AN ORDINANCE ENACTING REGULATIONS, PROHIBITIONS, COST RECOVERY FOR EMERGENCY AND/OR NON-EMERGENCY SERVICES AND APPEALS PROVISIONS FOR HAZARDOUS MATERIAL INCIDENTS
BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RICH HILL, MISSOURI, AS FOLLOWS:
SECTION 1 – Definitions
The following terms are defined as follows:
City: The City of Rich Hill, Missouri and/or any authorized representative of the City of Rich Hill.
Dangerous or Hazardous Substances or Materials: Any substance that is spilled, leaked or otherwise released from its container, which, in the determination of the fire chief or his authorized representative, is dangerous or harmful to:
- The environment;
- Human or animal life, health or safety;
- Is obnoxious by reason of odor; or
- Constitutes a danger or threat to the public health, safety or welfare, and shall include, but is not limited to, such substances as chemicals and gases, explosives, radioactive materials, petroleum or petroleum products or gases, poisons, etiologic (biologic) agents, flammables and corrosives.
Emergency Response Agency: A unit of local government, volunteer organization or other support agency including licensed hazardous waste contractors that provide one or more of the following services:
- firefighting services;
- emergency medical services;
- emergency medical treatment or transportation;
- hazardous materials response teams;
- emergency service, disaster response or civil defense services;
- public works or maintenance;
- police agencies (federal, state, local); or
- remediation, mitigation or disposal of hazardous materials by waste contractors.
Facility: Any building, structure, installation, equipment, pipe or pipeline, including but not limited to, any pipe into a sewer or publicly owned treatment works, well, pond, lagoon, impoundment, ditch, landfill, storage container, tank, motor vehicle, truck trailer, rolling stock or aircraft. Also, includes any site or area where hazardous material has been deposited, stored, disposed of, abandoned, placed or otherwise located.
Material Incident: A situation involving an actual, suspected or possible hazardous material for which the Fire Department or other Emergency Response Agency must respond in order to ensure the safety of persons, animals, environment or property.
Mutual Aid: Any action taken by the Fire Department or any public agency pursuant to an intergovernmental agreement.
Recoverable Expenses: All actual costs or expenses incurred by the City, including but not limited to, each of the following:
- Charges for each fire department vehicle, including but not limited to, pumpers, ladder trucks, tankers, rescue squads, brush units, command units and other vehicles including mutual aid companies. Hourly rates and fees for these charges can be found in Appendix (A) – An attached price guide provided by the Missouri Department of Public Safety, Division of Fire Safety to assist in determining an appropriate equipment usage cost rate.
- Replacement cost for equipment that is contaminated or damaged beyond reuse or repair such as, but not limited to, turn-out gear or self-contained breathing apparatus.
- All personnel-related expenses incurred by the City, including but not limited to, wages, salaries, fringe benefits, and insurance for full-time, part-time and paid per call personnel, overtime pay and related fringe benefit costs for hourly employees. These personnel-related expenses shall commence when the fire department begins responding to the incident and shall continue until all City personnel have concluded dealing with hazardous materials responsibilities relative to the incident.
- Expenses of decontaminating and cleaning equipment.
- Technical consulting services specifically required as a result of the incident, including but not limited to, technical experts or specialists not otherwise available to the City.
- Laboratory costs of analyzing samples taken during the incident.
- Costs of cleanup, storage or disposal of the released hazardous material.
- Medical and hospital expenses incurred as a result of the incident.
- Legal, engineering, accounting, billing, collection and other administrative expenses incurred as a result of the incident, including but not limited to, efforts to recover expenses pursuant to this Ordinance.
Release: Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing of a hazardous material into or on any land, air, water, well, stream, sewer or pipe so that the hazardous material or any other constituent thereof may enter the environment.
Remedial Action: Any action taken instead of, or in addition to, permanent removal actions to prevent or minimize the release of hazardous materials, to migrate or prevent a substantial present or potential hazard to human or animal health, property or the environment. Such actions include, but are not limited to, actions at the location:
- Releasing the hazardous material from storage or confinement;
- Perimeter protection using dikes, trenches, or ditches, clay cover, neutralization;
- Cleanup of released hazardous materials or contaminated materials;
- Recycling or reuse, diversion, destruction, segregation of leachate and runoff;
- Onsite treatment or incineration;
- Providing alternate water supplies; and/or
- Any monitoring reasonably required to assure protection for the public health and welfare of persons, animals, property and the environment.
Response: Any removal or remedial action to a materials incident or other incident.
Responsible Party or Person: Any individual or entity that participated in, or whose actions or inactions were a proximate cause of an incident, and any individual or entity that is an owner, tenant, occupant or holder of any interest in real estate, buildings, equipment or other real or personal property onto or from which hazardous materials were released.
Vessel: Any object used as a storage container.
