[Adopted 6-12-2012 by Bill No. 1218]
A.
The purpose of this article is to provide for cost recovery for response
and recovery efforts related to hazardous substances and specialized
response 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. In providing
this service, the County will be protecting the citizens, property,
and employees of the Talbot 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.
B.
This article is enacted pursuant to the enabling powers conferred
by the Md. Code Ann., Local Government Art., §§ 10-202,
10-312, 10-317 and 10-328; Public Safety Article; Courts and Judicial
Proceedings Art., §§ 3-1101 through 3-1207; and the
Environment Article. This article is not intended to supersede state
responsibility and authority in the subject matters covered by this
article.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
For the purposes of this article, the following terms have the
meanings indicated:
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 substance.
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 of the Maryland Department of Environment; or
Gas, as defined by Md. Code Ann., Environment Art., § 14-102,
as amended; or
Oil, as defined by Md. Code Ann., Environment Art., § 14-102,
as amended; or
Motor fuel, as defined by Md. Code Ann., Business Regulation
Art., § 10-101, as amended; or
Low-level nuclear waste.
"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, injection, escaping, leaching, dumping, or disposing
into the environment of a hazardous substance, in any manner, whether
intentionally, accidentally, or negligently, including, but not limited
to, the abandonment or discarding of barrels, containers, and other
receptacles that contain a hazardous substance. "Release" does not
include a discharge permitted by state or federal law.
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.
All reasonable and necessary costs incurred to remove, contain,
or otherwise mitigate the effects of a hazardous substances incident,
including, but not limited to, the following:
Disposable materials and supplies acquired, consumed, and expended
specifically for the purpose of the response to the hazardous substance
release, at cost of replacement;
Rental or leasing of equipment used specifically for the response;
for example, protective equipment or clothing and scientific and technical
equipment;
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;
A surcharge related to the depletion of the useful life of any
equipment, materials or supplies with a limited useful life span;
Decontamination of equipment contaminated during the response;
Total compensation associated with the response, including,
but not limited to, benefits (FICA, insurance) for:
Special technical services specifically required for the response;
for example, costs associated with the time, equipment, and efforts
of technical experts or specialists;
Any tests to determine the physical, chemical, or biological
properties of the released items and monitoring the site and adjoining
areas;
Other special services, including, but not limited to, utilities
specifically required for the response;
Costs associated with the services, including housing and cost
of care, supplies, and equipment used to conduct an evacuation during
the response;
Costs associated with the disposal and/or storage of materials;
and
Indirect costs such as administrative and legal costs may be
included at a rate not to exceed 20% of the total direct costs claimed.
Any person who:
Is the owner or operator of a vehicle or a site containing a
hazardous substance;
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;
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; or
Accepts or accepted any hazardous substance for transport to
a disposal or treatment facility or any sites selected by the person.
"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.
One or more persons may each be a responsible person, and each
shall be jointly and severally liable for payment of all response
costs, in full.
A.
The County Council with the advice of the Department of Emergency
Services (herein "DES"), Emergency Management Division and the Talbot
County Fire Departments shall have the authority, from time to time,
by resolution or in the Annual Budget and Appropriation Ordinance,
to establish or modify rates to be charged for response costs under
this article. The rates to be applied are the rates in effect when
the response action occurs. Current rates, as amended from time to
time, shall be published on a schedule of fees.
B.
Initial rates for response costs shall be established by levels of
response as follows:
(1)
Level 1 Response – primary Fire Department and/or DES
response – incident involving ten-gallon spill or less without
exposure to waterway or drainage systems, including ditches.
(2)
Level 2 Response – primary Fire Department and/or DES
response – incident involving ten-gallon to twenty-five-gallon
spill without exposure to waterway or drainage systems, including
ditches.
(3)
Level 3 Response – primary Fire Department and/or DES
response – incident involving twenty-gallon to fifty-gallon
spill with or without exposure to waterway or drainage systems, including
ditches.
(4)
Level 4 Response – primary Fire Department and/or DES
response and decontamination unit and/or emergency response trailer
– more than 50 gallons spilled with or without exposure to waterway
or drainage systems, including ditches; any leak from a box truck.
truck trailer/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, above.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
C.
Personnel, vehicles, and equipment cost will be assessed in hourly
increments as follows for all time spent, including any part of an
hour, for any response:
A.
A responsible person who causes or permits a release of a hazardous
substance is jointly and severally liable for payment of all response
costs incurred by the County, including all response costs of response
action incurred by a volunteer fire and ambulance company for response
and remediation of such incident.
B.
There shall be a presumption that any person who owns and/or has
a present possessory interest in any private property on which any
release of a hazardous substance occurs has permitted or allowed the
release.
A.
The County DES, Special Operations Team, shall serve as the agent
for collecting invoices and supporting documentation. The County Department
of Emergency Services is responsible for billing the responsible person
for costs. County DES and fire departments, including volunteer fire
and/or ambulance companies dispatched to respond to a hazardous substance
release or an incident requiring the use of foam, are eligible to
submit invoices to Talbot County DES Special Operations Team for cost
reimbursement.
B.
County DES and volunteer fire and/or ambulance companies should submit
all invoices with supporting documentation identifying eligible costs
under this article to the County DES Special Operations Team within
five business days after the incident is closed. Invoices must include
sufficient documentation for cost reimbursement. This includes, without
limitation, copies of personnel certifications and on-scene duties
performed by all personnel involved in the incident, copies of time
sheets for specific personnel, copies of bills for materials, equipment,
and supplies procured or used, and such other documentation as may
be reasonably required. No volunteer fire and/or ambulance company
will receive reimbursement funds unless it has complied with the requirements
of this section.
C.
Submission of invoices to the Special Operations Team shall not obligate
the County to pay those costs until the County has approved such invoices
and received payment from the responsible person.
D.
The County DES shall submit one or a series of consolidated invoices
to the responsible person separately identifying the response action,
responding agency, and response costs. Invoices shall be payable to
"Talbot County, Maryland," in full within 60 days.
E.
On a quarterly basis, the County shall disburse funds collected from
responsible persons to responding companies that submitted approved
invoices and supporting documentation. In the event costs recovered
from responsible persons are insufficient to pay approved invoices
in full, disbursement among the companies shall be on a pro rata basis.
Response costs recovered from billings to responsible persons for
response action by Talbot County DES Special Operations Team shall
be used for the continued support of the special operations emergency
response program, including equipment, personnel, and other costs
associated with such program.
A.
The County may enforce these provisions by civil action in a court
of competent jurisdiction for the collection of any amounts due hereunder
plus administrative collection costs, attorneys' fees, or for any
other relief that may be appropriate.
B.
This section 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 article
in any way release the various parties, or limit them, from further
legal liability incurred as a result of hazardous substance cleanup
or abatement as defined under any local, state or federal rule or
regulation.
Whenever the requirements or provisions of this article are
in conflict with the requirements or provisions of any other law,
the more restrictive requirements shall apply.
