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Ord 1894 - Urgency Ordinance Chapter 13 Regarding Hazardous Materials to Correct Clerical ErrorsORDINANCE 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 Pa 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 91 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 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: MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: CLERK OF THE TOWN OF L GATOS LOS GATOS, CALIFORNIA Atny009:AMENDIIORD i