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It is the intent of the Board of Supervisors that the County, through its Office of Emergency Services (OES) and the Department of Environmental Health and Quality (Department), should continue to participate in regional arrangements to ensure prompt and effective responses to hazardous materials release incidents (including suspected and threatened releases) within the County. Such participation helps to protect public health and safety and the environment. To the extent allowed by state law, responsible persons should pay for release responses. Where costs cannot be attributed and recovered, coordinated regional efforts should be funded regionally through the Unified San Diego County Emergency Services Organization (USDCESO), a joint powers agency established for these purposes. It is the further intent of the Board of Supervisors that the Department should respond to releases in the unincorporated area that do not fall within the ambit of USDCESO to the extent necessary to protect human health, safety and the environment. Finally, it is the intent of the Board of Supervisors that specialized capabilities developed within the Department to better protect the County be made available for deployment outside of the County at the direction of the Federal Emergency Management Agency, on a full cost recovery basis, where such arrangements will not degrade response capabilities within the County.
For releases in the unincorporated portions of the County, recovery of emergency response costs and expenses is authorized by Section 104.13 of the California Fire Code (as amended and adopted in this County) where a release that requires a response is a result of negligence, and by Section 364.1 of the County Administrative Code when recovery is authorized by State law. Several provisions of State law authorize the County, in particular circumstances, to recover emergency response costs incurred anywhere in the County when acting in an authorized capacity. These provisions include Sections 53150 through 53159 of the Government Code (releases caused by persons under the influence of alcohol or drugs), Section 13009.6 of the Health and Safety Code (releases that pose an imminent threat to health and safety and require an evacuation or that result in the spread of a hazardous substance beyond its origin), and Section 25515 of the Health and Safety Code (releases caused by or made worse by certain violations of State law). The chaptered enactments for these State laws clarify that they are not preemptive of other County powers to respond to releases and to recover costs. Finally, when acting under the auspices of USDCESO, a joint powers authority under State law, the above State law authorities and city and county authorities to take action and to recover costs, are applicable to allow USDCESO to recover response costs incurred by any USDCESO contractor.
(Added by Ord. No. 10412 (N.S.), effective 2-26-16; amended by Ord. No. 10536 (N.S.), effective 7-1-18; amended by Ord. No. 10709 (N.S.), effective 1-15-21; amended by Ord. No. 10927 (N.S.), effective 1-10-25)
The meaning of all terms in this section, not otherwise defined, shall be as set forth in the California Health and Safety Code.
"Controlled substance" means any substance defined as a "controlled substance" in section 11007 of the California Health and Safety Code.
"Department" shall mean the Department of Environmental Health and Quality.
"Director" shall mean the Director of the Department of Environmental Health and Quality.
"Hazardous substance" means any hazardous substance listed in section 25316 of the California Health and Safety Code or in section 6382 of the California Labor Code.
"Hazardous material" means any hazardous material as defined in section 25501 of the California Health and Safety Code.
"Hazardous waste" means any waste or combination of wastes that would constitute a hazardous waste pursuant to section 25117 of the California Health and Safety Code, including an "extremely hazardous waste" as defined in section 25115 of the Health and Safety Code.
"Flammable material" means any material which constitutes a flammable material pursuant to the California Fire as amended and adopted by the County of San Diego
"Release" and "threatened release" are defined as set out in section 25501 of the California Health and Safety Code.
(Added by Ord. No. 10536 (N.S.), effective 7-1-18; amended by Ord. No. 10709 (N.S.), effective 1-15-21; amended by Ord. No. 10927 (N.S.), effective 1-10-25)
To the extent feasible using available resources, the Director may establish, equip, train and maintain a Hazardous Incident Response Team (HIRT) that can safely and effectively respond to hazardous materials releases (including suspected or threatened releases) throughout the County.
(Added by Ord. No. 10412 (N.S.), effective 2-26-16; amended by Ord. No. 10536 (N.S.), effective 7-1-18; amended by Ord. No. 10927 (N.S.), effective 1-10-25)
(a) The Department may respond to releases (including suspected or threatened releases) of hazardous materials anywhere in the County, when necessary to protect public health and safety and the environment. For any responses undertaken pursuant to the authority of the Health Officer, such responses shall be coordinated with and under the immediate supervision of the Director of Environmental Health. Planning for, funding, and execution of release responses outside of the unincorporated areas of the County shall be coordinated with the Unified San Diego County Emergency Services Organization (USDCESO) and its member agencies. Responses to releases within the unincorporated area can be conducted through USDCESO or independently by the Department, as USDCESO and the Department find appropriate.
