[8-27-2007 by Ord. No.
1279]
The City of Port Huron hereby finds that persons in and traveling
through the City historically have needed, caused or contributed to
the need for certain public safety and fire emergency services, which
needs and situations have negatively affected the health, environment,
and welfare of some City residents and real property located within
the City. In addition, the City has found that it has incurred costs
associated with the provision of these certain public safety and fire
emergency services. As a result of these determinations, the City
has adopted this article to allow the City to recover costs incurred
by the City in connection with the provision of these certain public
safety and fire emergency services.
[8-27-2007 by Ord. No.
1279]
For the purpose of their use in this article, the following
words and terms are defined. Any word or term not so defined shall
be considered to be defined in accordance with its common or standard
meaning.
The costs incurred by the City, including but not limited
to the actual labor and material costs to the City, whether or not
such services are provided by the City or by a third party independent
contractor on behalf of the City; service charges or interest; attorneys'
fees; litigation costs; and any costs, charges, fines, or penalties
to the City imposed by any local, state, or federal governmental entities.
The actual labor and material costs to the City include without limitation
employee wages; workers' compensation benefits; overtime; fringe
benefits; administrative overhead; costs of equipment; costs of equipment
operation, materials, excavation, transportation, and disposal; costs
of any contracted labor or materials; and any and all other labor
and material costs.
Those elements, substances, wastes, or their by-products,
which are contained in the list of hazardous substances adopted by
the United States Environmental Protection Agency (the "EPA"); or
which are contained in the list of toxic pollutants designated by
Congress or the EPA; or which are defined as hazardous, toxic, pollutant,
infectious, flammable, combustible, explosive, or radioactive by any
other federal, state, or local statute, law, ordinance, code, rule,
regulation, order, or decree regulating, relating to, or imposing
liability or standards of conduct concerning any hazardous, toxic,
or dangerous waste substance or material, as now or at any time hereafter
in effect. Specifically included without limitation as federal and
state laws, rules and regulations are MCLA § 324.20101 et
seq. (P.A. 1994, No. 451); the Federal Comprehensive Environmental
Response, Compensation and Liability Act, as amended, 42 U.S.C. § 9601
et seq.; the Federal Toxic Substances Control Act, as amended, 15
U.S.C. § 2601 et seq.; the Federal Resource Conservation
and Recovery Act, as amended, 42 U.S.C. § 6901 et seq.;
the Federal Hazardous Material Transportation Act, as amended; the
Federal Clean Air Act, as amended; the Federal Water Pollution Control
Act, as amended; or any similar or successor statute or law, or rules
and regulations of the EPA, or any other state or federal department,
board, or agency, or any other agency or governmental board or entity
having jurisdiction (collectively, the "environmental laws"). "Hazardous
materials" specifically include without limitation petroleum products,
automotive antifreeze, polychlorinated biphenyls and asbestos.
[6-26-2017 by Ord. No.
17-005]
Any self-propelled or towed vehicle designed or used on the
public highways to transport passengers or property as defined in
Section 79 of Act No. 300 of the Public Acts of 1949, as amended,
being MCL 257.79, which is required to be registered for use upon
the public streets and highways of this state under Act No. 300 of
the Public Acts of 1949, as amended, being MCL 257.1 to MCL 257.923,
or other means of conveyance including railroads. For the purposes
of this article, "motor vehicle" includes those vehicles owned by
the government of the United States and any and all trailers or appurtenances
to any motor vehicle.
Any actual or threatened spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, leaching, dumping, or
disposing into the environment, including, but not limited to, the
air, soil, groundwater and surface water.
In connection with a release of hazardous materials, "responsible
party" means any individual, firm, corporation, association, partnership,
commercial entity, consortium, joint venture, government entity or
any other legal entity that is responsible, in whole or in part, for
a release of hazardous materials, either actual or threatened; or
that is an owner, tenant, occupant, or party in control of property,
real or personal, onto which or from which there is a release of hazardous
materials; and the heirs, estates, assigns or successors to any such
entity.
[8-27-2007 by Ord. No.
