Sec. 360.408. - Environmental damage assessment; liability for damages; enforcement of orders; remittitur.
(a) Definitions. For the purposes of this Section, Sections 360.501—360.505 and Sections 360.601—360.604:
(1) Facility means:
(i) A building, structure, installation, equipment, pipe or pipeline (including a pipe into a sewer or publicly-owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock or aircraft; or
(ii) A site or area where a hazardous substance, pollutant or contaminant has been deposited, stored, disposed of or placed or otherwise came to be located;
but does not include a consumer product in consumer use or a vessel.
(2) Hazardous substance means:
(i) A substance designated pursuant to Section 1321(b)(2)(A) of Title 33, United States Code.
(ii) An element, compound, mixture, solution or substance designated pursuant to Section 9602 of Title 42, United States Code.
(iii) A hazardous waste having the characteristics identified under or listed pursuant to Section 6921 of Title 42, United States Code (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C. Section 6901 et seq.] has been suspended by act of Congress).
(iv) A toxic pollutant listed under Section 1317 of Title 33, United States Code.
(v) A hazardous air pollutant listed under Section 7412 of Title 42, United States Code.
(vi) An imminently hazardous chemical substance or mixture with respect to which the Administrator of the Environmental Protection Agency has taken action pursuant to Section 2606 of Title 15, United States Code.
This term does not include (i) petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (i)—(vi) or (ii) natural gas, natural gas liquids, liquefied natural gas or synthetic gas usable for fuel (or mixtures of natural gas and synthetic gas).
(3) Owner or operator means, in the case of:
(i) And with respect to:
(A) A vessel, a person owning, operating or chartering by demise, the vessel.
(B) An onshore facility or an offshore facility, a person owning or operating the facility.
(C) An abandoned facility, a person who owned, operated or otherwise controlled activities at the facility immediately prior to the abandonment.
(ii) A hazardous substance, pollutant or contaminant which has been accepted for transportation by a common or contract carrier, the common carrier or other bona fide for-hire carrier acting as an independent contractor during the transportation. The shipper of the hazardous substance, pollutant or contaminant shall not be considered to have caused or contributed to a release during the transportation which resulted solely from circumstances or conditions beyond his control.
(iii) A hazardous substance, pollutant or contaminant which has been delivered by a common or contract carrier to a disposal or treatment facility, the disposal or treatment facility. The common or contract carrier shall not be considered to have caused or contributed to a release at the disposal or treatment facility which resulted solely from circumstances or conditions beyond his control.
(4) Pollutant or contaminant includes an element, substance, compound or mixture, including disease-causing agents, which, after release into the environment and upon exposure, ingestion, inhalation or assimilation into organisms, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformation, in those organisms or their offspring.
(5) Release means a spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment, but excludes:
(i) A release which results in exposure to persons solely within a workplace, with respect to a claim which the persons may assert against their employer.
(ii) Emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel or pipeline pumping station engine.
(iii) Release of source, byproduct or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954 [42 U.S.C. Section 2011 et seq.], if the release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under Section 2210 of Title 42, United States Code or a release of source, byproduct or special nuclear material from a processing site designated under Section 7912(a)(1) or Section 7942(a) of Title 42, United States Code.
(iv) The normal application of fertilizer.
(6) Remedy or remedial action means those actions consistent with a permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance, pollutant or contaminant into the environment, to prevent or minimize the release of hazardous substances, pollutants or contaminants so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches or ditches, clay cover, neutralization, clean-up of released hazardous substances, pollutants or contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, on-site treatment or incineration, provision of alternative water supplies and monitoring reasonably required to assure that these actions protect the public health and welfare and the environment. The term includes the costs of permanent relocation of residents and businesses and community facilities where the Board determines that, alone or in combination with other measures, the relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction or secure disposition off-site of hazardous substances, pollutants or contaminants or may be otherwise necessary to protect the public health or welfare. The term does not include off-site transportation of hazardous substances, pollutants or contaminants or the storage, treatment, destruction or secure disposition off-site unless the Board determines that these actions (i) are more cost-effective than other remedial actions or (ii) are necessary to protect public health or welfare or the environment from a present or potential risk which may be created by further exposure to the continued presence of the substances or materials.