(b) When responding to a release or threatened release, the Director of Environmental Health may order that areas or premises be evacuated, and may determine when evacuated areas or premises may be reoccupied.
(c) When responding to a release or threatened release, the Department may order, supervise or undertake all measures necessary to protect public health and safety and the environment, including but not limited to measures to prevent or stop a release; measures to limit or stop the spread of hazardous substances; measures to suppress or extinguish fire; measures to contain, recover, remove, transport, store or dispose of hazardous substances or waste or contaminated environmental media; measures to mitigate the impacts of a release or fire; site safety, exposure control and monitoring and decontamination activities; and all activities reasonably related to the foregoing activities, including testing, sampling and staff work necessary to assess, evaluate and characterize the emergency condition, to formulate appropriate plans for corrective actions, and to prepare records for related reporting, cost recovery, and enforcement.
(d) When responding to a release or threatened release, the Department shall determine:
(1) Whether evacuation from the building, structure, property, or public right-of-way where the incident originated was necessary to prevent loss of life or injury.
(2) Whether the incident resulted in the spread of a hazardous substance or substances, or fire, that posed a danger making a response necessary.
(3) Whether the spread of a hazardous substance posed a real and imminent threat to public health and safety beyond the building, structure, property, or public right-of-way where the incident originated.
(4) Whether negligence caused or contributed to the incident, and if so the person whose negligence caused or contributed to the incident.
(5) Whether a violation of Sections 25504 to 25508.3, inclusive, or Section 25511 of the Health and Safety Code resulted in or significantly contributed to the emergency, including a fire, and if so the business, facility or handler that was in violation.
(6) Whether any other violation of law by an individual resulted in or significantly contributed to the emergency, and if so the identity of that individual and his or her employer.
(7) Whether, for an incident involving a motor vehicle, the operation of that motor vehicle caused the incident requiring an emergency response.
(e) The Department shall record their findings pursuant to subsection (d) of this section in a report or memorandum prepared close in time to the incident that required an emergency response. The report or memorandum shall include a short summary of the facts supporting those findings.
(Added by Ord. No. 10412 (N.S.), effective 2-26-16; amended by Ord. No. 10536 (N.S.), effective 7-1-18; amended by Ord. No. 10606 (N.S.), effective 7-1-19; amended by Ord. No. 10709 (N.S.), effective 1-15-21; amended by Ord. No. 10927 (N.S.), effective 1-10-25)
SEC 68.804. LIABILITY FOR AND PAYMENT OF COSTS FOR RESPONSES TO RELEASES OR THREATENED RELEASES OF HAZARDOUS SUBSTANCES.
(a) Those expenses of an emergency response necessary to protect public health and safety or the environment, incurred by the County of San Diego to confine, prevent or mitigate the release, escape or burning of any hazardous substance, or hazardous waste, are a charge against any person whose negligence causes the emergency conditions. Liability may be based on Section 104.13 of the California Fire Code (as amended and adopted in this County), by Sections 13009.6 and 25515 of the California Health and Safety Code, by Title 5, Division 2, Part 1, Chapter 1, Article 8 of the Government Code (commencing with Section 53150), and by Section 364.1 of the County Administrative Code, each as and when applicable.
(b) Those expenses of an emergency response necessary to protect public health and safety and the environment, incurred by the County of San Diego to confine, prevent or mitigate the release or escape of any hazardous substance, hazardous waste, or flammable material are a charge against any person who causes such emergency conditions by violating or being in violation of any law relating to the generation, transportation, treatment, storage, recycling, disposal, abandonment or handling of such hazardous substance, hazardous waste or flammable material, including, but not limited to the provisions of Chapters 6.5, 6.7 and 6.95 of Division 20 of the California Health and Safety Code, any County ordinance, or any permit, rule, regulation, standard, or requirement issued or adopted pursuant to State law or a County ordinance, or by illegally manufacturing, storing, selling, transporting or disposing a controlled substance or the precursor hazardous materials, hazardous substances, or flammable materials used, or the waste products of such manufacture, are a charge against any person whose violation causes the emergency conditions. Liability may be based on Section 104.13 of the California Fire Code (as amended and adopted in this County), by Sections 13009.6 and 25515 of the California Health and Safety Code, by Title 5, Division 2, Part 1, Chapter 1, Article 8 of the Government Code (commencing with Section 53150), and by Section 364.1 of the County Administrative Code, each as and when applicable.
(c) Persons who may be liable pursuant to this Chapter shall include, but are not limited to, present or prior owners, lessees, or operators of the property where the hazardous substance, hazardous waste, or flammable material is located and producers, transporters or disposers of such hazardous substance, hazardous waste, flammable material or controlled substance.
