen (15) days.
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The foregoing ordinance was passed and adopted at a regular meeting of the Los
Gatos Town Council on the 16th day of March, 1992, and adopted by the following vote
as an urgency ordinance of the Town of Los Gatos.
COUNCILMEMBERS:
AYES: Randy Attaway, Joanne Benjamin, Steven Blanton,
Brent N. Ventura, Mayor Eric D. Carlson
NAYS: None
ABSENT: None
ABSTAIN: None
SIGNED: /s/ Eric D. Carlson
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
A' l "[BST:
/s/ Marian V. Cosgrove
CLERK OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
Atny009:AMEND 13.ORD
8
March 16, 1992
Los Gatos, California
TREASURER'S REPORT/JANUARY 1992 (33.V)
Informational report submitted by the Treasurer to the Council for the month of January 31,
1992, received and filed.
FIREPLACES/WOOD BURNING STOVES (34.13)
Mayor Carlson stated that this was the time and place duly noted to consider the use of
fireplaces and wood burning stoves.
The following people from the audience spoke to this issue:
Mary Lou Flynn, asked questions of Council concerning this item.
Eric Morely, Legislative Advocate for Board of Realtors, stated that the Board approved the
proposed ordinance.
No one else from the audience addressed this issue.
Motion by Mrs. Benjamin, seconded by Mr. Attaway, that Council direct staff to draft a section
to the Zoning Ordinance making it an infraction to: use fireplaces and other wood burning
devices (Environmental Protection Agency - EPA Phase II certified devices excepted) when the
Bay Area Air Quality Management District issues the "Don't Light Tonight" warning and when
an alternate approved heat source is available; burn garbage, plastics, rubber, waste solvent,
paint, oil, painted or treated wood, particle board, plywood, salt -water driftwood, coal, glossy or
colored paper, and any other fuel which produces noxious, corrosive or toxic smoke and fumes;
sell, advertise, transfer, install or replace a wood burning appliance that does not meet minimum
EPA Phase II Certified Standards or equivalent. Request that realtors voluntarily provide a copy
of the "Woodburning Handbook" to clients that purchase within Town limits and provide 180 day
delay in implementing recommended actions to disseminate information and to allow vendors
to deplete existing non -conforming stock. Carried unanimously.
PROPERTY/LOST & UNCLAIMED/STOLEN OR EMBEZZLED (35.28)
Motion by Mrs. Benjamin, seconded by Mr. Attaway, that Council waive the reading of the draft
ordinance. Carried unanimously. The Town Clerk read the title of the draft ordinance.
Motion by Mrs. Benjamin, seconded by Mr. Ventura, that Council introduce Draft Ordinance
entitled, ORDINANCE OF THE TOWN OF LOS GATOS ADDING ARTICLE ii OF CHAPTER
21 OF THE TOWN CODE IEDISPOSAL
EMBEZZLED PROPERTY. UNCLAIMED
Carried
PROPERTY. AND UNCLAIMD STOLEN OR
unanimously.
HAZARDOUS MATERIALS/CHAPTER 13/URGENCY ORDINANCE 1894 (36.07)
Motion by Mr. Ventura, seconded by T Benjamin,
Clerk read Council
title of the draft ordinanof ce.
draft
ordinance. Carried unanimously.
Motion by Mr. Ventura, seconded by Mrs. Benjamin, that Council introduce and adopt
Ordinance 1894 entitled, URGENCY ORDINANCE OF THE TOWN OF LOS GATOS
AMENDING CHAPTER 13 OF THLOS
GOSOCACODE
REGRDING HADOUS
MATERIALS TO CLARIFY ANDCORRECT unanimously.
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TC: D3: MM031692