(b) Action and administrative proceeding in case of release or threatened release. Whenever:
(1) A hazardous substance is released or there is a substantial threat of such a release into the environment, or
(2) There is a release or substantial threat of release into the environment of a pollutant or contaminant,
Which may present an imminent and substantial danger to the public health or welfare, caused by a violation of Chapter 362, Chapter 368 or Chapter 376, or of an attainment plan, a compliance plan, or of the rules or an order of the Board, the Director may remove or arrange for the removal of, and provide for remedial action relating to, the hazardous substance, pollutant or contaminant at any time, consistent with the National Contingency Plan published under Section 1321(c) of Title 33, United States Code or revised pursuant to Section 9605 of Title 42, United States Code. In every case, the Director shall determine whether the federal or State government is responding or will respond to the release or threat of release and, if this is the case, the Director may abate the proceeding until the federal or State response and, if it proceeds with remedial action, may file a claim with the appropriate federal or State agency.
(c) Information-gathering by Director. Whenever the Director is authorized to act pursuant to subsection (b) of this Section, he may undertake such investigations, monitoring, surveys, testing and other information-gathering as is deemed necessary or appropriate to identify the existence and extent of the release or threat thereof, the source and nature of the hazardous substances, pollutants or contaminants involved and the extent of danger to the public health or welfare or to the environment. In conducting these information-gathering activities, the Director shall be guided by the provisions of Section 360.108 with respect to entry on property.
(d) Removal and remedial actions. The Director and the Board shall select appropriate removal and remedial actions which are determined to be necessary and practicable and which provide for that cost-effective response which provides a balance between the need for protection of public health and welfare and the environment at the facility under consideration, and the availability of amounts from the Environmental Protection Fund to respond to other sites which present or may present a threat to public health or welfare or the environment, taking into consideration the need for immediate action.
(e) Administrative proceeding to recover expenditures. If the Director undertakes remedial or removal action in accordance with subsection (a)—(d) of this Section, he may, after providing 60 days notice to the responsible party, institute a separate proceeding before the Board to recover from the responsible party the expenses incurred by the City, for the removal or remedial actions including administrative costs associated with the removal or remedial action. After the hearing and an entry of the order of the Board, the responsible party may be ordered to pay the costs and expenses of all or a part of the removal or remedial work (including administrative costs associated with the removal or remedial action) undertaken by the City. Failure to either pay the costs and expenses as specified by the order of the Board, or to appeal that order to a court of competent jurisdiction, within 45 days of the date of the order shall subject the responsible party to a penalty of $1,000 for each day of nonpayment after 45 days. Monies received by the City pursuant to this Section shall be deposited in the Environmental Protection Fund.
(f) How proceedings treated; priority. A proceeding under this Section shall be treated as a proceeding on a complaint filed by the Director under Section 360.402. A proceeding begun under subsection (b) of this Section shall be given priority on the Board's docket and shall be heard at the earliest practicable time.
(g) Liability. Liability under this Section of an owner or operator or other responsible person for each release of a hazardous substance, pollutant or contaminant shall be for the expenditures incurred by the City, including administrative costs associated with the removal or remedial action. The order of the Board may make provision for the payment of the environmental damages or the administrative costs, or both, in installments over a specified period, but not exceeding five years. Nothing in this subsection shall be construed to relieve a person of responsibility for taking removal or remedial actions ordered by the Director. Nothing in this Section shall relieve a person from liability to other persons or to the City for matters not addressed herein. The remedies provided in this Section for collection of damages incurred and costs expended are not exclusive and are in addition to all other available remedies, including Chapter 112, City of Jacksonville Ordinance Code.
(h) Judicial action to recover costs. If the amount specified as remedial costs or as reasonable administrative costs is not paid within a reasonable time or according to the installment-payment schedule, as prescribed by the Board in its order, the Board may institute an action in the appropriate court to have the amount reduced to judgment. Moneys received by the City pursuant to this Section shall be deposited in the Environmental Protection Fund.
(i) Remittitur. The Board may remit to a violator all or part of a sum collected from the violator as reimbursement in whole or in part, or may accept as partial or complete satisfaction of a judgment entered against the violator, sums expended by the violator to restore the air or waters or plant or animal communities to their condition prior to the violation or to make capital improvements to the facilities which caused the violation so as to enable them to comply with Chapter 362, Chapter 368 or Chapter 376, an attainment plan or compliance plan or the rules or an order of the Board at the option of the violator.
(j) Independent and cumulative remedies. The remedies provided in this Section and in Section 360.502 are independent and cumulative.
(k) No private proceedings or actions. Nothing in this Section shall be construed to give the Board the authority or right to bring an administrative proceeding or action on behalf of any person.
(Ord. 84-674-684, § 1; Ord. 91-902-417, § 1)
