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1989-09211/16/89 s � ORDINANCE NO. 89-92 AN ORDINANCE ADDING A NEW CHAPTER 8.48 HAZARDOUS SUBSTANCES REMOVAL AND ABATEMENT COSTS TO THE VILLAGE OF BUFFALO GROVE MUNICIPAL CODE WHEREAS, the Village of Buffalo Grove is a Home Rule Unit pursuant to the Illinois Constitution of 1970; and WHEREAS, incidents involving the actual or threatened release of hazardous substances into the environment are on the increase; and WHEREAS, the Village's emergency response to a hazardous substance incident may require the expenditure of costly materials which may be irreplaceable without financial assistance; and WHEREAS, the financial burden of removing or abating a hazardous substances incident is more equitably borne by those responsible for it or in control of the substance or the container, rather than by the citizens of Buffalo Grove as a whole. NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF BUFFALO GROVE, COOK AND LAKE COUNTIES. ILLINOIS: Section 1: There is hereby added to the Municipal Code of the Village of Buffalo Grove Chapter 8.48 which is to read as follows: of this Chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section: A. ABANDONMENT: The act of leaving a thing with the intent not to retain possession of or assert ownership or 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(s), vessel(s), and /or container(s) containing a hazardous substance that: 1. The vehicle(s), vessel(s), and /or container(s) has been left for more than two days unattended and unmoved; or 2. License plates or other identifying marks have been removed from the vehicle(s), vessel(s), and /or container(s); or 3. The vehicle(s), vessel(s), and /or container(s) has been damaged or is deteriorated so extensively that it has value only for junk or salvage; or 4. The owner or operator has been notified by a law enforcement agency to remove the vehicle(s) , vessel(s), and /or container(s) and it has not been removed within twenty -four hours after notification. B. CONTAINER: A receptacle used for the shipment of goods that meets one or more of the following: 1. Of permanent character and strong enough for repeated use. 2. A cargo container used to transport small quantities of materials (e.g. box, drum, carboy). 3. Specifically designed to facilitate the carriage of goods by one or more modes of transport without intermediate reloading. o • of NFPA classifications of sub - sections 1 through 4 does not preclude the Fire Chief from determining that the material is a hazard, given the totality of the particular facts and circumstances. E. HAZARDOUS SUBSTANCE INCIDENT: Any emergency circumstance involving the sudden release or threatened release of a hazardous substance which, in the judgment of an emergency response authority, whether said emergency response authority be the Village, a MABAS agreement member unit, or a federal or state agency or other local agency, threatens immediate and irreparable harm to the environment or the health, safety, or welfare of any individual other than individuals exposed to the risks associated with hazardous substances in the normal course of their employment. "Hazardous substance incident" includes those incidents of releasing or abandoning of a hazardous substance, whether or not such releasing or abandoning is found to threaten immediate and irreparable harm, but such term does not include any release of a hazardous substance authorized pursuant to any federal, state, or local law or regulation. F. PERSON: Any individual, public or private corporation, partnership, association, firm trust, or estate, the state or any department, institution, or agency thereof, any municipal corporation, county, city and county, or other political subdivision of the state, or any other legal entity whatsoever which is recognized by law as the subject of rights and duties. G. 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 (1) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons; (2) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine; (3) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are C. o • FIRE CHIEF: The Fire Chief of the Village of Buffalo Grove, or his authorized representative. D. HAZARDOUS SUBSTANCES: 1. Any material as designated pursuant to the federal "Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 USC 9601(14), as amended; or 2. Any substance, material, waste, or mixture designated as a hazardous material, waste, or substance according to 49 Code of Federal Regulations (CFR) or according to Ill.Rev.Stat. Ch. 111 -1/2 paras. 