Recovering Costs for Spill Cleanup Activities.

Always check with local rules and authority.

This presentation addresses some of the most common issues which

arise in working with the towing industry in insurance coverage and

spill cleanup matters. Because decisional and statutory law on any

topic can differ somewhat from state to state and because insurance

principles and regulations evolve and are often subject to multiple

interpretations, the reader is cautioned not to rely on the principles

set forth without undertaking additional research. Case citations used

are to Texas and other state law.

What are the different types of tows?

Private Property tow - Any tow of a vehicle authorized by the owner

of a parking facility (for example, an apartment building parking lot,

restaurant, paid parking lot) without the consent of the owner or

operator of the vehicle.

Consent Tow - Any tow of a motor vehicle in which the tow truck is

summoned by the owner or operator of the vehicle, or by a person

who has possession, custody, or control of the vehicle.

Incident Management tow - Any tow of a vehicle in which the tow

truck is summoned because of a traffic accident or to an incident, or

any tow initiated by law enforcement.

.

TDLR

86.201. Tow Truck Permit--Incident

Management Towing (New section adopted effective April 15, 2008, 33 Tex-Reg 2940)

(a) An incident management towing permit is

required for a tow truck used to perform any non-

consent tow initiated by a peace officer, including a

tow allowed under §545.3051, Transportation

Code.

Most districts have maximum tow charges, check your local

jurisdiction….

Texas Transportation Code-

Section 545.3051:

REMOVAL OF PERSONAL PROPERTY

FROM ROADWAY OR RIGHT-OF-WAY –

(3) "Personal property" means:

(A) a vehicle described by Section 545.305;

(B) spilled cargo;

(C) a hazardous material as defined by 49 U.S.C. Section 5102 and

its subsequent amendments; or

(D) a hazardous substance as defined by Section 26.263, Water

Code.

(b) An authority or a law enforcement agency may remove

personal property from a roadway or right-of-way if the

authority or law enforcement agency determines that the

property blocks the roadway or endangers public safety.

(c) Personal property may be removed under this section without

the consent of the owner or carrier of the property.

(d) The owner and any carrier of personal property removed

under this section shall reimburse the authority or law

enforcement agency for any reasonable cost of removal and

disposition of the property.

TC 545.3051

Texas Transportation Code- Florida Traffic

Control

- Section 600.001: Section 316.2044

REMOVING MATERIAL FROM HIGHWAY

(a) A person who drops or permits to be dropped or

thrown on a highway destructive or injurious

material shall immediately remove the material or

cause it to be removed.

(b) A person who removes a wrecked or damaged

vehicle from a highway shall remove glass or any

other injurious substance dropped on the highway

from the vehicle.

AL – 32-5A-60

TN - 55-8-170

KY – 189-754

PA – 75-3709

MS – 63-3-1211

VA – 18.2-324

MD – 21-1111

ID – 49-613

WV – 17C-14-11

OK – 47-11-1110

NY – Nycode 1219

MT – 61-8-365

DE – Delcode 4189

UT – 41-6a-1712

IA – 321-371

NE – 39-311

MN – 169-42

NH – 265-102

WA - RCW 46.61.645

In regulation, SHALL is a requirement.

Most States have required minimum amounts of liability

coverage* to satisfy their financial responsibility law.

This requirement was enacted to protect individuals and property from

damages incurred from the operation of automobiles.

Automobile insurance contracts generally spell out the

dollar limits of coverage and the conditions applicable to

a loss occurrence.

*Compulsory or Mandated Insurance meets this requirement

An auto policy may include six coverages.

1. Bodily Injury Liability

2. Medical Payments or Personal Injury

Protection (PIP)

3. Property Damage Liability

4. Collision

5. Comprehensive

6. Uninsured and Underinsured Motorist

Coverage

Required

Covers You

Covers others

Required minimum liability limits are 30/60/25*.

This means $30,000 for each injured person,

up to a total of $60,000 per accident

and $25,000 for property damage per accident.

