HAZ-MAT Cost Recovery Legislation Sent to Governor

[Bnechis 3,961]

ASSOCIATION OF FIRE CHIEFS PUBLIC RELATIONS COMMITTEE.

Sep 20, 2011

0911-38

In June of this year, the Hazardous Materials Reimbursement bill on FASNY's Legislative Scorecard passed both houses of the NYS Legislature. This bill has now been delivered to the Governor for his consideration. The bill (S.5444/A.7672), sponsored by Senator Zeldin and Assemblyman Sweeney, permits reimbursement for costs associated with the clean up of hazardous materials spills.

Sounds good so far, but look at these excerpts from the legislation:

"An act to amend the environmental conservation law, in relation to providing reimbursement to fire companies for costs associated with responding to releases of hazardous materials"

"Reimbursement shall be limited to expendable materials in the response, and be limited to $10,000."

My link

This legislation has been proposed by FASNY each legislative session since at least 2004

Why is this BAD Legislation?

1) Currently Federal law has allowed full cost recovery for the last 31 years.

TITLE 42--THE PUBLIC HEALTH AND WELFARE

CHAPTER 103--COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY (CERCLA)has allowed billing since December 1980.

Was ammended by Superfund Amendments & Reauthorization Act (SARA) in 1986.

2) Why limit it to "expendable materials" and $10,000..............The Federal Law says ALL Costs associated.

So if a FD responds and gets 10 sets of turnouts contaminated (and the product cant be deconned) You get $10,000 and your tax payers get to pay the other $25,000 - $40,000. What if you lose a rig?

The spiller is required to have insurance, let them pay for their mistake.

Note: We have had bills that were well over $100,000 and without billing many depts can not maintain their capabilities.

Please advise the Governor's office if you think he should veto this bill by calling 518-474-8390 or email:

NYS Governor Contact Page

Thank You

[Monty 35]

ASSOCIATION OF FIRE CHIEFS PUBLIC RELATIONS COMMITTEE.

Sep 20, 2011

0911-38

In June of this year, the Hazardous Materials Reimbursement bill on FASNY's Legislative Scorecard passed both houses of the NYS Legislature. This bill has now been delivered to the Governor for his consideration. The bill (S.5444/A.7672), sponsored by Senator Zeldin and Assemblyman Sweeney, permits reimbursement for costs associated with the clean up of hazardous materials spills.

Sounds good so far, but look at these excerpts from the legislation:

"An act to amend the environmental conservation law, in relation to providing reimbursement to fire companies for costs associated with responding to releases of hazardous materials"

"Reimbursement shall be limited to expendable materials in the response, and be limited to $10,000."

My link

This legislation has been proposed by FASNY each legislative session since at least 2004

Why is this BAD Legislation?

1) Currently Federal law has allowed full cost recovery for the last 31 years.

TITLE 42--THE PUBLIC HEALTH AND WELFARE

CHAPTER 103--COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY (CERCLA)has allowed billing since December 1980.

Was ammended by Superfund Amendments & Reauthorization Act (SARA) in 1986.

2) Why limit it to "expendable materials" and $10,000..............The Federal Law says ALL Costs associated.

So if a FD responds and gets 10 sets of turnouts contaminated (and the product cant be deconned) You get $10,000 and your tax payers get to pay the other $25,000 - $40,000. What if you lose a rig?

The spiller is required to have insurance, let them pay for their mistake.

Note: We have had bills that were well over $100,000 and without billing many depts can not maintain their capabilities.

Please advise the Governor's office if you think he should veto this bill by calling 518-474-8390 or email:

NYS Governor Contact Page

Thank You

Thanks, I got a mailing yesterday about this bill. I wondered why we needed this when I thought the federal laws covered this.

Is this big business driving this I wonder? What makes it better than the existing legislation?

[Bnechis 3,961]

Is this big business driving this I wonder?

I do not think so, I think its FASNY (according to them its their idea)

What makes it better than the existing legislation?

I suspect they dont know that their is a federal law covering this.

[helicopper 1,050]

Any idea why FASNY proposed something more restrictive/limiting than the existing Federal legislation?

[JFLYNN 681]

Any idea why FASNY proposed something more restrictive/limiting than the existing Federal legislation?

Probably the same reason they opposed a NYS law mandating bailout ropes, maximum age for new hires, and stricter minimum training standards....etc....

[JohnnyOV 2]

I thought that NYS Fire Districts were not allowed to bill for associated costs with HAZMAT clean up under the current federal regulations, hence the reason for the state bill.

At least that's the way it's been explained to me

Edit:

After a little searching, Federal regulation - 40 CFR 310.5 states that:

Am I eligible for reimbursement?

