§ 29-25. Liabilities and defenses.

(a)

This section shall be construed consistent with CERCLA, 42 USC Section 9601, et seq., as amended and California Health and Safety Code, Division 20, Chapter 6.7 and Chapter 6.75 as amended.

(b)

The following described persons are considered "responsible persons" for the purposes of this chapter and shall be jointly and severally liable to the county for all costs incurred by it in taking any investigative, recovery or regulatory action or emergency response or action, in connection with an actual or threatened release of any hazardous material:

(1)

Any person whose negligent or willful act or omission proximately caused any actual or threatened disposal or release of a hazardous material;

(2)

Any person who owned or had dominion or control of any hazardous material at the time of such actual or threatened disposal or release without regard to fault or proximate cause;

(3)

Any person who owned or had dominion or control of any container which held any hazardous material at the time of, or immediately prior to any actual or threatened disposal or release without regard to fault or proximate cause;

(4)

Any "owner" as defined by this chapter, including, but not limited to, any owner of land on which a release of hazardous materials actually occurs or threatens to occur, any owner of a facility at which an actual or threatened release occurs, any owner of hazardous materials which are involved in an actual or threatened release;

(5)

Any "operator" as defined by this chapter, including, but not limited to, any person who operates a hazardous materials facility involved in an actual or threatened release of hazardous material, or any person with control over the operation or management of a hazardous materials facility involved in an actual or threatened release;

(6)

Any person who by contract arranged for the disposal of hazardous material at a site involved in an actual or threatened release of a hazardous material which was the subject of the contract;

(7)

Any person who accepts or accepted any hazardous material for transport to a disposal or treatment site selected by that person;

(8)

Any hazardous waste generator;

(9)

Any person who is a tenant, lessee, or sublessee of land on which an actual or threatened release of hazardous materials occurs where the person possesses dominion or control over the land.

(c)

Responsibility is strict and is not conditioned upon evidence of willfulness, negligence, fault, or proximate cause in causing or allowing such actual or threatened release of hazardous substances except as expressly provided in this chapter.

(d)

"Costs" under this article include, but are not limited to, the reasonable costs of equipment, personnel, laboratory fees, administrative costs, court costs, witness fees, and attorneys' fees.

(e)

The following constitute defenses to liability based on this section:

(1)

Defenses available to a "responsible party" pursuant to CERCLA, 42 USC Section 9601, et seq., as amended;

(2)

Defendant proves, by a preponderance of the evidence, the actual or threatened release was proximately caused by an act of God as defined under state or federal laws or regulations and that the defendant took reasonable precautions to avoid an actual or threatened release;

(3)

Defendant proves, by a preponderance of the evidence, the actual or threatened release was exclusively caused by an act of war;

(4)

Defendant is named as a responsible party solely by virtue of his or her ownership of land where an actual or threatened release occurred and defendant proves all of the following, by a preponderance of the evidence:

(i)

Defendant had no reason to know or suspect that an actual or threatened release of hazardous materials occurred or was reasonably likely to occur on the land,

(ii)

If the actual or threatened release occurred prior to defendant's purchase, defendant must prove, by a preponderance of the evidence, that defendant undertook adequate inquiry into the uses of the land consistent with good commercial practice, good customary practice, and which was reasonable under the circumstances, in order to ascertain whether or not hazardous materials were present on the land. In determining whether or not defendant undertook adequate inquiry, the following shall be taken into account:

(A)

The special knowledge or experience of defendant,

(B)

The relationship of any purchase price to the value of comparable uncontaminated real estate,

(C)

Commonly known or reasonable ascertainable information about the land,

(D)

Obviousness of presence or likely presence of hazardous materials,

(E)

Defendant's ability to detect the presence or likely presence of hazardous material by reasonable inquiry or inspection;

(5)

Where the hazardous material was placed on defendant's land subsequent to defendant's purchase of the land, and the defendant proves the following:

(i)

Neither the landowner nor the lessees of the landowner had knowledge of the placement, neither did the landowner nor the lessee of the landowner consent to the placement,

(ii)

The landowner did not acquiesce to the presence of hazardous materials on the land subsequent to placement. In determining whether or not defendant acquiesced to the presence of a hazardous material, the following shall be taken into account:

(A)

The landowner made reasonable inspections of the land,

(B)

The landowner had no reason to suspect a hazardous material was present,

(C)

The landowner did not know nor have reason to know a hazardous material was present,

(D)

The landowner took reasonable steps to cause the removal of the hazardous materials upon discovery.

(f)

If one (1) or more responsible persons assert that responsibility for an actual or threatened release is capable of apportionment among them, the burden of proof as to the apportionment is upon each such responsible person. In order to show responsibility for an actual or threatened release is capable of apportionment, a responsible person must show that each responsible person to a divisible harm and that it is reasonable, under the circumstances, to apportion responsibility. Nothing in this section shall affect the imposition of joint and several liability.

(Ord. No. 6050, § I, 11-5-2013)