Ordinance for the Recovery of Response and Cleanup Costs for Hazardous Material Spills in Mitchell County
RESOLUTION FOR RECOVERY OF RESPONSE AND CLEANUP COSTS FOR HAZARDOUS MATERIAL SPILLS
WHEREAS, the County of Mitchell is a body politic established under the laws of the State of North Carolina for the representation of its citizens and residents; and
WHEREAS, North Carolina General Statutes § 143-215.82, in addition to North Carolina General Statute §153A-101, §153A-102, and §153A-121 et seq. provide for the establishment and enforcement of a County Hazardous Material Spill Clean-up and Response Ordinance; and
WHEREAS, it has become necessary to safeguard the citizens of Mitchell County by providing for the immediate containment and clean-up of hazardous material spills in order to promote the use and conservation of highways, lands, and streams for the education, pleasure, and enrichment of the residents of Mitchell County as a whole; and
WHEREAS, Mitchell County is the duly recognized governing body responsible for the protection of the land, air, water, natural resources, and environment of all lands within the boundaries of Mitchell County; and
WHEREAS, transport truck Fuel and Oil Spills and other hazardous material spills on our highways and lands pose a direct threat to the environment and health of residents through the contamination of soil and water by hazardous material releases; and
WHEREAS, it is appropriate and necessary for Mitchell County to enact Cleanup Ordinances and laws that will mitigate and prevent damages from transport truck Fuel and Oil spills, and in the event of a spill, assist and be reimbursed for the costs of the response and clean-up by the persons having control over the fuel, oil, or hazardous substances in any cleanup efforts.
WHEREAS, Mitchell County has held a duly advertised public hearing as to the proposed ordinance.
WHEREAS, the County Commission has determined that the adoption of this Resolution will further the goals and objectives of Mitchell County.
NOW THEREFORE be it resolved that the County Commission of the County of Mitchell does hereby establish this Ordinance for the Recovery of Response and Cleanup Costs for Hazardous Material Spills in Mitchell County as follows:
Section I. – Authority to Abate and Respond to Hazardous Materials Incidents.
- Authority to contain, control, abate, and clean up spills of hazardous materials and recover costs of clean-up and response to hazardous materials incidents is delegated to the Mitchell County Emergency Management Department.
- This Ordinance is adopted pursuant to the provisions of North Carolina General Statutes §153A-101, §153A-102, §153A-121, §143-215.82, and §143-215.94. Pursuant to these statutes, Mitchell County has the authority to contain, control, abate, and cleanup spills of hazardous materials and is authorized to recover all of the expenses and costs for the removal, abatement, and/or clean-up actions.
- The authority of the Emergency Management Department shall include controlling, containing, abating, and cleaning up spills of hazardous material emergencies in the county. The County Fire Marshal, Emergency Management Department, Volunteer Fire Department, EMS, and Mitchell County Rescue Squad have the authority to summarily remove, abate, or remedy hazardous material spills in the county that are dangerous or prejudicial to the public health and/or public safety.
- The expense of the removal, abatement, and/or clean-up action shall be the responsibility of and shall be paid by the person in control of the fuel, oil, or other hazardous substance that has spilled in accordance with North Carolina General Statute §143-215.94.
Section II. Purpose and Intent.
- Pursuant to the North Carolina state environmental policy act, the Mitchell County Board of Commissioners adopts this article establishing a county policy to encourage the wise and safe use of the county’s natural resources; to encourage public and governmental awareness of the environment, particularly concerning a hazardous waste spill, containing and clean-up management; and to require clean-up repayment responsibility from those persons having control over the fuel, oil, or other hazardous materials or substances that have spilled on the highway or lands and streams of Mitchell County.
- The intent of this Ordinance is to provide a mechanism for full repayment of all response and clean-up costs from the person or persons having control over the fuel, oil, or other hazardous materials or substances that have spilled on the highway or lands and streams of Mitchell County. More specifically, it is the intent of this Ordinance to require the person having control over the fuel, oil, or other hazardous substance to be primarily responsible for all response, containment, and spill clean-up costs regardless of the cause of the discharge or spill of the fuel, oil, or other hazardous materials or substances. It is not the intention of this ordinance to exercise jurisdiction over any matter as to which the United States government has exclusive jurisdiction, or in any wise contrary to any governing provision of state or federal law, and no provision of this ordinance shall be so construed.
