(A) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ABANDONMENT. The act of leaving a thing with the intent not to retain possession of or assert ownership 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, vessel, or container containing a hazardous substance that:
(a) The vehicle, vessel or container has been left for more than two days unattended and unmoved;
(b) License plates or other identifying marks have been removed from the vehicle, vessel, or container;
(c) The vehicle, vessel, or container has been damaged or is deteriorated so extensively that it has value only for junk or salvage; or
(d) The owner/operator has been notified by a law enforcement agent to remove the vehicle, vessel, or container and it has not been removed within 24 hours after notification.
CONTAINER. A receptacle used for the shipment or storage of goods that meets one or more of the following:
(a) Of permanent character or strong enough for repeated use;
(b) Designed for or capable of transporting or storing small quantities of materials, such as a box, drum, barrel, can, cargo container, or carboy; or
(c) Specifically designed to facilitate the carriage of goods by one or more modes of transportation without intermediate reloading.
FIRE CHIEF. The appointed or acting Fire Chief of The City of Lake Forest, or his or her authorized representative.
HAZARDOUS SUBSTANCE.
(a) Any material as designated pursuant to the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601(14), as amended;
(b) Any substance, material, waste, or mixture designated as a hazardous material, waste, or substance according to the provisions of Title 49 of the Code of Federal Regulations or the Uniform Hazardous Substances Act of Illinois, 430 ILCS 35/1 et seq., as amended, or otherwise regulated pursuant to regulations promulgated pursuant to CERCLA;
(c) Any material listed as a toxic pollutant pursuant to 40 C.F.R. Part 401.15, as amended, or other federal regulations;
(d) Any material that qualifies as a "hazardous material" under 430 ILCS 50/2.05 or 430 ILCS 5/1;
(e) Any material that is classified by the National Fire Protection Association (NFPA) as a flammable liquid, a class 2 combustible liquid, or a class 3 combustible liquid;
(f) Any material that has been determined by the party storing it, or having control of it, through testing or other means, to be likely to create a significant potential or actual hazard to the public health, safety, or welfare, or to the environment;
(g) Gasoline, oil, and other automotive fluids; or
(h) Any material that has been reasonably 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 the public health, safety, or welfare or to the environment.
HAZARDOUS SUBSTANCE INCIDENT. Any circumstance involving the release, threatened release, or abandonment of a hazardous substance, which, in the judgment of an emergency response authority, whether said emergency response authority be the city, or a federal or state agency, or other local agency, creates a significant potential or actual hazard to the environment or to the public health, safety, and welfare. HAZARDOUS SUBSTANCE INCIDENT also includes those incidents of releasing, threatening to release, or abandoning a hazardous substance, whether or not such release, threatened release, or abandoning is found to cause or threaten immediate and irreparable harm, but such term does not include any release of a hazardous substance that is otherwise authorized pursuant to federal, state, or local law or regulation. HAZARDOUS SUBSTANCE INCIDENTS shall be classified into three levels:
(a) LEVEL I HAZARDOUS SUBSTANCE INCIDENT. A hazardous substance incident that the Fire Chief determines involves a release of less than 55 gallons or 660 pounds of hazardous substances.
(b) LEVEL II HAZARDOUS SUBSTANCE INCIDENT. A hazardous substance incident that the Fire Chief determines involves a release of greater than 55 gallons or 660 pounds of hazardous substances.
(c) LEVEL III HAZARDOUS SUBSTANCE INCIDENT. A hazardous substance incident for which either the Fire Chief calls out a specialized "haz mat" response team or the Mayor declares a state of emergency.
PERSON. Any individual, public or private corporation, partnership, association, firm, trust, sole proprietorship, estate, state or any department, institution, or agency thereof, any municipal corporation, county, or other political subdivision of the state, or any other legal entity whatsoever which is recognized by law.