*Texas

Insurance Policy

As the name implies, property damage liability car

insurance ensures that any damage to property

that you may have caused will be paid off by the

insurance company.

What is covered under “property”?

Of course, the other person’s car or vehicle is the

foremost concern. However, other property such

as a fence, or even a mailbox will be covered by

property damage liability insurance.

http://www.carinsuranceguru.org/guide/what-is-property-damage-liability-car-insurance/#sthash.Fuup6PJz.dpuf

How about a road?

11. Pollution

"Bodily injury" or "property damage" arising out

of the actual, alleged or threatened discharge,

dispersal, seepage, migration, release or escape

of "pollutants":

(Paragraph) a. That are, or that are contained in

any property that is:

(1) Being transported or towed by,

handled, or handled for movement

into, onto or from, the covered

"auto";

Exclusions:

Pollution coverage is typically stated in the exclusion section:

(Paragraph) a. does not apply to fuels,

lubricants, fluids, exhaust gasses or other

similar “pollutants” that are needed for or

result from the normal electrical, hydraulic

or mechanical functioning of the covered

auto.

What is a Pollutant?

Two types of Cleanup

Solid Debris

Liquid Debris (Pollutants)

TRAFFIC ACCIDENT STUDY GUIDE 2010 SECTION THREE

The study guide was developed through the cooperation

of International Association of Chiefs of Police and the

Federal Law Enforcement Training Center.

d. LIQUID DEBRIS – This is debris consisting of liquids from a

vehicle or its cargo, i.e., oil, transmission fluid, or radiator

fluid. Liquid debris can be broken down into five categories

or patterns found at the accident scene.

(1) Spatter – Spatter is the collection of spots on the

road made by liquid squirted from the vehicle or its

cargo by the force of collision. One example is

coolant from the radiator.

(2) Dribble – Dribble is the liquid from a vehicle or its

cargo that drops to the ground. This may often leave

a trail if the vehicle is moving. The spatter pattern

may also give an indication of the direction of

travel/motion at the time of impact.

(3) Puddle – Wet area where dribble accumulates after a

vehicle has come to rest.

(4) Run-off – Run-off is rivulets of liquid from a puddle

area flowing downhill toward soak-in at the edge of

the pavement.

(5) Soak-in – An area saturated with liquid, either at the

end of the run-off or as a puddle marking the rest

position of a vehicle.

Splatter

Dribble? Puddle

Run-off

Soak-In

Puddle

Solid Debris could be pollutant debris.

Liquid Debris cleanup has four components

Immediate Response Cleanup

Waste Classification

Proper Disposal

Secondary Spill Cleanup (remediation) (typically impacted soil or water contaminated by the spill if needed)

In the U.S., the response to an incident is

regulated under many statues and many

government agencies.

It is important for responders to at least

understand the basis of these regulations because

they dictate everything, from how they manage a

spill to the disposal of the spilt material.

http://ops.fhwa.dot.gov/publications/fhwahop08058/40.htm

A total of 716 IM towing tickets from 84 companies were collected and reviewed.

Pollutant or

National Tow Truck Driver Certification

Towing & Recovery Association of America (TRAA) represents the towing and

recovery industry on a national level.

This group has recognized that the tow truck driver can also be a

valuable contributor to the safe, quick clearance of an incident. With

proper training and certification, they can provide help with the clean-up

and handling of typical vehicle fluids at an incident.

Because they are often the first at the scene, this assistance serves to reduce

the clean-up time and allows for lanes to be opened in a more timely fashion.

Through a grant from the DOT, TRAA established national standards for tow

truck operators and developed the National Driver Certification Program.

http://traaonline.com/certification/

This program is based upon light, medium, and heavy duty towing and

covers the following areas:

Customer service

Safety

Incident management

Truck

Equipment

When assisting with traffic incident clean-up involving a hazardous

material, the type of requirements for tow truck drivers will

depend on the type of incident, the severity of the spill, and the

location of the spill relative to the damaged vehicles.

