[HISTORY: Adopted by the County Council of Wicomico County 7-19-2005 by Bill No. 2005-6. Amendments noted where applicable.]
This chapter shall hereafter be referred to as the "Hazardous Materials Chapter."
The purpose of this chapter is to protect the citizens, property and employees of Wicomico County and the municipalities therein from the health hazards and other risks resulting from releases or incident to the use, storage, distribution, possession or transportation of hazardous substances, by providing for cost recovery for response and recovery efforts related to hazardous materials incidents; providing for liability for costs; and providing for collection and disbursement of funds for cost recovery, thereby supporting those agencies providing the necessary services.
This chapter is enacted pursuant to the enabling powers conferred by the Annotated Code of Maryland, Article 25A, § 5(A), (B), (J) and (T); Article 16A, § 7; Courts and Judicial Proceeding Article, §§ 3-1101 through 3-1207; and the Environment Article of the Code. This chapter is not intended to supersede state responsibility and authority in the subject matters covered by this chapter.
For the purposes of this chapter, the following definitions shall be used:
- Any buildings, structures, accessory structures, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, lagoon, impoundment, ditch, landfill, storage container and other stationary items which are located on a single site or a contiguous or adjacent site which are owned, occupied or operated by the same person or entity and which manufacture, produce, use, import, export, store, supply or distribute any hazardous material.
- A. Any substance designated pursuant to Section 9601(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) [42 U.S.C. § 9601(14)], as amended, and regulations enacted pursuant thereto, the Environmental Protection Agency or the Maryland Department of Environment; or
- B. Gas, as defined by Maryland Annotated Code, Natural Resources Article, § 6-102, as amended; or
- C. Oil, as defined by the Code, Natural Resources Article, § 6-102, as amended; or
- D. Motor vehicle fuel, as defined by the Code, Article 56, § 135, as amended; or
- E. Petroleum products, as defined by the Code, Article 56, § 135, as amended;
- F. Low-level nuclear waste.
- G. "Hazardous substance" does not include fly ash, bottom ash, slag, and other by-products generated from the combustion of fossil fuels.
- An individual, corporation, firm, association, partnership, joint venture, commercial entity, public utility, trust, estate, public or private institution, group, agency, political subdivision and any legal successor, representative or agency of the foregoing.
- Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment of a hazardous substance, including but not limited to the abandonment or discarding of barrels, containers and other receptacles containing a hazardous substance. "Release" does not include a discharge permitted by state or federal law.
- RESPONSE ACTION
- Those actions taken to prevent or minimize the release of hazardous substances, including but not limited to storage, confinement, neutralization, cleanup of hazardous substances or associated contaminated materials, recycling, destruction, perimeter protection, segregation of reactive wastes, repair or replacement of damaged or leaking containers, collection of leachate and runoff, on-site treatment or incineration, provision of alternate water supplies and any monitoring reasonably required to assure that such actions taken protect the public health and welfare and the environment.
- RESPONSE COST
- All reasonable and necessary costs incurred to remove, contain, or otherwise mitigate the effects of a hazardous material incident, including, but not limited to the following:
- A. Disposable materials and supplies acquired, consumed and expended specifically for the purpose of the response to the hazardous substance release, at actual cost of replacement.
- B. Rental or leasing of equipment used specifically for the response; for example, protective equipment or clothing and scientific and technical equipment.
- C. Replacement costs for equipment that is contaminated beyond reuse or repair during the response, including, by way of illustration and not limitation, self-contained breathing apparatus, protective equipment or clothing and scientific and technical equipment irretrievably contaminated during the response.
- D. A surcharge related to the depletion of the useful life of any equipment, materials or supplies with a limited useful life span.
- E. Decontamination of equipment contaminated during the response.
- F. Total compensation associated with the response, including but not limited to benefits (FICA, insurance) for:
- (1) Members of the hazardous material response team.
- (2) Members of volunteer fire and/or ambulance companies at an hourly rate based on certification levels, established by the County Council in executive session from time to time. Initially said rates shall be as follows:
- G. Special technical services specifically required for the response; for example, costs associated with the time, equipment and efforts of technical experts or specialists.
- H. Any tests to determine the physical, chemical or biological properties of the released items and monitoring the site and adjoining areas.
- I. Other special services, including but not limited to utilities specifically required for the response.
- J. Costs associated with the services, including housing and cost of care, supplies and equipment used to conduct an evacuation during the response.
- K. Costs associated with the disposal and/or storage of materials.
- L. Indirect costs such as administrative and legal costs may be included at a rate not to exceed 20% of the total direct costs claimed.
- A. Any person who:
- (1) Is the owner or operator of a vehicle or a site containing a hazardous substance.
- (2) At the time of the release of any controlled hazardous substance, was the operator or owner of any site at which the hazardous substance was released.
- (3) By contract, agreement or otherwise arranged for disposal or treatment or arranged with a transporter for transport for disposal or treatment of a hazardous substance owned or possessed by such person or by any other party or entity at any site owned or operated by another party or entity and containing such hazardous substances.