If you are the governing body of a county, parish, municipality, city, town, township, federally-recognized Indian tribe or general purpose unit of local government, you are eligible for reimbursement. This does not include special purpose districts.

- http://ecfr.gpoacces...7.2.5.1&idno=40

Isn't a NYS Fire District a "special purpose district?"

Edited September 21, 2011 by JohnnyOV

[helicopper 1,050]

I thought that NYS Fire Districts were not allowed to bill for associated costs with HAZMAT clean up under the current federal regulations, hence the reason for the state bill.

At least that's the way it's been explained to me

Edit:

After a little searching, Federal regulation - 40 CFR 310.5 states that:

- http://ecfr.gpoacces...7.2.5.1&idno=40

Isn't a NYS Fire District a "special purpose district?"

If that is the case why not mirror the federal legislation instead of limiting it to consumable supplies and a $10,000 limit?

Don't fire districts have contracts with the towns they support? Couldn't it be spelled out in the contract that the town would bill under the federal legislation?

How have FD's been reimbursed during the past 30 years?

[JohnnyOV 2]

If that is the case why not mirror the federal legislation instead of limiting it to consumable supplies and a $10,000 limit?

I wont venture a guess on the associated reimbursement amount, so I'll leave that alone

Don't fire districts have contracts with the towns they support? Couldn't it be spelled out in the contract that the town would bill under the federal legislation?

In NYS, Towns by law are not allowed to provide the service of fire protection, or have any say in the finance fire protection. The only interaction a Town and a District have is when the Districts tell the town this is how much taxes will be and when the Town collects the Districts Tax and sends it over to them. I'm sure that if there was some type of loophole to have the town contract this, it would have been found by now.

How have FD's been reimbursed during the past 30 years?

I believe our district has never been reimbursed for any Hazmat call we have ever been on.

On a side note, I'm reading that the EPA will only reimburse a government agency up to $25,000 for practices used above the funding that the local agencies normally provide for Hazardous materials response, not the full cost of the response should it exceed $25,000.

Bnechis, which agency reimburses you past the $25,000 mark?

This is all from the Code of Federal Regulations website: http://ecfr.gpoacces...:28.0.1.1.7.2.5

§ 310.8 Can EPA reimburse the entire cost of my response?

Possibly not. EPA can only reimburse you for temporary emergency measures you take in response to releases of hazardous substances, pollutants, or contaminants. The statute allows reimbursement for only certain costs, and by statute, the total amount of the reimbursement may not exceed $25,000 for a single response.

§ 310.11 What costs are allowable?

top(a) Reimbursement under this part does NOT supplant funds you normally provide for emergency response. Allowable costs are only those necessary for you to respond effectively to a specific incident that is beyond what you might normally respond to.

( Examples of allowable costs are:

(1) Disposable materials and supplies you acquired and used to respond to the specific incident;

(2) Payment of unbudgeted wages for employees responding to the specific incident (for example, overtime pay for response personnel);

(3) Rental or leasing of equipment you used to respond to the specific incident (for example, protective equipment or clothing, scientific and technical equipment) (Note: rental costs are only allowable for the duration of your response; once you complete the response to the specific incident, further rental costs are NOT allowable);

(4) Replacement costs for equipment you own that is contaminated or damaged beyond reuse or repair, if you can demonstrate that the equipment is a total loss and that the loss occurred during the response (for example, self-contained breathing apparatus irretrievably contaminated during the response);

(5) Decontamination of equipment contaminated during the response;

(6) Special technical services specifically required for the response (for example, costs associated with the time and efforts of technical experts/specialists that are not on your staff);

(7) Other special services specifically required for the response (for example, utilities);

(8) Laboratory costs of analyzing samples that you took during the response;

(9) Evacuation costs associated with the services, supplies, and equipment that you procured for a specific evacuation; and

(10) Containerization or packaging cost and transportation and disposal of hazardous wastes.

© To be allowable, costs must:

(1) NOT be higher than what a careful person would spend for similar products or services in your area; and

(2) Be consistent with CERCLA and the federal cost principles outlined in OMB Circular A–87, "Cost Principles for State and Local Governments." (Copies of the circular are available from the Office of Administration, Publications Office, New Executive Office Building, 725 17th Street, NW., Room 2200, Washington, DC 20503.)

(d) EPA will make final determinations on whether your costs are reasonable

§ 310.12 What costs are NOT allowable?

(1) Routine firefighting;(a) Costs that are NOT allowable are expenditures you incur in providing what are traditionally local services and responsibilities. Examples include:

(2) Preparing contingency plans;

(3) Training; and

(4) Response drills and exercises.

