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HomeMy WebLinkAboutORDINANCES-1989-065-O-89• AN ORDINANCE ADDING A NEW CHAPTER 13 TO TITLE 9 OF THE CITY CODE PERTAINING TO RECOVERY OF HAZARDOUS SUBSTANCES REMOVAL AND ABATEMENT COSTS Whereas, incidents involving the actual or threatened release of hazardous substances into the environment are on the increase; and Whereas, the City's emergency response to a hazardous substance incident may require the expenditure of costly materials which may be irreplaceable without financial assistance, Whereas, the financial burden of removing or abating a hazardous substances incident is more equitably borne by those responsible for it or in control of the substance or the container, rather than by the citizens of Evanston as a whole, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF EVANSTON, COOK COUNTY ILLINOIS: Section 1: That the City Code of the City of Evanston, 1979, as amended, be further amended by the addition of the following new Chapter 13, Title 9: CHAPTER 13 Hazardous Substances Removal and Abatement Costs Section: 9-13-1: Definitions ABANDONMENT: The act of leaving a thing with the intent not to retain possession of or assert ownership or control over it. The intent need not coincide with the act of leaving. It is prima facie evidence of the necessary intent to abandon a vehicle containing a hazardous substance that: 1 (A) The vehicle has been left for more than two days unattended and unmoved; or (B) License plates or other identifying 1 • • is n marks have been removed from the vehicle; or (C) The vehicle has been damaged or is deteriorated so extensively that it has value only for junk or salvage; or (D) The owner or operator has been notified by a law enforcement agency to remove the vehicle, and it has not been removed within twenty-four hours after notification. FIRE CHIEF The Fire Chief of the City of Evanston, or his authorized representative. HAZARDOUS SUBSTANCES: A. Any material as designated pursuant to the federal "Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 USC 9601(14), as amended; or B. Any substance, material, waste, or mixture designated as a hazardous material, waste, or substance according to 49 Code of Federal Regulations (CFR) or according to Ill. Rev. Stat Ch. 111 1/2 paras. 1300.14 and 1003.15, as amended, excluding highway route -controlled quantities of radioactive materials as defined in 49 CFR 173.403(1), excluding ores, the products from mining, milling, smelting, and similar processing of ores, and the wastes and tailings therefrom, and excluding special fireworks as defined in 49 CFR 173.88(d) when the aggregate amount of flash powder does not exceed fifty pounds. C. Any material which is listed on the list of Environmental Protection Agency pollutants, 40 CFR 401.15, as amended; or D. Any material which is classified by the National Fire Protection Association (NFPA) as either a flammable liquid, a Class II combustible liquid, -or a Class III A combustible liquid; or E. Any material which has been determined be the party storing it, or having control of it, through testing or other objective means, to be likely to create a significant potential or actual hazard to public health, safety, or welfare or to the environment. This definition shall not establish a requirement to test for the purposes of this Chapter; or F. Any material which has been determined by the Fire Chief, through information based on appraisal and assessment from reliable resources, to be likely to create a significant potential or actual hazard to public health, safety, or welfare or to the environment. The fact that the material in question is not designated as a hazardous substance pursuant to sections A through E of this definition or is 2 excluded by the legislation or NFPA classifications of sections A through D, does not preclude the Fire Chief from determining that the material is a hazard, given the totality of the particular facts and circumstances. HAZARDOUS • SUBSTANCE INCIDENT: Any emergency circumstance involving the sudden release or threatened release of a hazardous substance which, in the judgment of an emergency response authority, whether said emergency response authority be the City, a MABAS agreement member unit, or a federal or state agency or other local agency, threatens immediate and irreparable harm to the environment or the health, safety, or welfare of any individual other than individuals exposed to the risks associated with hazardous substances in the normal course of their employment. "Hazardous substance incident" includes those incidents of releasing or abandoning of a hazardous substance, whether or not such releasing or abandoning is found to threaten immediate and irreparable harm, but such term does not include any release of a .hazardous substance authorized pursuant to any federal, state, or local law or regulation. • PERSON: RELEASE: Any individual, public or private corporation, partnership, association, firm, trust, or estate, the state or any department, institution, or agency thereof, any municipal corporation, county, city and county, or other political subdivision of the state, or any other legal entity whatsoever which is recognized by law as the subject of rights and duties. Any actual or threatened spilling, leaking pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into -the environment, but excludes (a) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons; (b) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine; (c) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in Atomic Energy Act of 1954, if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under Section 1870 of such Act; and (2) the normal application of fertilizer. VEHICLE: Any device which is capable of moving itself, or • of being moved, from place to place upon wheels of endless tracks. The term includes, but is not limited to, any motor vehicle, trailer, or semi- trailer. 