Town of Barnstable, MA
Barnstable County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town of Barnstable 10-7-1993 by Order No. 93-104 (Art. XXXIX of Ch. III of the General Ordinances as updated through 7-7-2003). Amendments noted where applicable.]
GENERAL REFERENCES
Noncriminal disposition — See Ch. 1, Art. I.
Fee for license to store hazardous materials — See Ch. 76, Art. II.
Fuel and chemical storage systems — See Ch. 326.
On-site sewage disposal systems — See Ch. 360.
Toxic and hazardous materials — See Ch. 381.
Wells — See Ch. 397.

§ 108-1 Findings.

A. 
Exposure to hazardous substances can cause cancer, genetic mutation, birth defects, miscarriages, lung, liver, and kidney damage, and death.
B. 
Environmental contamination can bankrupt site owners, lower or destroy land values, drive out residents and industry, depress local economies, and endanger public health.
C. 
Most hazardous substances do not readily decompose into harmless components. They instead remain in highly dangerous forms and penetrate by movement through land and water into and throughout the environment.
D. 
Some hazardous substances are considered explosive and/or extremely hazardous and toxic. These substances have caused death and serious injuries to Fire Department personnel. A comprehensive database containing the types and amounts of toxic or hazardous materials stored or handled within buildings within the Town should be formed in order to provide essential information to Fire Department personnel.
E. 
Barnstable's groundwater is the sole source of its existing and future drinking water supply. When sufficient groundwater exists to saturate a permeable geologic formation so as to yield significant quantities of water through wells or springs, it is known as an aquifer.
F. 
On Cape Cod, some aquifers may be integral with the surface waters, lakes, streams and coastal estuaries which constitute significant recreational and economic resources of the Town. These resources are used for swimming and other water-related recreation, shellfishing and fishing.
G. 
Accidental spills and discharges of petroleum products and other toxic and hazardous materials onto the ground and surface waters have repeatedly threatened the quality of such groundwater supplies and related water resources on Cape Cod and other Massachusetts towns, posing substantial public health and safety hazards and threatening economic losses to the affected communities.
H. 
Unless stricter preventive measures are adopted to manage the storage, use, and generation of toxic and hazardous materials and to prohibit the release of these materials within the Town, further releases of such materials to the aquifer will predictably occur, and with greater frequency and degree of hazard by reason of increasing construction, commercial and industrial development, population, and vehicular traffic in the Town of Barnstable and on Cape Cod.
I. 
The foregoing conclusions are well known and have been confirmed by findings set forth by the Barnstable County Health and Environmental Department, the Cape Cod Commission, the Massachusetts Department of Environmental Protection, the Occupational Safety and Health Administration (OSHA), and the Environmental Protection Agency (EPA).
J. 
Recent revisions to the Massachusetts Drinking Water Regulations, 310 CMR 22.00, created the need for this chapter to be amended in order to remove potential conflicts between this chapter and 310 CMR 22.00.

§ 108-2 Authority.

The Town of Barnstable adopts the following measures under its home rule powers, its police powers to protect the public health and welfare, and its authorization under M.G.L. Chapter 40, § 21.

§ 108-3 Definitions.

