2.55.020 Release or threatened release of hazardous materials – Recovery of expenses.
(a) Purpose. For the purpose of promoting the public health, safety and welfare, it is hereby declared to be in the public interest to enact a means for recovery, through civil suit if required, of the recoverable expenses incurred in taking an emergency action to save life, prevent suffering or disability or to protect and save property.
(b) Definitions. As used in this section:
“Emergency action” means all of the activities conducted in order to prevent or mitigate injury to human health or the environment from a release or threatened release of hazardous materials into or upon the environment.
“Hazardous materials” means waste, or a combination of wastes, chemicals, or substances which, because of their quantity, concentration, or physical, chemical, biological, or infectious characteristics, cause or significantly contribute to an increase in mortality or serious personal injury; or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or released.
“Person” means and includes any individual, corporation, association, partnership, firm, trustee, or legal representative.
“Recoverable expenses” means those expenses that are reasonable, necessary and allocable to the emergency action. “Recoverable expenses” shall not include normal expenditures that are incurred in the course of providing what are traditionally local services and responsibilities, such as routine firefighting. Expenses allowable for recovery may include, but are not limited to:
(1) Disposable materials and supplies acquired, consumed and expended for the emergency action.
(2) Compensation of employees for the time and efforts devoted specifically to the emergency action.
(3) Rental or leasing of equipment used for the emergency action (e.g., protective equipment or clothing, scientific and technical equipment).
(4) Replacement, repair and/or cleaning costs for equipment utilized in the emergency action.
(5) Special technical services utilized in the response (e.g., costs associated with the time and efforts of technical experts or specialists not otherwise provided for by the governmental entity).
(6) Other special services utilized in the emergency action.
(7) Laboratory costs for purposes of analyzing samples taken during the emergency action.
(8) Any costs of cleanup, storage or disposal of the released material.
(9) Costs associated with the services, supplies and equipment procured for an evacuation.
(10) Medical expenses incurred as a result of response activities.
(11) Legal expenses that may be incurred as a result of the emergency action, including efforts to recover expenses pursuant to this section.
“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into or upon the environment.
“Threatened release” means any imminent, impending, or potential release which causes the City to take emergency action.
(c) Liability. The following persons shall be jointly and severally liable to the City for the recoverable expenses incurred by the City during the emergency action:
(1) The person or persons whose willful or negligent acts, or omission thereof, were the proximate cause of the release or threatened release of any hazardous materials,
(2) The person or persons who owned, controlled, or were in custody of the hazardous materials at the time of the release or threatened release, with no regard to fault or proximate cause,
(3) The person or persons who owned, controlled, or were in custody of the container which held the hazardous materials released, or threatened to be released, at the time of the release or threatened release, with no regard to fault or proximate cause.
(d) Recovery of Expense.
(1) Each department involved in an emergency action shall keep a detailed record of its recoverable expenses resulting from the emergency action then, promptly after completion of the emergency action, certify any such recoverable expenses to the appropriate legal counsel with a corresponding request that the recovery process be initiated against any and all persons responsible for the emergency action.
(2) Not less than 30 days before filing a civil action, legal counsel shall submit a written, itemized claim for the total certified expenses incurred by the City responding to the emergency action to the responsible party with a written notice that unless the amounts are paid in full to the City within 30 days after the date of the mailing of the claim and notice, legal counsel will file a civil action for the stated amount. Moneys recovered under this section shall be credited to the appropriate funds of the City.
(e) Conflicting Ordinances. Any other resolution or ordinance in conflict with this section is hereby repealed. (Ord. 20216 § 2, 10-15-19.)
State Law References:Immunity from liability for assisting in cleanup of hazardous waste spills, discharges, etc., K.S.A. 65-3471 et seq.