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98-36 Kodiak Emergency Services CouncilLOCAL RESPONSE AGREEMENT BETWEEN ALASKA DEPARTMENT OF ENVIRONMENTAL CONSERVATION WIA KODIAK EMERGENCY SERVICES COUNCIL (on behalf of the Kodiak Island Borough and the City of Kodiak) July 17,1998 Local Response Agreement Page 1 of 7 ADEC/KodiakESC PURPOSE This agreement between the Alaska Department of Environmental Conservation (DEC) and the Kodiak Emergency Services Council (hereinafter referred to as the "local government") is intended to (1) facilitate coordinated and effective oil and hazardous substance release responses within the State, and (2) provide for reimbursement by DEC of actual costs, other than normal operating expenses as defined below, incurred by the local government in the abatement of a release or threatened release of oil or a hazardous substance as authorized under State law. BACKGROUND Under State law, any person who causes or permits a release of oil or a hazardous substance must take proper response action, consisting of containment and cleanup, unless DEC determines that containment or cleanup is (1) technically infeasible, (2) would cause greater environmental damage than if the release were not contained or cleaned up, or (3) in the case of a hazardous substance release, would pose a greater threat to human life or health than if the release was not contained or cleaned up (AS 46.04.020; 46.09.020). All releases of oil or hazardous substances must be reported to DEC by the responsible party. If DEC determines that the responsible party has failed to conduct a proper cleanup, or cannot or will not do so, DEC may direct the person undertaking the response action to cease and may undertake containment or cleanup directly or by contract. These actions are carried out by the designated DEC State On -Scene Coordinator (SOSC). DEC maintains access to a wide array of containment and cleanup resources which are available to the SOSC for this purpose. The Department is seeking to enhance its response capability by executing Local Response Agreements (LRAs), through which local emergency response resources can be used to facilitate coordinated and effective response actions. The SOSC activates and directs these resources through the Incident Command System (ICS). These resources supplement the Department's own response capability. The SOSC will select those resources best suited for responding to a particular incident, and will request such services upon the determination that current response actions are inadequate. Through these agreements, DEC intends to develop partnerships through which local resources, experience and knowledge can benefit statewide response actions. State reimbursement of actual costs will make available the combined response resources of local governments, substantially enhancing the State's overall response capability. Response activities will be conducted in accordance with the Alaska Federal/State Preparedness Plan for Response to Oil and Hazardous Substance Discharges/Releases (the "Unified Plan") and its ten regional sub -plans and will be consistent with all applicable local, State and federal response plans and requirements. Local Response Agreement Page 2 of 7 ADEC/Kodiak ESC GENERAL PROVISIONS DEC shall reimburse a local government for actual expenses, other than normal operating expenses as defined below, incurred in the abatement of a release or threatened release of oil or a hazardous substance if (1) the local government has entered into an agreement with the Commissioner under AS 46.04.020(e) or AS 46.09.020(e); (2) the Commissioner determines that the expenses were for a necessary emergency first response to a release or threatened release that posed an imminent and substantial threat to the public health or welfare, or to the environment; and (3) the expenses were consistent with the regional master plan, if any (AS 46.08.070(c)). DEC shall not be obligated to reimburse any cost incurred by a local government associated with a response when the local government is identified as the responsible party (RP). Under AS 46.09.020(e), the Commissioner of DEC may enter into agreements with local governments in order to (1) facilitate a coordinated and effective hazardous substance release response in the state; (2) provide for cooperative hazardous substance release notification procedures; or (3) provide for cooperative review of hazardous substance release response contingency plans submitted to the department. DEC may enter into similar agreements with local governments to facilitate a coordinated response to oil discharges (AS 46.04.020(e)). The local government has been created under the laws of the State of Alaska and has all of the powers necessary to enter into agreements and specifically the power to enter into this Local Response Agreement. The local government is also a local emergency response authority empowered to commit locally available resources to assist DEC in the abatement of a release or threatened release of oil or a hazardous substance for purposes of facilitating a coordinated and effective hazardous substance release response. Therefore, based on the foregoing and in consideration of a mutual interest in facilitating a coordinated and effective oil or hazardous substance release response, both parties agree to the following: TERMS OF AGREEMENT Response to Oil and Hazardous Substance Spills DEC and the local government shall designate local contact persons who will implement this agreement. 2. DEC and the local government shall mutually establish, and coordinate, procedures for notification of releases and the callout by DEC of response resources as follows: Local Response Agreement Page 3 of 7 ADEC/Kodiak ESC A. When the local government determines that an actual or potential oil or hazardous substance release may pose an imminent and substantial threat to the public health or welfare or to the environment, the local contact person shall then notify the SOSC. The SOSC will make the decision whether to request activation of the Local Response Agreement in order to initiate local response activities and provide for reimbursement of costs incurred. B. When DEC has been notified of a release or threatened release of oil or a hazardous substance which may pose an imminent and substantial threat to the public health or welfare or to the environment, the SOSC will evaluate the adequacy of response actions being undertaken by the responsible party (RP). If the SOSC determines that the response by the RP is insufficient, the SOSC may request activation of the Local Response Agreement in order to initiate local response activities and provide for reimbursement of costs incurred. 3. The SOSC or his designee must give prior written approval for any expenditure submitted for reimbursement. In an emergency, verbal approval may be granted by the SOSC or his designee. If, due to special circumstances, it is not possible to obtain advance approval despite a good -faith effort on the part of the local government, the local government may initiate emergency response activities. In all cases, however, response activities undertaken by the local government within the scope of this agreement will be reported to the SOSC or his designee as soon as possible. 