( Costs that are NOT allowable also include items such as supplies, equipment, and services that you routinely purchase to maintain your ability to respond effectively to hazardous releases when they occur. Examples of other costs that are NOT allowable are:

(1) Purchase or routine maintenance of durable equipment expected to last one year or more, except when contaminated or damaged as described in §310.11((4) and ((5);

(2) Materials and supplies you did NOT purchase specifically for the response;

(3) Rental costs for equipment that you own or that another unit of local government owns;

(4) Employee fringe benefits;

(5) Administrative costs for filing reimbursement applications;

(6) Employee out-of-pocket expenses normally provided for in your operating budget (for example, meals or fuel);

(7) Legal expenses you may incur due to response activities, including efforts to recover costs from PRPs; and

(8) Medical expenses you incur due to response activities.

Edited September 21, 2011 by JohnnyOV

[Bnechis 3,961]

I thought that NYS Fire Districts were not allowed to bill for associated costs with HAZMAT clean up under the current federal regulations, hence the reason for the state bill. At least that's the way it's been explained to me

Fire districts are limited in their ability to "bill regular for services". This has been a major issue with EMS Transport Billing. That is different than billing to cover lost/damged/used items. Special Districts can bill for somethings, but generally not for anything that is regularly provided and already paid for by the taxpayer.

Edit: After a little searching, Federal regulation - 40 CFR 310.5 states that:

- http://ecfr.gpoacces...7.2.5.1&idno=40

Isn't a NYS Fire District a "special purpose district?"

Great find, however the program you found is not about billing the spiller. It is part of a special section of EPA that will reimburse local government (except special districts) when their is no one to go after (i.e. clandestin drug lab).

[Bnechis 3,961]

I believe our district has never been reimbursed for any Hazmat call we have ever been on.

You are mixing apples & oranges.

Billing a spiller and federal reimbursement for loss are 2 different things.

We have been paid many times, we have never been reimbursed.

On a side note, I'm reading that the EPA will only reimburse a government agency up to $25,000 for practices used above the funding that the local agencies normally provide for Hazardous materials response, not the full cost of the response should it exceed $25,000.

Bnechis, which agency reimburses you past the $25,000 mark?

Exxon, Getty, and a number of smaller companies.

[JohnnyOV 2]

Thanks for the clarification Capt. I've dealt with this in the classroom in college, just never out on the streets.

I guess we can revert back to the question of "why is thh state even introducing it in the first place?"

[Dinosaur 844]

Thanks for the clarification Capt. I've dealt with this in the classroom in college, just never out on the streets.

I guess we can revert back to the question of "why is thh state even introducing it in the first place?"

Because FASNY wants to take credit for it even though it will undoubtedly cause litigation when the responsible party tries to cap the bill at 10K because of the state law and the FD tries to charge them more under the federal law.

FASNY really needs to catch up with the times. It would make more sense to see them lobbying for support to effectively consolidate some of the 2000+ FD's in the state.

[Bnechis 3,961]

FASNY really needs to catch up with the times. It would make more sense to see them lobbying for support to effectively consolidate some of the 2000+ FD's in the state.

From FASNY's Legislative Action Center: "CONSOLIDATION – To enact legislation that would amend the consolidation statute and address the impending issue of town-wide fire departments."

In other words they do not like the new consolidation law that allows towns or citizens to have a ballet initative to force a consolidation

[Monty 35]

In my hazmat training, I was always given the impression that costs could be recovered from the entity causing the incident. However, searching the other day I couldn't find anything that backed this up. From google, I did see that a lot of states do have legislation similar to what is being proposed here.

Maybe, just maybe if there is a federal law, this will complement and strengthen it, as opposed to watering it down.

[helicopper 1,050]

In my hazmat training, I was always given the impression that costs could be recovered from the entity causing the incident. However, searching the other day I couldn't find anything that backed this up. From google, I did see that a lot of states do have legislation similar to what is being proposed here.

Maybe, just maybe if there is a federal law, this will complement and strengthen it, as opposed to watering it down.

TITLE 42--THE PUBLIC HEALTH AND WELFARE

CHAPTER 103--COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY (CERCLA)has allowed billing since December 1980.

Was ammended by Superfund Amendments & Reauthorization Act (SARA) in 1986.

There is a federal law; it was cited earlier. and it is the mechanism for costs to be recovered from the responsible party.

A new state law that limits the amount that can be recovered and restricts what can be billed for hardly seems "complementary" or "strengthening".

From a layperson's perspective, it would seem that this law will give responsible parties a way of fighting the bill in court, "but your honor, we're not responsible for all that equipment, we're just responsible for $10,000 in consumable supplies".