More information on the levels and curriculum topics, including handling of

hazardous material, is available on the TRAA Web site at

www.towserver.net/certification.htm.19

The applicable levels for TRAA tow truck driver certification when

dealing with hazardous materials are:

Level 1: For most vehicular spills (car wreck) with only minor

amounts of hazardous material spilled, Level I (Light Duty)

requirements should be sufficient, provided that tow truck

operators are not coming in contact with the spilled material.

Level II: For vehicular spills (medium-heavy duty truck wreck) with

moderate amounts of hazardous material spilled (partial saddle tank

emptied), Level II (Medium Duty) requirements should be sufficient,

provided that tow truck operators minimize their time near the

spilled material.

Level III: For large vehicular spills (tanker spill, blood-borne

pathogens, etc.), Level III (Heavy Duty) requirements will be

necessary to ensure tow truck driver safety.

Pollutant Cleanup

Incident Clearance “Authority

removal”

28 of 50 states have some form of AR statute

Authorization to pre-designated public agency /

agencies – generally law enforcement or state DOTs –

to remove damaged or disabled vehicles and/or spilled

cargo from roadway that is determined to be a hazard.

If the driver is unwilling or unable to remove the vehicle or cargo,

designated authorities may require or perform removal without

consent of the owner.

KNOW THE DESIGNATED AUTHORITY ! Get their consent.

HAZWOPER Requirements Hazardous Waste Operations and Emergency Response Standard

(HAZWOPER)

This course is specifically designed for workers who

are involved in

• clean-up operations,

• voluntary clean-up operations,

• emergency response operations,

• and storage, disposal, or treatment of hazardous

substances or uncontrolled hazardous waste sites.

This course covers topics included in

29 CFR 1910.120.

The 40 hour course is for people that will regularly be

working with hazardous materials or be responsible

for cleanup of these materials.

The 24 hour course if for people that may occasionally come in contact with hazardous

materials, such as an area supervisor that will visit a site once in a while.

The 8 hour course is the annual refresher that is

required to remain current once the other courses

have been taken.

Resources

goldcrew.net

car insurance definition of pollutants

tow removal of material from highway

40 hr hazwoper online

Is your friend

tow truck driver spill cleanup requirements

Immediate Response

Requirements and Qualifications

THE RULES OF THE BATTLE

Section 402(p) of the Clean Water Act specifies that

NPDES permits for municipal storm sewer

Discharges

……… “shall require controls to reduce the discharge

of pollutants to the maximum extent practicable…

and such other provisions as the Administrator or the State

determines appropriate for the control of such pollutants.”

See 33 U.S.C. §1342(p)(3)(B)(iii).

In the U.S., the response to an incident is regulated under many

statues and many government agencies.

Traditional Kitty Litter type absorbents

Stormwater runoff from “cleaned up” areas

EPA / NFPA Reach out Article

When may chemical countermeasures be used for

roadside fuel spills?

For small roadside fuel spills, chemical

countermeasures may be used, without EPA or RRT

approval, after other available physical cleanup

techniques, such as sorbents, have removed the

bulk of the spilled material. However, they may not

be applied in quantities that could runoff into

surface waters.

Before chemical countermeasures are applied in

areas where they may possibly contaminate

groundwater, state environmental authorities

should be consulted.

ecschem.com

goldcrew.net

Immediate Response Cleanup

*After the immediate response, all rules and regulations then apply

goldcrew.net

The water loving

portion of the

surfactant

molecule is

always shown as

a circle

The straight or

squiggled line

signifies the oil

loving portion

of the molecule

Gold Crew TC surfactants form spherical micelles that

surround the hydrocarbon molecules forming micro

emulsions removing the contaminant from the hard

surface.

The solution suppresses volatile organic vapors and

works on a wide range of organics including fuels, oils,

vegetable oils and animal fats.

TC enhances the natural biodegradation of fuel range

hydrocarbons.