A. 
Enforcement agencies.
BOARD OF HEALTH
A regulatory committee of the Town. It consists of three members, one of whom is a physician. The members are appointed by the Town Council of the Town of Barnstable.
BUILDING COMMISSIONER
The designated supervisor and administrator of the Town of Barnstable Building Department. The Building Commissioner is appointed by the Town Manager.
FIRE DEPARTMENT
The appropriate Town of Barnstable Fire District's Fire Chief and/or that Fire Chief's designee(s).
HEALTH DEPARTMENT
The Director of Public Health, who is the designated agent of the Board of Health, and/or the Director of Public Health's designee(s). The Health Department provides administrative support to the Board of Health.
B. 
Other terms.
ACUTELY HAZARDOUS MATERIAL
A material which is extremely toxic or reactive. For the purposes of this chapter, any acutely hazardous waste listed within 310 CMR 30.136 of the Massachusetts Department of Environmental Protection Hazardous Waste Regulations, and those wastes listed within 310 CMR 30.131 with EPA Hazardous Waste Nos. F020, F021, F022, F023, F026, F027, and F028 are considered as acutely hazardous materials.
HANDLE
To use, to deal with, act on, or dispose of.
HAZARDOUS MATERIAL
One or more of the following:
(1) 
A product or waste or combination of substances which, because of quantity, concentration or physical or chemical or infectious characteristics, poses a present or potential hazard to human health, safety, or welfare or the environment when improperly treated, stored, transported, used, or disposed of or otherwise managed.
(2) 
Any material regulated under Sections 310 CMR 30.122, 310 CMR 30.123, 310 CMR 30.124, 310 CMR 30.125, 310 CMR 30.131 (except for those listed with EPA Hazardous Waste Nos. F020, F021, F022, F023, F026, F027, F028 which are considered as acutely hazardous materials), 310 CMR 30.132, and 310 CMR 30.160 of the Massachusetts Department of Environmental Protection Hazardous Waste Regulations, et seq., as these statutes may be amended. A general listing of these materials and quantities is available at the Health Department office.
(3) 
Any material, waste, product, or substance which has one or more of the following characteristics:
(a) 
Ignitable: easily catches fire, flash point of less than 140° F.;
(b) 
Corrosive: easily corrodes certain materials, very acidic or alkaline, the pH is less than or equal to 2.0 or greater than or equal to 12.5;
(c) 
Reactive: explosive, produces toxic gases when mixed with water or acid;
(d) 
Toxic: poisonous.
MATERIAL SAFETY DATA SHEET (MSDS)
The form containing data regarding physical characteristics, flammability, reactivity, toxicity, and the health and safety hazards of specific chemicals, as well as information relative to procedures recommended for spills and leaks of specific chemicals and special precautions to be taken during handling of specific chemicals.
OPERATOR
The person who has the effective control of a business operation, or governmental agency.
OWNER
The person who has legal ownership of a site. For the purpose of this regulation, the Health Department shall be entitled to rely on the most current list of owners in the records of the Town Board of Assessors as providing sufficient evidence of ownership under this chapter.
RELEASE
The accidental or intentional spilling, leaking, pumping, discharging, pouring, emitting, emptying or dumping of toxic or hazardous material upon or into any land, air, or waters of the Town of Barnstable. Release includes, without limitations, leakage of such materials from failed or discarded containers or storage systems, and disposal of such materials into any sewage disposal system, dry well, catch basin, unapproved hazardous waste landfill, or any other discharge of toxic or hazardous materials into the environment. The term "release" as used and applied in this chapter does not include the following:
(1) 
Proper disposal of any material in a sanitary or industrial landfill that has received and maintained all necessary legal approvals for that purpose;
(2) 
Application of fertilizers and pesticides in accordance with label recommendations and with regulations of the Massachusetts Pesticide Control Board;
(3) 
Application of road salts in conformation with the Snow and Ice Control Program of the Massachusetts Highway Department and/or the Town of Barnstable Highway Division.
(4) 
Disposal of sanitary sewage to subsurface sewage disposal systems as defined and permitted by Title 5 of the Massachusetts Environmental Code and the Board of Health regulations.
(5) 
Disposal of sanitary sewage to the Town of Barnstable wastewater treatment plant and to other wastewater treatment facilities as defined and permitted by the Massachusetts Department of Environmental Protection.
SITE
Any real estate, personal property, facility, building, structure, installation, equipment, pipe or pipeline including any pipe into a storm drain, sewer or treatment works, well, pit, pond, lagoon, impoundment, ditch, tank, landfill, storage container, or any other place or area to, from or at which toxic or hazardous materials have been stored or discharged.
STORE
The containment of substances or materials in such a manner as not to constitute disposal or use of such substances or materials. Notwithstanding the above, such terms shall not include the maintaining of hazardous materials which are in transit or which are maintained in a fixed facility for a period of less than 30 days during the course of transportation.

§ 108-4 Inventory and registration.

A. 
No owner of a business, home occupation, industry, or operator of a governmental agency shall handle or store acutely hazardous materials and/or hazardous materials in the Town of Barnstable unless he/she is the holder of a registration. Such registration shall include an inventory, the location of the site, the name of the operator, and the name of the owner. The inventory shall include the proposed and/or existing quantities of all acutely hazardous materials and hazardous materials handled or stored on site on the form provided by the Health Department.
B. 
The owner shall describe the storage location of the material safety data sheets on the registration form provided. The material safety data sheets shall be made available upon request of the Health Department and/or the Fire Department.
C. 
There are no minimum quantities that exempt an owner from this section.
D. 
New owners of businesses, home occupations, or industrial establishments who have not previously obtained a registration in accordance with this section shall, if they handle or store acutely hazardous materials and/or hazardous materials, obtain a registration prior to handling or storage at a building or structure and prior to commencing business.
E. 
The registration shall be revised or renewed if there is a change in the inventory, the site, the operator, or the owner.

§ 108-5 Storage controls.

