HomeMy WebLinkAboutOrdinances - No. 1738ORDINANCE NO. 1738
OF LODl AM~NDIN~
AND SAFETY -
MENTAL RESP
’ SECTION “2,” AND
8.24.040 - “LIA~ILITY,” ECTION “F,” TO THE LODl MUNICIPAL CODE
RELATING TO A~AT~M~NT A~~ION COST AND RECOVERY ISSUES
_____________________s_____________s____------------------ _-_______________1______l________s______--------------------------------
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LODl AS FOLLOWS:
Section 8.24.010 “Definitions” Subsection “2 of the Lodi Municipal Code is
led and reenacted to read as follows:
2. The term “abatement action costs” means:
A. at or in connection with any site (or any separate s ivision or area within a site) at
which the city is not liable under 42 U.S.C.$ 9607 for the co response to site conditions
resulting in whole or in part from the release or threaten^ release of hazardous substances to
which the city has responded or is responding under this chapter, any and all legal, technical, or
admin~strative fees and costs, and interest and other costs of financing incurred by the city in
performing or preparing to perform an abatement action in compliance with the requirements of
this chapter. The term “abatement action costs“ shall specifically include, but shall not be limited
to, any and all of the following costs incurred by the city:
to retain expert assistance in health, law, engineering, and environmental
science, expert witness services and legal fees and reasonable costs of litigation (including, but
not limited to, internal costs of the city attorney’s office or outside legal counsel deemed
necessary at the sole discretion of the city to effectively respond to conditions at and emanating
from the site) to study, inv~s~iga~e, abate, remove, remediate, or respond to an actual or
threatened environmental nuisance or any endangerment to the public healti/, welfare, or the
environment that may be presented by an actual OF threatened environmental duisance;
ii. to investigate or respond to the existence, or threat of an environmental
nuisance;
iii. to monitor, assess, or evaluate an environmental nuisance or any
endangerment to the public health, welfare, or the environment that may be presented by an
actual or threatened env~ronmental nuisance;
iv. to prevent, minimize, or mitigate an environmental nuisance or any endangerment to the public health, welfare, or the environment that may be presented by an
actual or thfeat~ned enviro~mental nu~sance;
to oversee and monitor the performance by any responsible party of any
investigation or abatement action in response to a condition which is or may be an
environmental nuisance;
vi. to review, comment on, or revise a responsible party‘s plans and
proposals submitted pursuant to Section 8.24.050(E) or to oversee and monitor the
performance by any responsible party of any of the monitoring and testing activities which may
be required pursuant to Section 8.24.050(E);
to prepare for or undertake necessary enforcement activity authorized by
this Chapter 8.24, including the recovery of abatement action costs incurred or to be incurred by
the city or any injunctive relief authorized by this chapter to respond to an environmental
nuisance, including enfofcement activity deemed necessary by the city to obtain information and
site access authorized by this chapter; and
i.
v.
vii.
viii. costs of inves ation and evaluation, as authorized by the city council, of
such financing, with recourse to t maximum exte ilable solely against the present and
future assets and recoveries pledged to comprehensive municipal environmen~al response fund
or any sub-fund of the comprehensive municipal environmentai response fund created by the
city council as authorized by Section 8.24.070(A), as may be necessary and proper to
accomplish the purposes set forth in this chapter; and
ix. costs of issuing, servicing, and retiring of any financing instruments
authorized by the city council as provided in Section 8.24.070, with recourse to the maximum
extent available solely against the present and future assets and recoveries pledged to the
comprehensive municipal environmental response fund or any sub-fund of the comprehensive
municipal environmental response fund created by the city council as authorized by Section
8.2~.070(A); and
8. At or in connection with any site (or any separate subdivision or area within a site) to
which the city has responded or is responding under this ch , and at which the city is liable
under 42 U.S.C.Cj 9607 for the costs of response to site co s resulting in whole or in part
from the release or threatened release of hazardous substances, all such fees and costs
included within the definition set forth in subsection 2(a) of this Section 8.24.010, except that
such term shall not for purposes of this chapter include, at or in connec~ion with any site (or any
separate subsection or area within a site) to which this subsection 2(b) applies, any a~orneys
fees and costs, expert witness fees and costs or other litigation costs incurred or to be incurred
by the city in the preparation or conduct of any litigation to recover abatement action costs
pursuant to this chapter, or to secure judicial abatement of an environmental nuisance pursuant
to this chapter.