Recovering Costs

So what can I bill for

and how much can I charge?

Regulated Fees for Equipment and

Procedures

Other Regulated Charges

Other charges are only included in the tables if the

regulations specifically list the item and the regulated

amount. The 46 additional, non-towing charges fall

into 18 categories. Of these 18 categories, 9 appear

only once. Labor, winching, and dollies are found

most often in the local regulations. Charges for labor

have the largest range of fees, from $30 to $200.

Feasibility and Effects of Implementing a

Maximum Fee for Incident Management Towing in Texas

December 10, 2012

Feasibility and Effects of Implementing a

Maximum Fee for Incident Management Towing in Texas

December 10, 2012

Remember, the response to an incident is regulated under

many statues and many government agencies.

Actions performed at the scene relative to the incident

Time and Materials

What I can bill for:

HAZ WOPPER CERTIFIED Spill Cleanup personnel

Spill Variables

Type of Vehicles Involved: Auto___X____ Commercial Truck_______

Boat_______ Other _______

How many vehicles involved: ____2________

Type of Fluids Spilled:___Vehicle Operating Fluids________

Size of Spill:

(Example:3’x5’)______6 x 8__puddle__________________

Surface of Spill: Asphalt ___X____ Concrete _______ Gravel _______

Water _______ Other _______

Actions Performed

4 things to track

efrecovery.com

efrecovery.com

efrecovery.com

Disposal

Law requires the generator to determine their own waste.

Insurance classifies vehicle fluids as pollutants

State or Health Departments may classify the same waste as hazardous

Are there exemptions?

(a) the present owner of a facility from which there has been a release

of a hazardous substance;

(b) the present operator of a facility;

(c) the owner of the facility at the time of disposal or release;

(d) the operator of the facility at the time of disposal or release;

(e) anyone who arranges for the disposal or treatment of hazardous

substances or who arranges with a transporter for

disposal of hazardous substances;

(f) any transporter of hazardous substances; and

(g) an owner of a facility with knowledge of a spill or release of

hazardous substances who sells or transfers without

disclosing.

Who are potentially responsible parties?

The concept of strict liability bears no logical relationship

to concepts of fairness, reasonableness or justice.

PLAISTOW, N.H. Aug 2002-- Hundreds of service

stations in New Hampshire are refusing to pay part of a

$65 million Superfund waste cleanup, testing how far the

federal government should go in recovering costs from

businesses whose waste winds up at the Environmental

Protection Agency’s toxic waste cleanup Superfund sites.

Boston EPA officials who oversee the program say they

are sympathetic, but the law allows regulators to go

after any business that sent oil to Beede from the time it

opened in the 1920s.

Not only are potentially responsible

parties held strictly liable for the damages

resulting from the contamination, any one

potentially responsible party can be held

jointly and severally liable for the entire

cost of clean-up.

The Importance of Record Keeping

Disposal

Know what the True cost is for disposal.

Know the cost to dispose of a drum of ignitable waste

And how much the drum will hold ; example 300 wiper pads or 250 pounds

Then calculate the cost of disposal based on what you used at the scene.

What about long term liability?

Keep waste segregated and manifested by incident’s responsible party.

Any potentially responsible party who gets

sued, or against whom costs are

recovered, has a right of contribution

against any other potentially responsible

parties.

You would have a right of contribution against the

property owner or insurer or the party who did

the dumping.

Good recordkeeping is essential

• Tag Each individual waste bag

• List each waste bag by response

number on the manifest

• Keep records safe for future

Add this line Some of the specific rules or statutory provisions sanctioning the“ Pollutant cleanup”

CVC 23113 ; CWA 402(p) , CCR

Certified Responders Know H&S issues and use products

that address the hazards faced

Establish Spill Cleanup Level

Clean Water Act Compliant Stormwater runoff compliant

Remediation Cleanup (optional)

Cost Recovery

Record Keeping

Technical Support

Thank You

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