1300.14 and 1300.15, as amended, excluding highway route- controlled quantities of radioactive materials as defined in 49 CFR 173.403(1), excluding ores, the products from mining, milling, smelting, and similar processing of ores, and the wastes and tailings therefrom, and excluding special fireworks as defined in 49 CFR 173.88(d) when the aggregate amount of flash powder does not exceed fifty pounds; or 3. Any material which is listed on the list of Environmental Protection Agency pollutants, 40 CFR 401.15, as amended; or 4. Any material which is classified by the National Fire Protection Association (NFPA) as either a flammable liquid, a Class II combustible liquid, or a Class III A combustible liquid; or 5. Any material which has been determined by the party storing it, or having control of it, through testing or other objective means, to be likely to create a significant potential or actual hazard to public health, safety, or welfare or to the environment. This definition shall not establish a requirement to test for the purposes of this Chapter; or 6. Any material which has been 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 public health, safety, or welfare or to the environment. The fact that the material in question is not designated as a hazardous substance pursuant to sub - sections 1 through 5 of this definition or is excluded by the legislation o � defined in Atomic Energy Act of 1954, if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under Section 1870 of such Act; (4) the normal application of fertilizer; and (5) a release authorized pursuant to any federal, state or local law or regulation. H. VEHICLE: Any device which is capable of moving itself, or of being moved, from place to place upon wheels or endless tracks. The term includes, but is not limited to, any motor vehicle, trailer, or semi- trailer. I. VESSEL: A ship or other craft used in navigation; any structure which is made to float upon the water or which does float upon the water. J. REMOVE OR REMOVAL: The cleanup, containment, or removal of released hazardous substances from the environment, such actions as may be necessary to be taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water suppliers, temporary evacuation and housing of threatened individuals, and any emergency assistance which may be provided under The Illinois Emergency Services and Disaster Agency Act of 1975, (Ill.Rev.Stat., Ch. 127, par. 1101 et seq.), as amended, pursuant to the MABAS agreement. Section 8.48.020 - LIABILITY FOR HAZARDOUS SUBSTANCE INCIDENT REMOVAL OR ABATEMENT COSTS: A. The Fire Department is authorized to remove or abate the effects of any hazardous substance incident involving the actual or threatened release of hazardous material (1) upon or into property or facilities in the o • Village, (2) pursuant to any Mutual Aid Box Alarm System ( MABAS) agreement in effect, it being understood that such aid will be rendered outside the Village limits, or (3) outside the corporate and /or response limits where the health, welfare, and /or property of the Village and /or those people within its protection are endangered. B. The following described persons shall be jointly and severally liable (1) to the Village for the payment of all costs direct or indirect incurred by the Village as a result of such removal and /or abatement activity, and (2) to any member unit of the MABAS agreement rendering aid to the Village pursuant to said agreement. (1) The person or persons whose negligent, reckless, or willful act or omission proximately caused such release; and (2 ) The person or persons who owned or had custody or control of the hazardous substance at the time of such release, without regard to fault or proximate cause; and (3 ) The person or persons who owned or had custody of control of the container, transport vehicle, or transport vessel which held such hazardous substance at the time of, or immediately prior to, such release, without regard to fault or proximate cause. (4) Any person owning or in control of any real property from which a hazardous substance is or may be released. C. In the event that any person undertakes voluntarily or upon order of the Fire Chief, to remove or abate the effects of any actual or threatened hazardous substance release upon or into any property or facility in the Village, the Fire Chief may take such action as "is necessary to supervise or verify the adequacy of the removal or abatement. The person(s) described in subsection (B) (1) through (B) (4) shall be liable to the Village for all costs direct or indirect incurred as a result of such supervision or verification. Section 8.48.030 - REMOVAL OR ABATEMENT COSTS A. For purposes of this Chapter, costs incurred by the Village shall- include, but shall not be limited to, the following, whether incurred within the Village, or outside the Village limits as a result of rendering mutual aid pursuant to the MABAS agreement: actual o • labor cost of Village personnel, including benefits and administrative overhead; costs of consultants whose expertise is required to remove or abate the incident or to assess the nature and extent of damage done; cost of equipment operation; replacement cost of vehicles or equipment which, in the determination of the Fire Chief, is contaminated beyond reuse or repair; laboratory costs; costs of materials or equipment obtained directly by the Village; cost of any contract or mutual aid labor and materials; attorneys' fees incurred in collecting monies owed to the Village by liable parties. B. When the action to remove or abate the effects of a hazardous substance includes extinguishing a fire, the costs may only include the expenses, such as those set forth in Section 8.48.030.A., related to the hazardous substance and not any expense related to extinguishing the fire. C. Nothing contained in this Chapter shall be construed to change or impair any right of recovery of subrogation arising under any mutual aid agreement or any other ordinance, statute, or provision of law. No criminal or quasicriminal