SECTION 2 – Prohibited acts
No person shall cause, permit, allow or threaten the release of hazardous materials into the environment unless such release is in accordance with an appropriate permit granted by the Missouri Department of Natural Resources or Environmental Protection Agency or other state or federal agency having primary jurisdiction over the release and the release is in such place and manner that will not create a substantial present or potential hazard to human or animal health, property or the environment.
SECTION 3 – Response to prohibited acts
- The Fire Chief or his authorized representative shall respond to any release, attempted release or threatened release of hazardous materials within the District of the Rich Hill Fire Department or affecting the water supply, wells or sewage treatment works located or servicing the City or pursuant to any lawful intergovernmental agreement of which the City is a party. This authority includes, but is not limited to, remedial action and removal.
- The Fire Chief shall report any release, attempted release or threatened release of hazardous material to all appropriate federal, state and local public health, safety and emergency agencies within the 24 hours of any substantial release of hazardous materials.
- The Fire Chief shall relinquish his response authority at such time, if any, as the federal, state or local public health, safety or emergency agency having primary jurisdiction over the release, attempted release or threatened release has assumed the responsibility for response to the incident.
- During the time the response authority is vested in the Fire Chief, he shall utilize all available fire personnel and equipment and may, in his sole discretion, take such remedial or removal actions as he deems necessary or appropriate to respond to the incident.
- All responding personnel shall cooperate with and operate under the direction of the Fire Chief or his authorized representative or other person then exercising response authority until such time as the responding authority determines the response is complete or responsibility for response is assumed by the federal, state or local public health, safety or emergency agency having primary jurisdiction over the release, attempted release or threatened release.
- The Fire Chief shall coordinate and/or cooperate with federal, state or local public health, safety or emergency agencies involved in response to the release, attempted release or threatened release of hazardous materials.
SECTION 4 – Recovery of expenses
Any person who is liable for the release, attempted release or threatened release of a hazardous material or hazardous waste that fails without just or sufficient cause to pay for or provide removal or remedial action upon or in accordance with a notice and request of the City, or in accordance with any order of any court having jurisdiction on the matter, shall be liable to the City for any costs incurred by the City as a result of the failure to provide or take necessary removal or remedial action, together with the costs of any removal or remedial action taken by the City, including all attorneys’ fees and related legal costs incurred in connection therewith.
SECTION 5 – Defense
There shall be no liability for a person otherwise liable who can establish by a preponderance of the evidence that the release or substantial threat of release of a hazardous material and the damages resulting therefrom were caused solely by:
- An act of nature over which he or she had no control;
- An act of war; or
- Any combination of the foregoing.
SECTION 6 – Billing and Collection Procedures
- Within, but no later than, 60 days after the conclusion of a hazardous materials incident, the Rich Hill Fire Department shall submit an itemized list of all known recoverable expenses to the City Clerk, who shall prepare and send an invoice via certified mail, return receipt requested to all responsible parties for payment. The City invoice shall demand full payment within 30 days after receipt of invoice. Any additional expenses that become known to the City after mailing the first invoice shall be billed in the same manner to the responsible parties. The statement of costs shall include, but is not limited to the following:
- An explanation of why the costs were necessary and reasonable;
- An explanation of how the costs were not duplicative and did not include costs for normal services that otherwise would have been provided;
- The reasons why contractual services, if any, were utilized in response to the emergency situation.
- If payment is not received within 30 days, the City Clerk shall resubmit the detailed billing via certified mail, return receipt requested, along with a copy of this Ordinance and Missouri Revised Statute § 260.546.
- The City may apply to the Department of Natural Resources for reimbursement from the hazardous waste fund for the costs that the responsible party shall be liable if the City and/or fire department is able to demonstrate a need for immediate relief and believes it will not receive prompt payment. However, the City shall reimburse the Department for any payment it receives from the hazardous waste fund.
SECTION 7 – Appeal Process
- Any responsible party may appeal the amounts listed in an invoice not later than 30 days after the date the responsible party receives the first notice. The appeal shall be filed with the Director of the Natural Resources Department, with a copy of the appeal served on the City.
- The Director shall notify all parties of the appeal; the City shall provide the Director with all evidence necessary to make a determination of reasonable cleanup costs. The burden of proof is on the City and/or the fire department to document and justify the costs of cleanup.
- Within 60 days of notification of the appeal, the Director shall notify the parties of his or her decision. In this decision, the Director shall order the responsible party to pay those costs found to be reasonable and appropriate.
- The determination of the Director shall become final 30 days after receipt of the notice of his or her determination unless one of the involved parties files a petition for judicial review pursuant to Missouri Revised Statute Chapter 536.
All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed.
This ordinance shall be in force and affect from and after its passage and approval as provided by law.
First reading on this the 26th day of July 2016.
Second reading on this the 26th day of July 2016.
PASSED THIS 26th DAY OF JULY 2016.
Jennifer Perkey-Ewing, Mayor
Brittany Schenker, City Clerk
Ayes: Humble, Robb, Rich
Pilcher was absent
 See Missouri Revised Statute §§ 260.500 to 260.550 (as amended through 2008).