(A) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
COSTS. All expenses incurred by the city for any removal or remedial action.
FACILITY. Any building, structure, installation, equipment, pipe or pipeline including, but not limited to, any pipe into a sewer or publicly- owned treatment works, well, pond, lagoon, impoundment, ditch, landfill, storage container, tank, motor vehicle, truck trailer, rolling stock or aircraft. Also, any site or area where a hazardous material has been deposited, stored, disposed of, abandoned, placed or otherwise come to be located.
HAZARDOUS MATERIALS. Any material, substance or mixture of materials or substances which are toxic, flammable, corrosive, explosive, carcinogenic or radioactive including, but not limited to, any substance or material which is designated a hazardous material pursuant to 49 U.S.C. §§ 5101 et seq. in a quantity and form which may pose a substantial present or potential hazard to human health, property or the environment when improperly released, treated, stored, transported, disposed of or otherwise managed.
OCCURRENCE. A discharge or threatened discharge of hazardous materials from a facility, equipment, vehicle or other instrumentality or thing within the boundaries of the city.
RELEASE. Any spilling, leaking, pumping, pouring, emitting, escaping, emptying, discharging, injecting, leaching, dumping or disposing of a hazardous material into or on any land, air, water, well, stream, sewer or pipe so that such hazardous material or any constituent thereof may enter the environment.
REMEDIAL ACTION. Any action consistent with permanent, remedy taken instead of, or in addition to, removal actions in the event of a release or threatened release of a hazardous material into the environment, to prevent or minimize the release of hazardous materials so that they do not migrate to cause a substantial present or potential hazard to human health, property or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches or ditches, clay cover, neutralization, cleanup of released hazardous materials or contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternate water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment.
REMOVAL. The cleanup or removal of released hazardous materials from the environment, such actions as may be necessary or appropriate to monitor, assess and evaluate the release or threat of release of hazardous materials, the disposal of removed material or the taking of such action as may be necessary to prevent, minimize or mitigate damage to the public health or welfare of the environment. The term includes, but is not limited to, security fencing, provision of alternative water supplies and temporary evacuation of threatened individuals.
RESPONSE. Any removal or remedial action.
RESPONSIBLE PARTY. Any person, firm, corporation, limited liability company, partnership, sole proprietorship, trust or entity who or which owns, leases, operates or controls any facility, equipment, vehicle or other instrumentality or thing from which a discharge of hazardous materials has occurred, is occurring or from which a discharge of hazardous materials is threatened.
(B) Prohibited acts. No person shall cause, threaten or allow the release of hazardous materials into the environment unless such release is in accordance with an appropriate permit granted by the Illinois Environmental Protection Agency or other state or federal agency having primary jurisdiction over the release and such release is in such place and manner as will not create a substantial present or potential hazard to human health, property or the environment.
(C) Response authority.
(1) The Fire Chief or his or her authorized representative shall have authority to respond to any release or threatened release of hazardous materials within the city or affecting the public water supply, wells or sewage treatment works located within the city. This authority includes, but is not limited to, remedial action and removal.
(2) The Fire Chief shall have primary authority to respond to any release or threatened release of hazardous materials as described above. The Fire Chief shall report any release or threatened release of hazardous materials to all appropriate federal, state and local public health, safety and emergency agencies within 24 hours of any substantial release of hazardous materials. The Fire Chief shall relinquish his or her response authority at such time, if any, as the federal, state or local public health, safety or emergency agency having primary jurisdiction over the release or threatened release has assumed responsibility for response to the release or threatened release.
(3) The Fire Chief, during such time as response authority is vested in him or her, shall be authorized to utilize all district personnel and equipment and he or she may, in his or her sole discretion, take such remedial or removal action as he or she may deem necessary or appropriate to respond to the release or threatened release of hazardous material.
(4) All city personnel shall cooperate with and operate under the direction of the Fire Chief or other person then exercising response authority under this section until such time as the person exercising such response authority has determined that the response is complete or responsibility for the response is assumed by the federal, state or local public health, safety or emergency agency having primary jurisdiction over the release or threatened release.
(5) The person exercising response authority under this section shall coordinate and/or cooperate with other federal, state or local public health, safety or emergency agencies involved in response to the release or threatened release of hazardous materials.
(D) Liability for costs.