[helicopper 1,050]

From FASNY's Legislative Action Center: "CONSOLIDATION – To enact legislation that would amend the consolidation statute and address the impending issue of town-wide fire departments."

In other words they do not like the new consolidation law that allows towns or citizens to have a ballet initative to force a consolidation

No offense, but I wouldn't want to watch most first responders forced into a ballet either. Do they even make nomex tu-tu's?

Now if they wanted to have a ballot...

[Monty 35]

There is a federal law; it was cited earlier. and it is the mechanism for costs to be recovered from the responsible party.

A new state law that limits the amount that can be recovered and restricts what can be billed for hardly seems "complementary" or "strengthening".

From a layperson's perspective, it would seem that this law will give responsible parties a way of fighting the bill in court, "but your honor, we're not responsible for all that equipment, we're just responsible for $10,000 in consumable supplies".

I'm not sure how I missed the post mentioning this law as it was immediately preceeding mine. That said, I still don't see where it says this in the law. It's a pretty big piece that I'm sure is written by lawyers. You can se it at http://uscode.house.gov/download/pls/42C103.txt - it seems that most of it at least is talking about the superfund.

After looking through this for a while (why the missus watches her TV .. ) I see that Section 9607 estabilishes liability. Maybe under this, local agencies can claim they fall in ( B ) but it seems to be far from obvious.

shall be liable for -

(A) all costs of removal or remedial action incurred by the

United States Government or a State or an Indian tribe not

inconsistent with the national contingency plan;

( B ) any other necessary costs of response incurred by any

other person consistent with the national contingency plan;

( C ) damages for injury to, destruction of, or loss of natural

resources, including the reasonable costs of assessing such

injury, destruction, or loss resulting from such a release; and

(D) the costs of any health assessment or health effects

study carried out under section 9604(i) of this title.

The amounts recoverable in an action under this section shall

include interest on the amounts recoverable under subparagraphs (A)

through (D). Such interest shall accrue from the later of (i) the

date payment of a specified amount is demanded in writing, or (ii)

the date of the expenditure concerned. The rate of interest on the

outstanding unpaid balance of the amounts recoverable under this

section shall be the same rate as is specified for interest on

investments of the Hazardous Substance Superfund established under

subchapter A of chapter 98 of title 26. For purposes of applying

such amendments to interest under this subsection, the term

"comparable maturity" shall be determined with reference to the

date on which interest accruing under this subsection commences.

I certainly don't agree with everything that FASNY puts out there, however as I mentioned before NY is not alone in this type of legislation See google search 'hazmat recovery costs state' which seems to have at least 7 other states on the first page dealing with this topic.

I think it would be hard to argue that just because a state law applies that limits consumable to $10,000 that federal law doesn't apply for higher recovery costs. Unless of course I guess there is something in the federal law that says it doesn't apply if replaced by a local law. Whatever happens, I'm sure it will keep some lawyers busy

[Bnechis 3,961]

The Governor VETOED this legislation.

The Fire Service in NYS - 1

FASNY - 0

[Guest alsfirefighter]

I really just don't get FASNY sometimes. 9 times out of 10 I shake my head at what they put out that their members should support or not support. I see it on the training end far too often...compromise safety and education because it supposedly will affect the volunteer fire service. Because having lesser trained, lower qualified people on the street won't effect safety and services. People rise to the expectations put on them. Period.

[JohnnyOV 2]

I really just don't get FASNY sometimes. 9 times out of 10 I shake my head at what they put out that their members should support or not support. I see it on the training end far too often...compromise safety and education because it supposedly will affect the volunteer fire service. Because having lesser trained, lower qualified people on the street won't effect safety and services. People rise to the expectations put on them. Period.

What amazes me, is that in FL, volunteers were required to undergo the same amount of training (pretty much went through the career academy) as a paid guy. Their numbers never dwindled, and no one really ever complained as far as I could tell. It was accepted, and understood that before you even step foot on that rig, you were just as qualified as your counterpart sitting next to you.

NY obviously is stuck in the stoneage. Maybe its one of the reason's NYS has one of the highest LODD rates in the country.....

[efdcapt115 1,511]

What amazes me, is that in FL, volunteers were required to undergo the same amount of training (pretty much went through the career academy) as a paid guy.

And you have to pay for it yourself, out of pocket.

[JohnnyOV 2]

And you have to pay for it yourself, out of pocket.

I forgot about that little tidbit....

FASNY ALWAYS knows whats good for the volunteer fire service (end sarcastic remark here). Do your homework and make an informed decision before you get to the ballot box.