§ 37-17.1-07.1 — Hazardous chemicals preparedness and response program

North Dakota § 37-17.1-07.1

• Jurisdiction: North Dakota
• Title 37: Military
• Ch. 37-17.1: Emergency Services

Text

1. Program components.
a. The governor shall appoint members of the state emergency response
commission to carry out the commission's responsibilities as outlined in Public
Law 99-499, 42 U.S.C. 11001, et seq., also referred to as SARA title III, and the
responsibilities of the commission members as outlined in the North Dakota
emergency operations plan.
b. In conjunction with the state emergency response commission, the local
emergency planning committees, as appointed by the boards of county
commissioners, and the local emergency management organizations shall
coordinate the development and maintenance of a state hazardous chemicals
preparedness and response program.
c. The director of the division of homeland security and emergency management
shall serve as the chairman of the state emergency response commission. In the
absence of the chairman, the designated vice chairman shall serve as chairman.
The state emergency response commission by vote will select the vice chairman
to fulfill a two-year term. The chairman shall recognize the assignment of
representatives to the commission who are designated through a delegation of
authority by a member. The chairman shall designate a commission secretary,
solely for the purpose of documenting and distributing clerical proceedings, from
the staff of the division of homeland security and emergency management.
d. For the purpose of complying with the reporting requirements set forth in
sections 302, 304, 311, 312, and 313 of Public Law 99-499, 42 U.S.C. 11001,
et seq., also referred to as SARA title III, the owner and operator of any facility, as
defined in SARA title III, shall submit those reports to the North Dakota division of
homeland security and emergency management as required by SARA title III,
which shall establish and maintain the state repository for these reports.
e. For purposes of monitoring, determining if emergency response may be required,
and notifying local officials, owners and operators or responsible parties shall
report all spills or discharges to the appropriate state agency as required by law.
The report must include the name of the reporting party, including phone number
and address; date; time of release; location of release; containment status; name
of the chemical, if waterways are involved; and immediate potential threat. If the
release occurs or travels offsite from a facility, the owner and operator or
responsible party shall notify the surface owner within a reasonable time. State
agencies that receive direct reports of spills or discharges shall provide the report
information to the division within a time that is consistent with potential level of
response needed.
2. Establishment of funds.

a. There is created in the state treasury a nonlapsing restricted account to be known
as a state hazardous chemicals preparedness and response fund. The fund
consists of revenue collected from the state hazardous chemical fee system and
funds appropriated by the legislative assembly. Moneys in the fund shall be
appropriated biennially to the division of homeland security and emergency
management for carrying out the purposes, goals, and objectives of SARA title III,
and the state hazardous chemicals preparedness and response program.
b. The county treasurer of each county shall establish a nonlapsing restricted
account, to be known as the county hazardous chemicals preparedness and
response account. The county hazardous chemicals preparedness and response
account consists of revenue from the state hazardous chemicals fee system,
county, federal or state funds, grants, and any private donations provided to
finance the county hazardous chemicals preparedness and response program.
c. The director of the division of homeland security shall set appropriate fees for the
state hazardous chemical fee system subject to the following:
(1) Changes to fees charged will take effect on January first;
(2) An increase to fees levied on a per chemical basis made after January 1,
2026, may not exceed five dollars per year;
(3) The director shall announce any fee increases made after January 1, 2026,
a minimum of one year before the effective date; and
(4) The director may consider economic conditions, the general economy, and
the availability of funds appropriated by the legislature to offset the costs of
administering the program when setting fees.
d. Each owner and operator of a facility, as defined in SARA title III, shall pay an
annual hazardous chemicals fee to the division of homeland security and
emergency management.
(1) The fee must be paid by March first of each year.
(2) The fee is levied on a per chemical basis for each chemical within the
meaning of title 40, Code of Federal Regulations, part 355.20, or its
successor which is required under section 312 of SARA title III, to be listed
on the hazardous chemical inventory form (tier II) which the owner or
operator must submit to the division. The federal requirements must be used
for completing the tier II form, including the threshold amounts, as outlined
in title 40, Code of Federal Regulations, part 20.
(3) The maximum fee for a facility under this section is nine hundred fifty
dollars.
(4) The director of the homeland security and emergency management division
may impose fees for both late filing of reports and late payment of fees
subject to the following:
(a) A late fee may not exceed the amount of the hazardous chemicals fee
owed under this subdivision;
(b) After six months the director shall process further violations under
willful violations in subsection 4; and
(c) A facility exempt from fees under this subdivision which is late filing
reports under this section may be subject to a late fee equal to the
amount the facility would be charged if it was not exempt.
(5) The division of homeland security and emergency management shall
transfer to the county hazardous chemicals preparedness and response
account one-half of the regular fees collected from the state's hazardous
chemicals fee system.
e. The owners or operators of family farm enterprises that are not engaged in the
retail or wholesale of hazardous chemicals and facilities owned by the state or
local governments are exempt from the fee under subdivision c. For purposes of
this section, the terms "family farm" and "farmer" have the same meaning as set
forth in section 6-09.11-01.