(d) Whenever emergency response expenses have been incurred by the County for the purposes specified in this Chapter, the Director shall calculate the amount of expenses incurred, identify the person or persons liable for reimbursement, and promptly prepare and serve an invoice and accompanying documentation as specified in subsection (k) of this section to all responsible parties. Where the emergency response is undertaken pursuant to a contract with USDCESO, the Director may arrange for the County Office of Emergency Services (OES) to prepare and serve these invoices.
(e) Expenses reimbursable to the County pursuant to this section are a debt of the person or persons liable therefor, and shall be collectible in the same manner as in the case of an obligation under contract, express or implied, and shall also be collectible as provided in section 68.805 of this Code.
(f) Persons liable for the expenses of an emergency response pursuant to this Chapter shall pay the costs of that response when and as invoiced by the Director or by OES.
(g) For purposes of this Chapter, the negligence or wrongful conduct of an employee acting within the scope and course of employment shall be attributed to both the employee and his or her employer.
(h) Unless an appeal is filed, costs and expenses payable under this Chapter shall be paid as invoiced.
(i) For responses undertaken pursuant to a contract with USDCESO, funds recovered by the Director in excess of the County's collection costs shall be reimbursed to USDCESO.
(j) For responses undertaken jointly with another agency but not pursuant to a contract with USDCESO, funds recovered for the costs of other participating agencies shall be reimbursed to those agencies.
(k) Invoices for costs and expenses payable under this chapter shall be served as provided in section 11.112 of this Code. The invoice or an included statement shall set out the provisions of law or ordinance on which the invoice is based, a brief summary of the facts establishing liability, an itemization of costs and expenses by category, and procedures for appealing the invoice.
(l) The costs and expenses of emergency response recoverable under this Chapter include the following:
(1) Time expended by County staff for any activity described in subsection (c) of Section 68.803 of his Code. Environmental Health Specialist time shall be charged at the hourly rate in subsection (m) of Section 65.107 of this Code. All other County staff, management, and legal services time shall be charged at the rates otherwise approved by the Auditor and Controller. Time expended includes time for travel, time at the release site, and time for documentation, follow-up reporting, enforcement, appeals and collections processes.
(2) The costs of equipment usage, the cost of supplies, laboratory costs and charges, and all other contract service costs including any legal services costs.
(3) Administrative and overhead costs.
(4) Recoverable costs incurred by other agencies participating in the emergency response, as reported to the County by those agencies.
(5) Where the liability of a business or facility for an emergency response are based at least in part on Section 25515 of the Health and Safety Code, costs and expenses that can be invoiced pursuant to this Chapter also include the costs of cleaning up and disposing of released hazardous wastes and materials, whether incurred as part of an emergency response or after that emergency has been contained.
(Added by Ord. No. 10412 (N.S.), effective 2-26-16; amended by Ord. No. 10536 (N.S.), effective 7-1-18; amended by Ord. No. 10927 (N.S.), effective 1-10-25)
(a) An invoice issued pursuant to this Chapter can be contested as provided in Title 1, Division 8 Chapter 2 of this Code, in the same manner as an administrative citation.
(b) A person may obtain judicial review of the decision of a hearing officer on a contested invoice by filing a petition for writ of mandate with the San Diego County Superior Court in accordance with the timelines and procedures set forth in California Code of Civil Procedure Section 1094.5.
(c) The County may initiate a civil action to collect as a debt any amount invoiced pursuant to this Chapter that is not paid within 30 days of the due date specified in that invoice. If said charges are not paid within thirty (30) days from the date of the invoice, said matter may be referred to the County Counsel, or Revenue and Recovery, who shall be authorized to take all appropriate action, including bringing suit, for collection of the charges.
(d) Alternatively, if an invoice is not contested, or is contested and is upheld in an administrative hearing and if applicable in the Superior Court, a lien as authorized by section 101345 of the California Health and Safety Code, may be recorded upon all real property in the County owned or later acquired by any person whose intentional or negligent action caused the incident.
(Added by Ord. No. 10536 (N.S.), effective 7-1-18; amended by Ord. No. 10927 (N.S.), effective 1-10-25)
Nothing in this chapter restricts the authority of the County to address a release of hazardous substances or wastes wholly or in part under other provisions of law or ordinance, including but not limited to the enforcement of County Code requirements, or the enforcement of State laws or regulations the County is authorized to enforce, or through a civil action seeking injunctive relief, or through a nuisance abatement proceeding pursuant to Title 1 of this Chapter or the California Civil Code, or by referral to another agency or a prosecuting authority.
(Added by Ord. No. 10536 (N.S.), effective 7-1-18; amended by Ord. No. 10927 (N.S.), effective 1-10-25)