1279; 2-25-2013 by Ord. No. 1347; 4-9-2018 by Ord. No. 18-005]
(a)
The Fire Chief, or his or her designee, shall determine the total
assessable costs and shall, in consultation with other City personnel
involved in responding to a hazardous materials incident, determine
whether to assess any, all or part of such costs against any of the
responsible parties.
(b)
For all incidents involving hazardous materials, a base fee of $500
may be assessed.
(c)
For any hazardous materials incident where total assessable costs
exceed the base fee, additional assessable costs associated with any
of the actions or services provided to halt, abate, remediate or remedy
any release of any hazardous materials and any liabilities resulting
therefrom may be jointly and severally assessed to any or all responsible
parties.
(d)
Any assessable costs which become known to the City following the
transmittal of a notice of assessment to the responsible party pursuant
to this article shall be billed in the same manner on a subsequent
statement to the responsible party.
(e)
The Fire Chief, or his or her designee, shall decide whether to assess
any, all, or part of the costs against any of the responsible parties.
In deciding whether to assess any, all, or part of the costs against
any of the responsible parties, the Fire Chief, or his or her designee,
shall consider the following factors:
(1)
The total costs incurred by the City, including, but not limited
to, materials, equipment, manpower, administration, assistance from
other sources, etc.;
(2)
The risks to the City, its residents, their property, or any
other people or property which result from the situation which caused
the City to incur assessable costs;
(3)
Any injuries or damage to people or property which resulted
from a situation which caused the City to incur assessable costs;
(4)
Whether the situation which caused the City to incur assessable
costs necessitated an evacuation;
(5)
Whether the situation which caused the City to incur assessable
costs resulted in any damage to the environment; and
(6)
Any other factors deemed relevant by the Fire Chief, or his
or her designee.
(f)
The Fire Chief, or his or her designee, may, after consideration of the factors listed above, allocate the costs among and between the responsible parties. Any costs not allocated among or between responsible parties shall be a joint and several liability of each responsible party assessed costs pursuant to § 24-42(c), regardless of whether that responsible party has any other legal liability apart from this article, and regardless of whether such person is at fault.
(g)
The Fire Chief, or his or her designee, shall direct that a statement
of costs assessed pursuant to this article be sent to all responsible
parties so assessed. Such statement shall be dated and sent first-class
United States mail, postage prepaid, to the last known address of
each responsible party.
(h)
The City may charge any costs assessed pursuant to this article to
the insurer of any responsible party. The submission of an invoice
for the assessed costs to an insurer does not in any way limit or
extinguish the liability of a responsible party for the costs assessed
pursuant to this article until such time as the assessed costs are
paid in full.
(i)
If the Fire Chief, or his or her designee, decides not to assess
all or part of its costs against any responsible party, such decision
shall not in any way extinguish or limit a responsible person's
liability to other parties for any costs or damages of any kind arising
from the release.
[8-27-2007 by Ord. No.
1279]
To the extent allowed by applicable law, the City may pursue
any responsible party under either or both Subsection (1) or Subsection
(2) below.
(1)
Any responsible party who fails to timely pay the costs assessed
pursuant to this article shall be considered in default. In the case
of default, the City Manager may authorize the City Attorney to commence
a civil action to recover the costs, plus a late payment penalty of
1% per month or part of a month during which the costs remain unpaid.
In addition to the costs, fees, or penalties provided in the article,
the City may recover reasonable attorney's fees, court costs,
court reporter's fees and other expenses of litigation by appropriate
action at law against persons found to be a responsible party.
(2)
All of the costs for services that have been rendered to real or
personal property in the City, or the owner of real or personal property
in the City, may be billed to the owner of the subject property, and
all invoices which remain unpaid for more than 30 days shall become
a lien on the property and assessed as a single lot assessment against
such property.
[8-27-2007 by Ord. No.
1279]
No officer, official, agent, employee, volunteer or member of
the City Council shall be personally liable for any damage that may
accrue to any person or property as a result of any act or decision
performed in the discharge of duties and responsibilities pursuant
to this article.