4. DEC may, in an emergency, verbally request specified services from the local government in an amount not to exceed $25,000.00. All verbal requests will be followed, within 48 hours, with a written description of the scope of services to be provided in the form of a Notice To Proceed (NTP) pursuant to the terms of the agreement. 5. Pursuant to AS 46.08.070(c), DEC shall reimburse the local government for actual expenses incurred under this agreement, other than normal operating expenses, for personnel, goods and services used during a response. For the purposes of this agreement, and to implement AS 46.08.070(c), the term "normal operating expenses" means those routine expenditures that are unrelated to the response activities associated with a particular incident. Such expenses would include normal overhead and operating costs (office rent, utilities, fax lines, vehicle leases, etc.). Personnel expense incurred as a direct result of response activities is not considered a normal operating expense and will be billed and reimbursed on an hourly basis. Reimbursement will be made for actual expenses for responses both inside and outside of the local jurisdiction when requested by the SOSC. All such reimbursement is subject to the requirements of AS 46.08.070(c). As authorized under AS 37.05.285(c), the State will not be liable for interest payments on any unpaid balances owed. Local Response Agreement Page 4 of 7 ADEC/Kodiak ESC 6. Subject to the provisions of Article 3 of this agreement, DEC will make no payment for personnel, services, or goods provided during or prior to the incident unless such personnel, services, and goods are requested and approved in writing by the SOSC or his designee. Equipment purchased for the incident becomes State property and must be relinquished to the State at the end of the incident response unless other arrangements meeting the applicable requirements of the Alaska Department of Administration have been made in writing. The local government shall provide a list, or description of personnel, equipment and services that will be available to respond to an incident, along with the cost of each item. This information shall be updated semi-annually to reflect current and actual services and costs. Personnel and equipment costs will reflect usual, customary and reasonable rates for comparable services within the area of operation. Only actual expenses incurred for personnel, equipment and services are eligible for reimbursement. 8. The local government will maintain sufficient records to verify work done by personnel and to document the use of goods and services during an incident. The local government will revise its record-keeping and accounting methods if requested by DEC in order to substantiate claims for reimbursement. 9. The local government shall submit to the SOSC for payment the original documentation of expenditures for each incident. Such documentation will include time sheets, field reports, and receipts. Submissions for payment will include a status report addressing activities covered by the submitted reimbursement request. All billings must meet the State's documentation requirements for expenditures and any additional requirements under the Oil and Hazardous Substance Release Prevention and Response Fund. The State will not reimburse for costs which are not sufficiently documented. 10. DEC and the local government agree that any dispute arising under this agreement regarding reimbursement of costs shall be submitted to mediation for resolution prior to any action being taken in the courts of the State of Alaska. The cost of such mediation will be divided evenly between the parties. In addition, each party will be responsible for its own costs incurred as a result of such mediation. 11. The local government, having entered into a written agreement with the Department to provide response action with respect to a release or threatened release of a hazardous substance, is provided immunity from civil liability to third parties for spill response services to the maximum extent available under AS 46.03.823 - Hazardous Substance Response Action Contractors and AS 46.03.825 - Oil Spill Response Action Contractors. Nothing in this agreement is intended to alter or limit those protections, or any other immunities or limitations of liability that may be available under the law. Local Response Agreement Page 5 of 7 ADEC/Kodiak ESC 12. DEC and the local government agree to identify release response preparedness needs, and to pursue reimbursement of the local government for preparedness costs, not associated with individual incidents, that will enhance local response capability. This may include provisions for joint training and exercises with Department response staff. The parties acknowledge that the Response Fund may be unavailable for this purpose (AS 46.08.070(c)). 13. DEC and the local government agree that nothing in this agreement shall be construed as obligating the local government to respond to a particular incident. Whenever possible, the SOSC shall extend the right of first refusal to the local government to undertake response actions. 14. DEC and the local government agree that nothing in this agreement shall be construed as obligating local government to support response and preparatory activities should DEC no longer be capable of the funding support identified in this agreement. 15. DEC and the local government mutually agree that nothing in this agreement shall be construed as obligating DEC to the expenditure of funds, or to the future payment of funds, in excess of that authorized by the SOSC under this agreement. 16. DEC retains the option to audit. Audit may include, but is not limited to, inspection of all records, documents, tangible objects, and physical locations related to this agreement. 17. DEC and the local government will execute any other documents reasonably necessary to fully perform the intentions of this agreement. 18. This agreement shall be governed and interpreted by the laws of the State of Alaska. 19. No party may assign this agreement or any interest therein without the written consent of the other party. 20. No amendment, alteration or modification of this agreement shall be effective unless made in writing and duly executed by the parties involved. 21. Nothing in this agreement shall preclude either party from seeking reimbursement for actual costs from other sources. Local Response Agreement Page 6 of 7 ADEC/Kodiak ESC 22. This agreement shall be in effect on the date of execution. The agreement may be terminated at any time by either party, with or without cause, with 60 days' written notice served upon the other party. If this agreement is terminated the local government shall have no rights to further reimbursement except for those expenses already approved pursuant to this agreement. SIGNATORIES LU1 t9� Michele Brown, Commissioner Date Alaska Department of Environmental Conservation �0.At.® JerAle Selby, Mayors Date Kodiak Island Borough Local Government Authorized Representativ KIB Contract No. 98-36 a — a U► • Date Attest Donna Smith, CMC/AAE, Clerk Kodiak Island Borough 714 Date City of Kodiak Local Gov uthorized Representative A. t� 9a Date Attest William Maloney, CMC, Clerk City of Kodiak Local Response Agreement Page 7 of 7 ADEC/Kodiak ESC