RELEASE. Any actual or threatened spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, vaporizing, evaporating, or disposing into the environment, but excludes:
(a) Any release that results in exposure to persons solely within a work place, with respect to a claim which such persons may assert against the employer of such person;
(b) Emissions from the engine exhaust of a motor vehicle, aircraft, or other vessel;
(c) An authorized application of fertilizer; or
(d) A release authorized pursuant to any federal, state, or local law or regulation.
REMOVE or REMOVAL. The controlling, containing, isolating, collecting, harnessing, or stabilizing of released hazardous substances from the environment; or the cleanup, abatement, site management or fire extinguishment relating to a hazardous substance incident; or any action as may be necessary to be taken in the event of a release or the threat of a release of hazardous substances; or such actions as may be necessary to monitor, assess, supervise, or evaluate the release or threatened release of hazardous substances, the disposal of removed material, the abatement of any release or abandonment of any hazardous substance or any vessel, vehicle, or container holding a hazardous substance; or the taking of such other actions as may be necessary to minimize or mitigate damage to the public health, safety, or welfare or the environment which may otherwise result from a release or threatened release of hazardous substances. The term REMOVE or REMOVAL includes, in addition, but without limitation, security fencing, containment barriers, or other measures to limit access to or spread of hazardous substances; provisions of alternative water supplies; temporary evacuation and housing of
threatened individuals; and any other emergency assistance which may be provided, including assistance that is a consequence of a response to a release or threatened release or abandonment of a hazardous substance.
RESPONSIBLE PARTIES. The following persons are RESPONSIBLE PARTIES for purposes of this section:
(a) The person or persons whose conduct caused the hazardous substance incident;
(b) The person or persons who owned or had custody or control of the hazardous substance at the time of such hazardous substance incident, without regard to fault or proximate cause;
(c) The person or persons who owned or had custody or control of the container, vehicle, or vessel which held such hazardous substance at the time of, or immediately prior to, such hazardous substance incident, without regard to fault or proximate cause;
(d) Any person owning or in control of any real property from which a hazardous substance is, or is threatened to be, released; and
(e) Any person who assists a person identified in either divisions (a) through (d) above in connection with a hazardous substance incident.
VEHICLE. Any device which is capable of moving itself, or being moved, from place to place upon wheels or tracks. The term includes, but without limitation, automobiles, trucks, semitractors, semitrailers, railroad engines, and railroad cars.
VESSEL. Any craft which is made to float upon water or which does float upon water.
(B) Authority. The Fire Chief is hereby authorized within his or her reasonable discretion to declare a situation as a hazardous substance incident, whether such declaration is made before or after a response to such situation. A declaration of a hazardous substance incident shall invoke the
provisions of this section. Following a declaration of a hazardous substance incident, the Fire Chief shall deliver such declaration to the Mayor and City Manager.
(C) Violations.
(1) No person shall cause or assist in causing a hazardous substance incident to occur within the corporate limits of the city. Subject to § 41.01, a fine of not less than $250 nor more than $750 shall be imposed for each day during which a hazard substance incident occurs or removal activities relating to a hazardous removal incident continues.
(2) No person shall interfere with removal efforts associated with a hazardous substance incident. Subject to § 41.01, a fine of not less than $100 nor more than $750 shall be imposed for each day that such interference occurs.
(D) Response to hazardous substance incident, removal, and costs. The Fire Chief is authorized to remove or cause the removal of the effects of any hazardous substance incident when such removal:
(1) Results from a hazardous substance incident occurring upon or in property or facilities located within the corporate limits of the city;
(2) Occurs in connection with any mutual aid agreement in effect;
(3) Results from a hazardous substance incident in or affecting the waters of any lake, pond, creek, river, wetland, or stream located within or flowing through the corporate limits of the city or that directly or indirectly discharges into any property located within the corporate limits of the city; or
(4) Occurs outside the corporate or response limits of the city where the health, safety, welfare, or property of the city or its residents or businesses are in danger.