Section III. Definitions.
- The following words, terms, and phrases, when used in this Ordinance, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:Hazardous Material means any substance or material that poses an unreasonable risk to the health, safety, and/or welfare of the public and all properties. Materials include but are not limited to fuel, oil, any element, compound, or combination thereof which is flammable, corrosive, etc. that may have a detrimental effect on both operating and emergency personnel, the public, equipment and/or the environment if released or spilled.Person Having Control over the Fuel, Oil, or other Hazardous Material means the person or persons driving the vehicle hauling the fuel, oil, or other hazardous material regardless of the cause of the spill of the fuel, oil, or other hazardous material, as well as the company by which they are employed or working.State Agency includes every department, agency, institution, public authority, board, commission, bureau, division, council, member of council of state, or officer of the North Carolina state government.
Section IV. Injunctions and Equitable Relief.
- Fees or charges for the clean-up repayment from those persons having control over the fuel, oil, or other hazardous materials or substances that have spilled on the highway or lands and streams of Mitchell County shall be due within 30 days of billing.
- Pursuant to the provisions of North Carolina General Statute §153A-123(d) and (e), the county shall be entitled to pursue an injunction or other appropriate equitable remedy to restrain any violation of this Ordinance or to require compliance with any provision of this Ordinance.
Section V. Prohibition on Discharge or Release of Hazardous Materials.
- No person, entity, or company shall engage in the transportation, storage, or disposal of any hazardous material which would necessitate a response and cleanup under the provisions of this Ordinance or any provision of state or federal law.
Section VI. Compliance with State and Federal Law.
- No person, entity, or company shall transport, store, or dispose of any hazardous material except in compliance with the requirements of state and federal laws and regulations.
- No person may transport hazardous materials without use of an escort vehicle as set forth in N.C. General Statute §20-196.4.
Section VII. Charges.
- The following charges shall apply for the response or spill clean-up costs of fuel, oil, or other hazardous material under this Ordinance:
- Engine or Tanker – $250 per hour
- Heavy Rescue – $250 per hour
- Aerial Device – $350 per hour
- Support Vehicles (Brush Truck, etc.) – $125 per hour
- Ambulance – $200 per hour
- Emergency Management Vehicle – $45 per hour
- Fire Marshall Vehicle – $45 per hour
- All responding personnel – 1.5 X hourly rate
- Materials used Replacement – Cost + 10%
- Materials damaged Replacement – Cost + 10%
- Mileage – Current Federal Rate
- In the event the Federal Emergency Management Agency (FEMA) sets a higher rate of reimbursement for response services, the higher of the two rates shall apply. Notwithstanding the foregoing, these fees may be amended by the Mitchell County Board of Commissioners from time to time upon the adoption of a fee schedule and shall be payable to Mitchell County.
Section VIII. Fines.
- In addition to reimbursement of expenses as set forth above related to a Hazardous Material Response, a violation of this Ordinance shall be subject to a civil penalty in the amount of $1,500.00 per occurrence.
- In the event it is determined that the violator acted negligently, willfully, or with reckless disregard for the requirements of this Ordinance, the violator shall be subject to a civil penalty in the amount of $15,000.00.
Section IX. Billing.
The County Emergency Management Director shall be responsible for all billing and collection of clean-up and response costs under this Ordinance.
Section X. Amendments.
The Mitchell County Board of County Commissioners shall have the authority to amend this ordinance at any time.
Section XI. Severability.
If any section, part or provision of this Ordinance is declared unconstitutional or invalid by a court of competent jurisdiction, then it is expressly provided and it is the intention of the Board of Commissioners in passing this Ordinance that its parts shall be severable and all other parts of the Ordinance shall not be affected thereby and they shall remain in full force and effect.
Section XII. Effective Date.
This Ordinance shall become effective upon its passage and publication according to law.
Adopted this the 10th day of July, 2023.
Steve Pitman, Chairman
Harley Masters, Vice-Chairman