- (4) Accepts or accepted any hazardous substance for transport to a disposal or treatment facility or any sites selected by the person.
- B. "Responsible person" does not include a holder of a mortgage or deed of trust who acquires title through foreclosure to a site containing a hazardous substance as the result of a release.
The County Council, in executive session, with the advice of the Department of Emergency Services, Emergency Management Division and the Wicomico County Fire Chiefs' Association shall have the authority to establish rates to be charged for response costs under this chapter.
Initial costs shall be established by levels of response as follows:
Level 1 response, first due Fire Department, 10 gallons or less without exposure to waterway or drainage systems (including ditches): $250, plus materials and equipment used.
Level 2 response, first due Fire Department and hazmat unit with minimum of four technician level personnel, spill of 10 to 25 gallons without exposure to waterway of drainage systems (including ditches): $500, plus materials and equipment used.
Level 3 response, first due Fire Department, decontamination unit and hazmat unit with minimum of five to six technicians, spill of 20 to 50 gallons with or without exposure to waterway or drainage systems (including ditches): $1,500, plus materials and equipment used.
Level 4 response, first due Fire Department, Decontamination unit and hazmat unit with minimum staffing of 20 technicians, 50 gallons or more spilled with or without exposure to waterway or drainage (including ditches); any leak from a box truck; truck tanker overturned and or leaking; industrial toxic gas and or chemical leak; all rail car leaks; any incident that does not fit in either Levels 1 through 3: $2,000, plus materials and equipment used/up to four hours and $100 per part of hour thereafter.
Vehicle cost will assessed on an hourly basis, or any part thereof, as follows:
Engine, truck, rescue will be assessed at $150 per hour.
Hazmat unit will be assessed at $150 per hour.
Utility vehicles will be assessed at $50 per hour.
EMS unit will be assessed at $100 per hour (does not apply if used for transport to emergency facility, this is on scene use only).
Decontamination unit with be assessed at $200 per hour.
Any responsible party who causes a hazardous material incident, whether intentionally or negligently, shall be liable for the payment of all reasonable and necessary costs incurred by a government, including all costs of response action incurred by a volunteer fire and ambulance company, and all costs of response action incurred by a volunteer ambulance company for response and remediation of such an incident.
There shall be a presumption that any person who owns and/or has a present possessory interest in any private property on which any discharge or escape of a hazardous substance occurs has permitted or allowed the discharge or escape.
The Wicomico County Department of Emergency Services, Emergency Management Division, shall serve as the agent for collecting invoices and supporting documentation and billing the responsible party for costs. Fire departments, including volunteer fire and/or ambulance companies dispatched to respond to a hazardous material incident or responding according to the responsibilities set forth in the local emergency planning committee hazardous material response plan are eligible to submit bills.
An invoice and supporting documentation identifying eligible costs under this chapter shall be submitted to the Wicomico County Department of Emergency Services, Emergency Management Division within 10 calendar days after the incident occurs and is closed. Submitted invoices must include sufficient documentation for cost reimbursement (i.e., copy of personnel certifications and on-scene duties performed, for all personnel involved in the incident, will be required for billing, audits and justifications, copies of time sheets for specific personnel, copies of bills for materials, equipment and supplies procured or used, etc.) The acceptance of invoices by the Emergency Management Division shall not obligate the County to pay those costs until payment is received by Wicomico County from the responsible party.
[Amended 4-4-2006 by Bill No. 2006-4]
The Wicomico County Department of Emergency Services, Emergency Management Division, shall submit one or a series of consolidated invoices to the responsible party identifying agencies, agents or municipalities and their specific costs or reimbursements. The responsible party shall issue a certified check made payable to Wicomico County within 60 days of receiving a consolidated invoice.
Wicomico County shall disburse payments received to the responding companies who submitted invoices and supporting documentation on a quarterly basis. In the event payments received are insufficient to pay invoices in full, disbursement among the companies shall be on a pro rata basis. No fire department or volunteer fire and/or ambulance company will receive reimbursement funds unless it has complied with the requirements of this section.
The county may enforce these provisions by civil action in a amounts due hereunder, plus administrative collection costs, attorneys' fees, or for any other relief that may be appropriate. A certified copy of a judgment in favor of the county may be recorded in the public records and thereafter shall constitute a lien upon any real or personal property owned by such person(s) and is collectible in the same manner as the property tax may be collected under the Tax-Property Article.
This chapter shall not prohibit the county from pursuing any other remedy, whether civil or criminal, or from instituting any appropriate action or proceedings, including injunction in a court of competent jurisdiction, nor shall the recovery of expenses under this chapter in any way release the various parties, or limit them, from legal liability incurred as a result of hazardous material cleanup or abatement as defined under any local, state or federal rule or regulation.
Whenever the requirements or provisions of this chapter are in conflict with the requirements or provisions of any other law, the more restrictive requirements shall apply.