remedy for any wrongful action shall be excluded or impaired by this Chapter. D. The Director of Finance shall allow for a reasonable time for payment of the reimbursement amount and shall consider any written objections on the type and amount of expense. In the event that no payment or response to the request for reimbursement has been received within thirty days from the date of the invoice, the Director of Finance is hereby authorized to direct the Village Attorney to take appropriate legal action. E. A MABAS member unit rendering aid to the Village in a hazardous substances incident pursuant to the MABAS agreement shall have its own right of action under this Chapter for recovery of costs. Section 8.48.040 LIBERAL CONSTRUCTION: This Chapter shall be liberally construed to give effect to its purpose, which is to shift the burden of liability for the aforesaid removal or abatement costs from the citizens of Buffalo Grove to those responsible for the incident. Section 8.48.050 - SEVERABILITY: If any provision, clause, sentence, paragraph, section or part or this Chapter, or application thereof to any 0 person or circumstance, shall for any reason be adjudged by a court of competent jurisdiction to be unconstitutional or invalid, said judgment shall not affect, impair or invalidate the remainder of the Chapter and the application of such provision to other persons or circumstances, but shall be confined in its operation to the provision, clause, sentence, paragraph, section or part thereof directly involved in the controversy in which such judgment shall have been rendered and to the person or circumstances involved. It is hereby declared to be the legislative intent of the Corporate Authorities that this Chapter would have been adopted had such unconstitutional or invalid provisions, clause, sentence, paragraph, section or part thereof not been included. Section 2: This ordinance shall be in full force and effect from and after its passage, approval and publication. This ordinance may be published in pamphlet form. AYES: 5 - Marienthal, Reid, Shifrin, Mathias, O'Malley NAYES : 0 - None ABSENT: 1 - Glover PASSED: December 4 ff 1989. APPROVED: December 4 , 1989. PUBLISHED: December 5 ► 1989. ATTEST: `► r 1. �� L-Village Clerk APPROVED: Village Preside d VILLAGE OF BUFFALO GROOVE ORDINANCE NO. ADOPTED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OUFFALO GROVT6, r� 19�T THIS DAY OF { Published in pamphlet form by authority of the President and Board of Trustees of the Village of Buffalo Grove, Cook & Lake Counties, Illinois, this day of -, 1.9 Village Clerk By Deputy Villa de Clerk - 11/16/89 ORDINANCE NO. 89-92 AN ORDINANCE ADDING A NEW CHAPTER 8.48 HAZARDOUS SUBSTANCES REMOVAL AND ABATEMENT COSTS TO THE VILLAGE OF BUFFALO GROVE MUNICIPAL CODE WHEREAS, the Village of Buffalo Grove is a Home Rule Unit pursuant to the Illinois Constitution of 1970; and WHEREAS, incidents involving the actual or threatened release of hazardous substances into the environment are on the increase; and WHEREAS, the Village's emergency response to a hazardous substance incident may require the expenditure of costly materials which may be irreplaceable without financial assistance; and WHEREAS, the financial burden of removing or abating a hazardous substances incident is more equitably borne by those responsible for it or in control of the substance or the container, rather than by the citizens of Buffalo Grove as a whole. NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT -AND BOARD OF TRUSTEES OF THE VILLAGE OF BUFFALO GROVE, COOK AND LAKE COUNTIES, ILLINOIS: Section 1: There is hereby added to the Municipal Code of the Village of Buffalo Grove Chapter 8.48 which is to read as follows: �d T a, s n CHAPTER 8.48 HAZARDOUS SUBSTANCES REMOVAL AND ABATEMENT COSTS Section 8.48.010 - Definitions. For the. purposes: of this Chapter,, the following words and phrases shall have the meanings respectively ascribed to them by this section: A. ABANDONMENT: The act of leaving a thing with the intent not to retain possession of or assert ownership or 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(s), vessel(s), and /or container(s) containing a hazardous substance that: 1. The vehicle(s), vessel(s), and /or container(s) has been left for more than two days unattended and unmoved; or 2. License plates or other identifying marks have been removed from the vehicle(s), vessel(s), and /or container(s); or 3. The vehicle(s), vessel(s), and /or container(s) has been damaged or-is deteriorated so extensively that it has value only for junk or salvage; or 4. The owner or operator has been notified by a law enforcement agency to remove the vehicle(s), vessel(s), and /or container(s) and it has not been ,removed within twenty -four hours after notification. B. CONTAINER: \ A receptacle used for the shipment of goods that meets one or more of the following: ` 1. Of permanent character and strong enough for repeated use. 2. A cargo container used to transport small quantities of materials (e.g. box, drum, carboy). 