§ 23-46.2. Releases of hazardous substances.

(a)

Any hazardous substance which is released or allowed to accumulate or remain upon any property within the city, except as prescribed or permitted by governmental law or regulation, is hereby declared to constitute a public nuisance subject to the provisions of section 23-46.

(b)

Notwithstanding any other provision of law, in the event of a response by the Hazardous Materials Team of the Virginia Beach Fire Department to a release or accumulation of a hazardous substance in which such team undertakes measures to contain such substance or to abate or otherwise mitigate the effects thereof upon health or the environment, the responsible party shall be liable to the city for all costs of such response; provided, however, that in the event the city shall be eligible for reimbursement by the commonwealth or the United States, or an agency thereof, the responsible party shall be liable to the city only to the extent such response costs are not so reimbursable.

(c)

Monies recovered from responsible parties pursuant to subsection (b) shall be placed in a separate account in the general fund, and shall be used for the purpose of necessary replacement, purchase or upgrade of equipment used to contain, abate or otherwise mitigate releases of hazardous substances.

(d)

As used in this section:

(1)

Responsible party includes:

a.

The owner of such substance or his agent;

b.

The person transporting such substance at the time of its release;

c.

Any person whose acts or omissions cause the release or accumulation of a hazardous substance in violation of the provisions of this section; and

d.

In the event the identity or whereabouts of another responsible party cannot be determined despite the exercise of due diligence, the owner or occupant of the premises upon which a release or accumulation of a hazardous substance occurs; provided, however, that an owner or occupant of such premises who knowingly or negligently permits the release of a hazardous substance on such premises shall be deemed a responsible party notwithstanding the failure to determine the identity or whereabouts of any other responsible party.

(2)

Hazardous substance means any material or substance, which now or hereafter is designated, defined or characterized as hazardous by law or regulation of the commonwealth or the United States.

(3)

Release means spilling, leaking, emitting, discharging, leaching, disposing or otherwise escaping from a container approved by the United States Department of Transportation.

(e)

Costs recoverable by the city in connection with a response for which recovery is sought pursuant to this section shall be limited to the following:

(1)

Disposable materials and supplies acquired, consumed and expended specifically for the purpose of the response;

(2)

Compensation of employees for the time and efforts devoted specifically to the response not otherwise provided for in the operating budget;

(3)

Rental or leasing of equipment, such as protective equipment or clothing and scientific or technical equipment used specifically for the response;

(4)

Replacement costs for equipment which is contaminated beyond reuse or repair during, and as a result of, the response;

(5)

Decontamination of equipment contaminated during the response;

(6)

Special technical services specifically required for the response, such as costs associated with the time and efforts of technical experts and specialists not otherwise provided for by the city;

(7)

Other special services specifically required for the response, such as the relocation of utilities;

(8)

Laboratory costs for purposes of analyzing samples taken during the response; and

(9)

Costs associated with the services, supplies and equipment procured for a specific evacuation.

(f)

Nothing in this section shall be construed to impair, limit or otherwise alter the right of any responsible party to indemnity or contribution.

(Ord. No. 2207, 3-23-93; Ord. No. 3117, 2-9-10)

(Ord. No. 2207, 3-23-93; Ord. No. 3117, 2-9-10)