A. 
All acutely hazardous materials and/or hazardous materials shall be stored indoors, unless in product-tight containers which are protected from the elements, leakage, accidental damage, and vandalism. Liquid hazardous materials other than gasoline, which are stored outside, shall be stored above ground in a covered container within a containment area designed to contain a minimum of 110% of the volume of all materials to be stored. For the purposes of this subsection, fertilizer shall be considered as hazardous materials.
B. 
Containers of acutely hazardous materials and/or hazardous materials shall be stored on an impervious, chemical-resistant surface compatible with the material being stored. Provisions shall be made to contain the product in the case of an accidental release.
C. 
Wastes containing acutely hazardous materials and/or hazardous materials shall be held on the premises in product-tight containers and shall be removed and disposed of in accordance with the Massachusetts Hazardous Waste Management Act, Ch. 704 of the Acts of 1979.[1]
[1]
Editor's Note: See MGL C. 21C, § 1 et seq.
D. 
Road salts and other chemicals used for ice and snow removal shall be contained in a structure that provides protection from the elements. The structure shall be constructed in such a way to prevent a release and to prevent leachate from contaminating the groundwater and surface waters.
E. 
Other containers/containment areas may be required as specified or as determined by the Director of Public Health.

§ 108-6 License and contingency plan.

A. 
The Board of Health shall adopt regulations from time to time specifying the hazardous materials and acutely hazardous materials which shall be regulated by licensure, specifying the quantities of such hazardous materials and acutely hazardous materials which shall be regulated by licensure, and specifying the fees for such licenses. The Board of Health may have reference to scientific literature, publications, recommendations and regulations of federal, state, and local regulatory agencies, the expertise and experience of public safety agencies, especially and including Fire Departments. Such a determination will be based upon the ignitability, corrosivity, reactivity, or toxicity of the hazardous materials handled or stored, the amounts of hazardous materials and acutely hazardous materials stored, and the proposed storage location and handling location of the acutely hazardous materials and hazardous materials.
B. 
The Health Department shall enforce such Board of Health regulations. The Health Department shall require, after reviewing the submitted registration information set forth in § 108-4, an owner to obtain an annual license.
C. 
It shall be the responsibility of the owner and/or the operator to apply annually for such license.
D. 
New owners of businesses, home occupations, industrial establishments or operators of governmental agencies who have not previously obtained a license in accordance with this section may be required upon registration to obtain a license prior to handling and/or storage at a building or dwelling and prior to commencing business.
E. 
The owner and/or operator shall submit a contingency plan prior to the issuance of a license by the Health Department. A contingency plan shall meet the requirements set forth below:
(1) 
Submission of the names, addresses, and telephone numbers of the owner, operator, and all other persons responsible for implementation of the contingency plan in the absence of the owner and/or operator.
(2) 
A plan showing where and how all regulated substances shall be stored as described within § 108-5 of this chapter such that the method of containing any accidental release to ensure that all such releases will be totally contained and prevented from reaching any surface or ground waters or into any on-site sewage disposal system, sewer system, catch basin, or dry well. This plan shall also be posted in one of the following on-site locations: guard shack, fire alarm box, sprinkler riser, other location acceptable to the Fire Department. The location of the posting shall be specified.
(3) 
The Health Department and/or the Fire Department may require the owner to provide vacuum suction devices or absorbent scavenger materials be present on site in sufficient magnitude so as to control and collect the total quantity of regulated substances present or may require such devices and materials to be readily available and easily accessible from off-site sources consistent with the contingency plan. Emergency containers shall be of such capacity as to hold the total quantity of regulated substances plus any absorbent material. A plan showing the location of all emergency collection devices shall be provided if the provisions of this section are required.
(4) 
Proper and adequate maintenance of containment and emergency equipment shall be required. Procedures shall be established for inspections performed by the operator and/or the operator's designee(s) once every three months and for the verification of maintenance of containment and emergency equipment. Such procedures shall be in writing, including a regular schedule of maintenance. A log documenting any accidental spills, describing how such spills were handled, describing inspection results, and maintenance shall be kept at the site. Such logs and records shall be available for inspection by the Health Department and/or the Fire Department at all times.
(5) 
The procedures which will be followed in the event of release so as to control and collect all released material in such a manner as to prevent it from reaching any surface or ground waters or into any sewage disposal system, municipal sewer system, catch basin, or dry well. Every operator having knowledge of a release or other loss of acutely hazardous materials and/or hazardous materials shall report the release or loss of same to the Health Department and the Fire Department within one hour of detection. The operator shall ensure the telephone number of the appropriate Fire Department and of the Town of Barnstable Health Department office shall be posted on or adjacent to a telephone located at the site.
F. 
Prior to submission of the contingency plan to the Health Department, approval of that plan must be obtained from the Fire Department.
G. 
Upon receipt of the annual fee, completion of the annual application form designated by the Health Department, upon receipt of a complete inventory, and upon receipt of a satisfactory contingency plan, the Director of Public Health shall issue said license to the operator and the site. Said license shall expire on June 30 and shall be administratively renewed annually upon application and payment of the annual fee.
H. 
The Director of Public Health may grant, suspend, modify, or revoke such license for due cause or failure to comply with any section of this chapter and/or failure to perform the conditions set forth in the contingency plan.