3. Specifically designed to facilitate the carriage of goods by one or more modes of transport without intermediate reloading. C. FIRE CHIEF: The Fire Chief of the Village of Buffalo Grove, or his authorized representative. D. HAZARDOUS SUBSTANCES: 1: Any material as designated pursuant to the federal "Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 USC 9601(14), as amended; or 2. Any substance, material, waste, or mixture designated as a hazardous material, waste, or substance according to 49 Code of Federal Regulations (CFR) or according to Ill.Rev.Stat. Ch. 111 -1/2 paras. 1300.14 and 1300.15, as amended, excluding highway route- controlled quantities of radioactive materials as defined in 49 CFR 173.403(1), excluding ores, the products from mining, milling, smelting, and similar processing of ores, and the wastes and tailings therefrom, and excluding special fireworks as defined in 49 CFR 173.88(d) when the aggregate amount of , flash powder does not exceed fifty pounds; or 3. Any material which is listed on the list of Environmental Protection Agency pollutants, 40 CFR 401.15, as amended; or 4. Any material which is classified by the National Fire Protection Association (NFPA) as either a flammable liquid, a Class II combustible liquid, or a Class III A combustible liquid; or 5. Any material which has been determined by the party `storing it, or having control of it, through testing or other objective means, to be likely to create a significant potential or actual hazard to public health, safety, or welfare or to the environment. This definition shall not establish a requirement to test for the purposes of this Chapter; or 6. Any material which has been 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 public health, safety, or welfare or to the environment. The fact that the material in question is not designated as a hazardous substance pursuant to sub- sections 1 through 5 of this definition or is excluded by the legislation of NFPA classifications of sub- sections 1 through 4 does not preclude the Fire Chief from determining that the material is a hazard, given the totality of the particular facts and circumstances. E. HAZARDOUS SUBSTANCE INCIDENT: Any emergency circumstance involving the sudden release or ..threatened release of a hazardous substance which, in the judgment of an emergency response authority, whether said emergency response authority be the Village, a MABAS agreement member unit, or a federal or state agency or other local agency, threatens immediate and irreparable harm to the environment or the health, safety, or welfare of any individual other than individuals exposed to the risks associated with hazardous substances in the normal course of their employment "Hazardous substance incident" includes those incidents of.releasing or abandoning of a hazardous substance, whether or not such releasing or abandoning is found to threaten immediate and irreparable harm, but such term does not include any release of a hazardous substance authorized pursuant to any federal, state, or local law.or regulation. F. PERSON: Any individual, public or private corporation, partnership, association, firm trust, or estate, the state or any department, institution, or agency thereof, any municipal corporation, county, city and county, or other political subdivision of the state, or any other legal entity whatsoever which is recognized by law as the subject of rights and duties. G. 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 (1) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons; (2) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine; (3) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are A. The Fire Department is authorized to remove or abate the effects of any hazardous substance incident involving the actual or threatened release of hazardous material (1) upon or into property or facilities in the C defined in Atomic Energy Act of 1954, if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under Section 1870 of such - Act; (4) the normal application of fertilizer; and (5) a release authorized pursuant to any federal, state or local law or regulation. H. VEHICLE: Any device which is capable of moving itself, or of being moved, from place to place upon wheels or endless tracks. The term includes, but is not limited to, any motor vehicle, trailer, or semi- trailer. I. VESSEL: . A ship or other craft used in navigation; any structure which is made to float upon the water or which does float upon the water. J. REMOVE OR REMOVAL: The cleanup, containment, or removal of released hazardous substances from the environment, such actions as may be necessary to be taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access, - provision of alternative water suppliers, temporary evacuation and housing of threatened individuals, and any emergency assistance which may be provided under The Illinois Emergency Services and Disaster Agency Act of 1975, (Ill.Rev.Stat., Ch. 127, par. 1101 et seq.), as amended, pursuant to the MABAS agreement. Section 8.48.020 - LIABILITY FOR HAZARDOUS SUBSTANCE INCIDENT REMOVAL OR ABATEMENT COSTS: A. The Fire Department is authorized to remove or abate the effects of any hazardous substance incident involving the actual or threatened release of hazardous material (1) upon or into property or facilities in the Village, (2) pursuant to any Mutual Aid Box Alarm System (MABAS) agreement in effect, it being understood that such. aid will be rendered outside the Village limits, or (3) outside the corporate and /or response limits where the