(E) Liability. All responsible parties shall be jointly and severally liable to the city for payment of all costs, direct and indirect, foreseeable and unforeseeable, incurred by the city because of any removal of a hazardous substance incident, including without limitation the direct and indirect costs identified in division (G).
(F) Voluntary abatement. In the event any person undertakes voluntarily or upon order of the Fire Chief to remove the effects of any hazardous substance incident, the Fire Chief may, as part of the city's removal activities, take such action as is necessary or desirable to supervise or verify the adequacy and safety of the voluntary removal activities. The responsible parties shall be liable to the city for all costs, direct or indirect, incurred as a result of such supervision or verification.
(G) Scope of liability. The costs recoverable under this section shall include, but not be limited to, the following:
(1) Response cost. Subject to § 41.01, whenever the Fire Chief declares that a hazardous substance incident has occurred, the responsible parties shall pay to the city a flat fee reflecting the incidental expenses associated with the cost of responding to such hazardous substance incident as follows:
(a) Level I hazardous substance incident: $250 for each day during which a hazardous substance incident occurs or removal activities relating to a hazardous removal incident continues.
(b) Level II hazardous substance incident: $500 for each day during which a hazardous substance incident occurs or removal activities relating to a hazardous removal incident continues.
(c) Level III hazardous substance incident: $1,000 for each day during which a hazardous substance incident occurs or removal activities relating to a hazardous removal incident continues.
(2) Miscellaneous materials cost. Because certain materials will customarily be utilized in
response to a hazardous substance incident, and such materials cannot be easily tracked or measured, the City Council has determined that, subject to § 41.01, the responsible parties shall pay to the city a flat fee in the following amounts to reimburse the city for the cost of such miscellaneous materials:
(a) Level I hazardous substance incident: $50;
(b) Level II hazardous substance incident: $100; and
(c) Level III hazardous substance incident: $500.
(3) Reimbursable costs. To the extent that the city (either directly or indirectly through supplemental responders pursuant to an intergovernmental agreement) incurs discrete costs in connection with removal activities associated with a hazardous substance incident, the responsible parties shall reimburse the city for the actual amounts incurred by the city, including without limitation:
(a) Any and all personnel costs based on the hourly costs (wages, benefits, and employer taxes) of each employee involved as periodically established by the city;
(b) The actual cost of any experts or consultants retained by the city in connection with removal activities arising from any hazardous substances incident;
(c) The actual cost for replacement materials and equipment used or damaged in connection with removal activities;
(d) Any and all costs of collection (including, without limitation, reasonable attorney fees and court costs) incurred by the city in enforcing this section, or in obtaining payment from any responsible party or parties hereunder.
(4) Determination of costs for reimbursement. The Fire Chief shall cause an invoice to be prepared and issued to the responsible parties with respect to all amounts due under this division (G). The Fire Chief may, in his or her discretion, seek less than full recovery of the costs relating to a hazardous substance response depending on the cooperativeness, culpability, and overall circumstances surrounding the hazardous substance incident. The responsible parties shall pay any invoice issued by the Fire Chief under this section within 60 days after the date of issuance by the Fire Chief. Any amount not paid within such 60-day period shall be subject to interest at a rate of 1% per month or fraction thereof calculated from the end of the 60-day payment period.
(H) Other remedies. Nothing herein shall limit, change, or impair the right of recovery or subrogation arising under any mutual aid agreement, or other ordinance, statute, regulation, or provision of law. No criminal or quasi-criminal remedy (including, without limitation, fines) for any wrongful action shall be excluded or impaired by this chapter.
(I) Liberal construction. This section shall be liberally construed to give effect to its purposes, which are as follows:
(1) To shift the burden of liability for hazardous substance incidents and the response thereto or removal thereof from the taxpayers of the city to responsible parties;
(2) To deter responsible parties from allowing hazardous substance incidents to occur; and
(3) To protect the safety and living environment of the residents of the city.
(Ord. 2018-23, passed 6-4-2018)