(1) Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in division (E) of this section, the following persons shall be jointly and severally liable for all costs of removal and remedial action incurred by the city as a result of a release or threatened release of a hazardous material, provided such persons are not at the time of release or threatened release taxpayers of the city:
(a) The owner and operator of a facility or vessel from which there is a release or substantial threat of release of a hazardous material;
(b) Any person who, at the time of disposal, transport, storage or treatment of a hazardous material, owned or operated the facility or vessel used for such disposal, transport, treatment or storage from which there was a release or substantial threat of a release of any such hazardous material;
(c) Any person who by contract, agreement, or otherwise has arranged with another party or entity for transport, storage, disposal or treatment of hazardous materials owned, controlled or possessed by such person at a facility owned or operated by another party or entity from which facility there is a release or substantial threat of a release of such hazardous materials; or
(d) Any person who accepts or accepted any hazardous materials for transport to disposal, storage or treatment facilities from which there is a release or a substantial threat of release of such hazardous substances.
(2) Notwithstanding anything to the contrary in division (D)(1) above, taxpayers of the city shall be jointly and severally liable for all costs of removal and remedial action incurred by the city as a result of a release or threatened release of hazardous material only if:
(a) Such hazardous material was stored, produced, transported or used in violation of any federal, state or local statute, regulation or ordinance;
(b) Such persons are determined by the City Council to have chronically released or threatened to release such hazardous material; or
(c) Such persons are determined by the City Council to have been grossly negligent in the storage, production, transportation or use of such hazardous material or the release or threatened release was due to gross negligence by such persons or by their willful and wanton conduct.
(3) For the purpose of this section, taxpayers of the city shall not include any persons, firms or corporations, who, while engaged in commerce or business for profit, or for their own account as a part of their own for profit business operations, by themselves, by or through their agents, employees, officers or servants, carry and/or transport any hazardous material, as defined herein, within the city by means of any vehicle, including, but not limited to, a truck, train, boat, ship, barge or automobile, whether or not such entity is otherwise considered a taxpayer of the District.
(E) Defenses. There shall be no liability under division (D) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or substantial threat of release of a hazardous material and the damages resulting therefrom were caused solely by:
(1) An act of nature over which he or she had no control;
(2) An act of war;
(3) An act or omission of a third party, other than his or her employee or agent, or other than one whose act or omission occurs in connection with a contractual relationship existing directly or indirectly with him or her (except where the sole contractual arrangement arises from a published tariff and acceptance for a carriage by a common carrier by rail), if he or she establishes by a preponderance of the evidence that:
(a) He or she exercised due care with respect to the hazardous materials concerned, taking into consideration the characteristics of such hazardous material, in light of all relevant facts and circumstances; and
(b) He or she took precautions against foreseeable acts or omissions or any such third party and the consequences that could foreseeably result from such acts or omissions.
(4) Any combination of the foregoing.
(F) Release in accordance with law. There shall be no liability under this section for any release permitted by state or federal law, but only to the extent that such release is made in accordance with applicable state and federal law, regulations and permit requirements and the ordinances of the city.
(G) Public duty immunity. There shall be no liability under this section for damages as a result of any actions taken or omitted by the response authority, its agents and employees with respect to an incident creating a danger to public health, welfare or the environment as a result of any release or threatened release of a hazardous material including, but not limited to, actions taken or omitted in the course of rendering:
(1) Remedial action or removal under this section;
(2) Care, assistance or advice in accordance with this section;
(3) Care, assistance or advice in accordance with the National Contingency Plan pursuant to 42 U.S.C. §§ 9601 et seq., the Comprehensive Environmental Response, Compensation and Liability Act (Pub. Law No. 96-510, being 42 U.S.C. §§ 9601 et seq., as amended);
(4) Care, assistance or advice in accordance with the state Emergency Management Agency Act (20 ILCS 3305/1 et seq., as amended); or
(5) Care, assistance or advice at the direction of an on-site coordinator appointed under said National Contingency Plan, the state Emergency Management Agency Act (20 ILCS 3305/1 et seq., as amended) any City Emergency Service and Disaster Basic Plan or by such other public health, safety or emergency agency exercising jurisdiction over the release or threatened release of a hazardous material.
(H) Contractual indemnification; subrogation.
(1) No conveyance, transfer, sale, indemnification, hold harmless or similar agreement shall be effective to release the owner or operator of any facility or vessel or any person who may be liable for a release or threat of release under this section from the liability imposed under this section. Nothing in this section shall bar any agreement to insure, hold harmless or indemnify a party to such agreement for any liability under this section.