3 VESSEL: A ship or other craft used in navigation; any structure which is made to float upon the water or which does float upon the water. REMOVE OR REMOVAL: The cleanup or removal of released hazardous substances from the environment, such actions as • may be necessary to be taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water suppliers, temporary evacuation and housing of threatened individuals, and any emergency assistance which may be provided under The Illinois Emyrgency Services and Disaster Agency Act of 1975, as amended, pursuant to the MABAS agreement. 9-13-2: LIABILITY FOR HAZARDOUS SUBSTANCE INCIDENT REMOVAL OR ABATEMENT COSTS: (A) The Fire Department is authorized to remove or abate the effects of any hazardous substance incident involving the actual or threatened release of a hazardous material (1) upon or into property or facilities in the City or along its lakefront or (2) pursuant to any Mutual Aid Box • Alarm System (MABAS) agreement in effect, it being understood that such aid will be rendered outside the City limits. The following described persons shall be jointly and severally liable (a) to the City for the payment of all costs incurred by the City as a result of such removal and/or abatement activity, and (b) to any member unit of the MABAS agreement rendering aid to the City pursuant to said agreement.- (1) The person or persons whose negligent, reckless, or willful act or omission proximately caused such release; and (2) The person or persons who owned or had custody or control of the hazardous substance at the time of such release, without regard to fault or proximate cause; and (3) The person or persons who owned or had custody or control of the container, transport vehicle, or transport vessel which held such hazardous substance at the time of, or immediately prior to, such release, without regard to fault or proximate cause. • (4) Any person owning or in control of any real property from which a hazardous substance is or may be released. 1 Ill. Rev. Stat., Ch. 127, par. 1101 et seq. 4 (B) In the event that any person undertakes, voluntarily or upon order of the Fire Chief, to remove or abate the effects of any actual or threatened hazardous substance release upon or into any property or facility in the City, or along its lakefront, the Fire Chief may take such action as is necessary to supervise or verify the adequacy of the removal or abatement. The person(s) described in subsection (a)(1) • through (a)(4) (a) shall be liable to the City for all costs incurred as a result of such supervision or verification. 9-13-3: REMOVAL OR ABATEMENT COSTS: A. For purposes of this Chapter, costs incurred by the City shall include, but shall not be limited to, the following, whether incurred within the City, along its lakeshore or outside the City limits as a result of rendering mutual aid pursuant to the MABAS agreement: actual labor cost of City personnel, including benefits and administrative overhead; costs of consultants whose expertise is required to remove or abate the incident or to assess the nature and extent of damage done; cost of equipment operation; replacement cost of vehicles or equipment which, in the determination of the Fire Chief, is contaminated beyond reuse or repair; laboratory costs; cost of materials or equipment obtained directly by the City; cost of any contract or mutual aid labor and materials; attorneys' fees incurred in collecting monies owed to the City by liable parties. B. When the action to remove or abate the effects of a hazardous substance includes • extinguishing a fire, the costs may only include the expenses, such as those set forth in section 9-13-3-A, related to the hazardous substance and not any expense related to extinguishing the fire. C. Nothing contained in this Chapter shall be construed to change or impair any right of recovery or subrogation arising under any mutual aid agreement or any other ordinance, statute, or provision of law. No criminal quasicriminal remedy for any wrongful action shall be excluded or impaired by this Chapter. D. The Director of Finance shall allow for a reasonable time for payment of the reimbursement amount and shall consider any written objections on the type and amount of expense. In the bvent that no payment or response to the request for reimbursement has been received within thirty days from the date of the invoice, the Director of Finance is hereby authorized to direct the Corporation Counsel to take appropriate legal action. E. A MABAS member City in a hazardous • suant to the MABAS own right of action recovery of costs. 5 unit rendering aid to the substances incident pur- agreement shall have its under this Ordinance for • 0 • recovery of costs. 9-13-4: LIBERAL CONSTRUCTION: This Chapter shall be liberally construed to give effect to its purpose, which is to shift the burden of liability for the aforesaid removal or abatement costs from the citizens of Evanston to those responsible for the incident. 9-13-5: SEVERABILITY: If any provision, clause, sentence, paragraph, section or part or this Chapter, or application thereof to any person or circumstance, shall for any reason be adjudged by a court of competent Jurisdiction to be unconstitutional or invalid, said judgment shall not affect, impair or invalidate the remainder of the Chapter and the application of such provision to other persons or circumstances, but shall be confined in its operation to the provision, clause, sentence, -- paragraph, section or part thereof directly involved in the controversy in which such Judgment shall have been rendered and to the person or circumstances involved. It is hereby declared to be the legislative intent of the City Council that this Chapter would have been adopted had such unconstitutional or invalid provisions, clause, sentence, paragraph, section or part thereof not been included. Introduced: t 1989 Adopted: -LCch: �1989 ATTEST: L.2- '. i' � _.. l City Clerk Ap�p$oved asp o form: 1 Corporation Counsel Approved: / ��,Lc"1989 Mayor R F