health, welfare, and.. /or property of the Village and /or those people within its protection are endangered. B.. The following- described persons shall be jointly and severally liable (1) to the Village for the payment of all costs direct or indirect incurred by the Village as a result of such removal and /or abatement activity, and (2) to any member unit of the MABAS agreement rendering aid to the Village pursuant to said agreement. (1) `The person or persons whose negligent, reckless., or willful act or omission proximately caused such release; and (2) The person or persons who owned'or had custody or control of the hazardous substance at the time of such release, without regard to fault or proximate cause; and (3) The person or persons who owned or had custody of control of the container, transport vehicle, or transport vessel which held such hazardous substance at the time of, or immediately prior:to, such release, without regard to fault or proximate cause. (4) Any person owning or in control of any real property from which a hazardous substance is or may be released. C. In the event that any person undertakes voluntarily or upon order of the Fire Chief, to remove or abate the effects of:any actual or threatened hazardous substance release upon or into any property or facility in the Village, the Fire Chief may take.such action as "is necessary to supervise or verify the adequacy of the removal or abatement. The person(s) described in subsection (B) (1) through (B) (4) shall be liable to the Village for all costs direct or indirect incurred as a result of such supervision or verification. Section 8.48.030 - REMOVAL OR ABATEMENT COSTS A. For purposes of this Chapter, costs incurred by the Village shall include, but shall not be limited to, the following, whether incurred within the Village, or outside the Village limits as a result of rendering mutual aid pursuant to the MABAS agreement: actual labor cost of Village personnel includi.ng'benefits and administrative overhead; costs of consultants whose expertise is required to remove or abate the incident or to assess the nature and extent of damage done; cost of equipment operation; replacement cost of vehicles or equipment which, in the determination of the Fire Chief, is contaminated beyond reuse or repair; laboratory costs; costs of materials or equipment obtained directly by the Village; cost of any contract or mutual aid labor and materials; attorneys' fees incurred in collecting monies owed to the Village by liable parties. B. When the action to remove or abate the effects of a hazardous substance includes extinguishing a fire, the costs may only include the expenses, such as those set forth in Section 8.48.030.A., related to the hazardous substance and not any expense related to extinguishing the fire. C. Nothing contained in this Chapter shall be construed to change or impair any right of recovery of "subrogation arising under any mutual aid agreement or any other ordinance, statute, or provision of law. No criminal or quasicriminal remedy for _any wrongful action shall be excluded or impaired by this Chapter. D. The Director of Finance shall allow for a reasonable time for payment of the reimbursement amount and shall consider any written objections on the type and amount of expense. In the event that no payment or response to the request for reimbursement has been received within thirty days from the date of the invoice, the Director of Finance is hereby authorized to direct the Village Attorney to take appropriate legal action. E. A MABAS member unit rendering aid to the Village in a hazardous substances incident pursuant to the MABAS agreement shall have its own right of action under this Chapter for recovery of costs. ' Section 8.48.040 - LIBERAL CONSTRUCTION: This Chapter shall be liberally _construed to give effect to its purpose, which is to shift the burden of liability for the aforesaid removal or abatement costs from the citizens of Buffalo Grove to those responsible for the incident. Section 8.48.050 - SEVERABILITY: If any provision, clause, sentence, paragraph, section or part or this Chapter, or application thereof to any person or circumstance, shall for any reason be adjudged by a = court of competent jurisdiction to be unconstitutional or' invalid, said judgment shall not affect, impair or invalidate the remainder of the Chapter and the application of such provision to other persons or. circumstances, but shall be confined in its operation to the provision, clause, sentence, paragraph, section or part thereof directly involved in the controversy in which such judgment shall have been rendered and to the person or circumstances involved. It is hereby declared to be -the legislative intent of the.Corporate Authorities that this Chapter would have been adopted had such unconstitutional or invalid provisions, clause, sentence, paragraph, section or part thereof not been included. Section 2: This ordinance shall be . in full force and effect from and after its passage,_ approval and publication. This ordinance may be published in pamphlet form. AYES: - 5 Marienthal, Reid, Shifrin, Mathias, O'Malley NAYES : 0 - None ABSENT: 1 Glover PASSED: December 4 , 1989. APPROVED: December 4 , 1989. PUBLISHED: December 5 , 1989. APPROVED Village Preside ATTEST :' ,nal &uLLf-Lm1 ' L-Village Clerk