(2) Nothing in this section, including the provisions of division (G)(1) above shall bar a cause of action that an owner or operator or any other person subject to liability under this section, or a guarantor, has or would have, by reason of subrogation or otherwise against any person.
(I) Costs and penalties.
(1) Any person who is liable for the release or threatened release of a hazardous material who fails without sufficient cause to pay for or provide removal or remedial action upon or in accordance with a notice and request of the city or in accordance with any order of any court having jurisdiction on the matter, shall be liable to the city for any costs incurred by the city as a result of such failure to provide or take such removal or remedial action, together with the cost of any removal or remedial action taken by the member district in accordance with the ordinance, and all attorney fees and related legal costs incurred in connection therewith.
(2) In addition, any such person shall be guilty of a violation of this section and shall be fined not less than $100, nor more than $1,000, for each offense. A separate offense shall be deemed committed for each day on which a violation occurs or continues. Where such violation is found to be the result of willful and/or wanton conduct or gross negligence, or the person committing such violation attempts to evade responsibility hereunder by leaving the scene of the occurrence or by other means, that person shall be subject to a fine as provided for above or a fine in an amount equal to three times the costs, including attorney fees and legal costs, for which it is liable under division (I)(1) above, whichever is greater.
(3) Charges for removal or remedial action when rendered by the following named entities shall be as follows:
(a) That unless otherwise exempt, any responsible party shall be charged for services rendered by the Fire Department for any occurrence at the rate set forth in the following schedule of charges:
1. $100 per hour (or fraction thereof) per vehicle responding;
2. $50 per hour (or fraction thereof) for the Fire Chief responding;
3. $40 per hour (or fraction thereof) per Lieutenant responding;
4. $30 per hour (or fraction thereof) per Engineer responding;
5. $30 per hour (or fraction thereof) per emergency medical technician or paramedic responding $30 per hour (or fraction thereof) per firefighter responding; and
6. Replacement cost value for any item expended for the necessary mitigation or resolution of the occurrence.
(b) In the event it is deemed by the Fire Chief or his or her designee that it is necessary for the Fire Department to request mutual aid assistance, the responsible party shall be charged, in addition to the rates set forth in division (I)(3)(a) above, for all applicable charges assessed, for the services of each mutual aid company at the rate set forth in the following schedule of charges:
1. $200 per hour (or fraction thereof) per squad company;
2. $150 per hour (or fraction thereof) per engine company;
3. $200 per hour (or fraction thereof) per truck company;
4. $150 per hour (or fraction thereof) per tanker company;
5. $100 per hour (or fraction thereof) per ambulance company; and
6. Replacement cost value for any item expended for the necessary mitigation or resolution of the occurrence.
(c) In the event it is deemed by the Fire Chief or his or her designee that it is necessary for the Fire Department to request assistance from the Southwest Hazardous Materials Response Team, the responsible party shall be charged, in addition to the rates set forth in divisions (I)(3)(a) and (I)(3)(b) above, for all applicable charges assessed, for the services for the Southwest Hazardous Materials Response Team at the rate set forth in the following schedule of charges:
1. $100 per hour (or fraction thereof) per response trailer;
2. $100 per hour (or fraction thereof) per decontamination trailer;
3. $100 per hour (or fraction thereof) per foam trailer;
4. $60 per hour (or fraction thereof) for team chief;
5. $50 per hour (or fraction thereof) per sector officer;
6. $45 per hour (or fraction thereof) per team member; and
7. Replacement cost value for any item expended for the necessary mitigation of the occurrence.
(4) In the event that court or administrative body denies reimbursement to the SHMRT, it therefore becomes the duty of the city or the unit of local government where the spill is located to enforce its “Spiller Pays Ordinance” to the full extent authorized by law and to reimburse SHMRT for all costs provided for by law and collectable under this section. In the event that the city collects less than the full amount of the clean-up, the city and SHMRT shall be reimbursed pursuant to the bylaws of the SHMRT Executive Committee.
(5) In the event that it is deemed by the Fire Chief or his or her designee that it is necessary in the mitigation or resolution of an occurrence for the Fire Department to call in a separate, independent, specialized service or clean-up contractor, the responsible party shall be responsible for payment to the separate, independent, specialized service or clean-up contractor of all reasonable charges assessed by said contractor to complete the mitigation or resolution of the occurrence. The responsibility for this payment shall be in addition to any and all applicable charges assessed against the responsible party pursuant to division (I)(3) above.
(Prior Code, § 33.019) (Ord. 92-944, passed 12-22-1992; Ord. 2000-297, passed 2-22-2000)