f. State and county governments are authorized to accept and may deposit grants,
gifts, and federal funds into the hazardous chemicals preparedness and response
fund and accounts for the purpose of carrying out the hazardous chemicals
preparedness and response programs to include training, exercising, equipment,
response, and salaries, and local emergency planning committee member
stipends not to exceed thirty percent of state per diem per meeting attended. In
lieu of stipends the committee chairman may provide a meal or refreshments
other than alcoholic beverages.
g. "Hazardous chemical" means as defined in title 40, Code of Federal Regulations,
part 355.20 and title 29, Code of Federal Regulations, part 1910.1200.
h. The state hazardous chemicals fee system does not supersede a city fee system
for hazardous chemicals.
3. a. A person who causes a release, as defined in title 40, Code of Federal
Regulations, part 355.20, of a hazardous chemical in excess of the reportable
quantity of that chemical, as defined in title 40, Code of Federal Regulations, part
355.20, is liable for the response costs incurred by state or local hazardous
chemical response personnel. The state agency, local agency, volunteer
organization, or hazardous chemical response personnel, as identified in the
state or local emergency operations plan, which undertakes a response action
may recover those response costs in an action brought before a court of
competent jurisdiction. If more than one jurisdiction, organization, or agency
incurs response costs for the same hazardous chemical release or incident, those
hazardous chemical response jurisdictions, agencies, organizations, or personnel
may file a joint action and may designate one entity to represent the others in the
action.
b. In the action to recover reasonable and necessary response costs, state
agencies, local agencies, or volunteer organizations may include operational,
administrative, personnel, and legal costs incurred from its initial response action
up to the time that it recovers its cost. Reasonable and necessary costs are those
additional costs incurred that are a result of the responsible party's failure or
inability to implement or initiate the necessary actions to protect life, property, and
the environment.
4. a. A person who willfully violates any of the reporting, planning, or notification
requirements outlined in the provisions of the Emergency Planning and
Community Right-to-Know Act of 1986 [title III of Public Law 99-499, 42 U.S.C.
11001 et seq.], is subject to a civil fine of not more than fifteen thousand dollars
for each separate offense. For purposes of this subdivision, each day of
continued violation constitutes a separate offense. All civil fines collected under
this subdivision must be deposited in the state general fund. The state and its
political subdivisions and employees of the state or a political subdivision acting
within the scope of their employment are not subject to the civil fines established
in this subdivision.
b. Any person who knowingly falsifies information or who intentionally obstructs or
impairs, by force, violence, physical interference, or obstacle, a representative of
state or local government or state or local hazardous chemicals response
personnel attempting to perform duties and functions in state or local emergency
operations plans or complying with Public Law 99-499, SARA title III, is guilty of a
class B misdemeanor. The state and its political subdivisions and employees of
the state or a political subdivision acting within the scope of their employment are
not subject to the penalty established in this subdivision.
5. If the director of the division of homeland security and emergency management
determines that a violation of this chapter has occurred, the director shall make all
evidence available to the attorney general for use in any remedial action the attorney
general's office determines appropriate, including injunctive relief. Nothing in this
section may be construed to deny use of the remedies authorized under chapter
32-40.