C. Notwi
term shall not in
issued pursuant to Sec~ion ~.24.050(~) of this chapter prior to the entry of a judicial order
upholding that information demand, in whole or in part.
ing the provisions of subparag~aphs (a) and (b) of this subse
ny costs incurred to compel compl~ance with an informati
Section 8.24.040 - "Liability" Subsection "F" of the Lodi Municipal Code is hereby
reena~ted to read as follows:
F. Recovery of Attorneys Fees By Prevailing Party Pursuant to California Government Code
Section 38773.5.
litigation expenses, including attorneys and expert witness
ts may be recovered by the prevailing party in any
brought or continued in whole or in part pursuant to this chapter by
the city attorney:
a. to recover abatement action costs incurred and to be incurred by the City
of Ladi;
b. to or compel compliance with an Abatement Action Order issued
pursuant to this c , to enforce an information demand, or an access, inspection or
monitoring order, following a judicial order upholding the demand or order in whole or in
part; or
to secure abatement of an actual or threatened endanger men^ to the
public health, welfare, or the environment arising out of, in whole or in part, an actual or
threatened environmental nuisance.
C.
2. No~ithstanding Paragraph 1 ection F, the recovery of such fees and
s’ fees, by the pr y is strictly limited to those individual
in which the city elects, at the initiation of that individual action or
All o~dinances and parts of o~dinances in conflict herewith are repealed insofar
. No Mandatory Duty of Care. This ordinance is not intended to and shall not be r given effect in a manner which imposes upon the City, or any officer or employee
of care towards persons or property within the City or outside of the
ry of its own attorneys‘ fees.
City so as to provide a basis of civil liability for damages, except as otherwise imposed by law.
Severability. If any provision of this ordinance or the application thereof to any
ircumstances is held invalid, such invalidity shall not affect other provisions or
of the ordinance which can be given effect without the invalid provision or
application. To this end, the provisions of this ordinance are severable. The City Council
hereby declares that it would have adopted this ordinance irrespective of the invalidity of any
particular portion thereof.
6. Effect of On-going Actions. The effect of this Ordinance upon preceding or on-
so dings shall be determined in accord with the following provisions of this
the repeal of Section 8.24.010(2) and Section 8.24.040(F) of
y Code by operation of s ions 1 and 2 of this Act, any action
e Subsections shall remain in , and be subject to Chapter 8.24
ion 8.24.010) of Title 8 of the Health and Safety Code, as including the
y section 1 of this Act.
I and reenactment of Section 8.24.010(2) and Secti n 8.24.040(F) of
afety Code by sections I and 2 of this Act shall no t/ terminate, affect,
or modify any proceeding, order, or agreement issued or entered into by the City, or any officer
or employee of the City pursuant to Chapter 8.24, or any rights or obligations arising out of or
pursuant to those provisions, and no~i~hstanding the effective date of this act, the provisions of
Chapter 8.24 (commencing with Section 8.24.010~ of Title 8 of the Health and Safety Code, as
includjng the subsections reenacted by sections 1 and 2 of this Act, shall apply retroactively to
those proceedings, orders, or agreements.
. This ordinance shall be published one time in the “Lodi News-Sentinel,” a daily
f general circulation printed and published in the City of Lodi and shall take effect
thirty days from and after its passage and approval.
Approved this 7Ih day of January, 2004
ckston, City Clerk of the City of Lodi, do hereby certify that Ordinance No.
Council of the City of Lodi held
and ordered to print at a regular
at a regular meeting of
thereafter pass~d~
eld January 7, 2004, by th ng vote:
AVES: COUNCIL MEMBERS - Beckman, Howard, and Land
COUNCIL MEMBERS - Hitchcock and Mayor Hansen
CIL MEMBERS - None
CIL MEMBERS - None
th
dt
inance No. 1738 was appr
e has been published pur
and signed by the Mayor on the date of
Approved as to Form:
USA AN J. BLACKSTON
City Clerk