§ 108-7 Appeals.

Any person or persons upon whom any order has been served pursuant to any section of this chapter may request a hearing before the Board of Health by filing a written petition, provided that such petition shall be filed within seven days after the day the order was served. Upon receipt of a petition, the Board of Health shall in writing inform the petitioner of the date, time, and place of the hearing and their right to inspect and copy the Board of Health's file concerning the matter. The hearing shall be commenced not later than 30 days after the date the order was served. At the hearing, the petitioner and other affected parties shall be given an opportunity to be heard, to present witnesses or documentary evidence, and to show why an order should be modified or withdrawn, or why an action by an inspector or other personnel of the Health Department should be reconsidered, rescinded, or ordered. Failure to hold a hearing within the time period specified herein shall not affect the validity of any order. The Board of Health shall sustain, modify, or withdraw the order and shall inform the petitioner in writing of its decision within not more than seven days after the conclusion of the hearing.

§ 108-8 Handling or storage of additional hazardous materials.

A. 
No person shall handle or store any hazardous materials and/or acutely hazardous materials which were not listed on the submitted registration and inventory until after the owner and/or the operator has registered any additional hazardous materials as an amendment to the inventory.
B. 
An operator shall first receive the approval of the owner prior to registering any additional hazardous materials with the Health Department.
C. 
The Health Department may require, after reviewing the submitted amended inventory and other information, the operator and the owner of a business, home occupation, or industry to obtain an annual license if such additional hazardous materials places the applicant under the current licensing regulations of the Board of Health.
D. 
The Director of Public Health may grant, suspend, modify, or revoke such license for due cause or failure to comply with any section of this chapter and/or failure to perform the conditions set forth in the contingency plan.

§ 108-9 Prohibitions.

The release of any hazardous materials and/or acutely hazardous materials upon the ground, or into any surface or ground waters or into any sewage disposal system, sewer system, catch basin, or dry well within the Town of Barnstable, is prohibited.

§ 108-10 Licensure, registration, and inventory requirement exemptions.

Licensure, registration, and reconciliation of inventory requirements shall not apply to the following:
A. 
Fuel oil stored in conformance with Massachusetts fire prevention regulations and regulations of the Barnstable Board of Health for the purpose of heating buildings located on the site.
B. 
Fuel stored in boats, airplanes, trucks, and other vehicles accessory to a residential use.
C. 
Noncommmercial buildings. The handling and storage of hazardous materials at a residential dwelling in quantities which are associated with reasonable household use. This exemption does not apply to a professional or home occupation use as defined by §§ 240-12C(1) and 240-18 of Chapter 240, Zoning. In addition, this exemption does not apply to hotels, motels, interval ownership facilities (time-shares), guesthouses.

§ 108-11 21E report information disclosure.

A. 
The Health Department shall be the repository of information relating to releases of hazardous materials. Any person possessing hazardous material release information has an obligation to submit such information to the Health Department. Every professional engineer and/or other person conducting a 21E report analysis shall submit a copy of the final report to the Health Department within 21 days of completion of the report. Nothing shall contravene with § 12 of Chapter 21E of the Massachusetts General Laws.
B. 
If a person believes that the information required by this chapter involves the release of a trade secret, the person shall nevertheless make the disclosure to the Director of Public Health and shall notify the Director of Public Health in writing of that belief on the inventory document.
C. 
The Director of Public Health and the Fire Chief shall protect from disclosure any trade secret designated as such by the operator.
D. 
Upon receipt of a request for the release of information to the public which includes information of which the operator has notified the Director of Public Health is a trade secret, the Director of Public Health shall notify the operator in writing of the request by certified mail, return receipt requested. The Director of Public Health shall release the information to the public within 10 days of receipt of a written request, but no earlier than three days after the date of mailing the notice of the request for information, unless, prior to the expiration of the ten-day period, the operator files an action in an appropriate court for a declaratory judgment that the information is subject to protection or for an injunction prohibiting disclosure of the information to the public and promptly notifies the Director of Public Health of that action.
E. 
Any information which is confidential pursuant to this and/or § 108-4 shall not be disclosed to anyone except the following:
(1) 
An officer or employee of the Town, county, state, or the United States, in connection with the official duties of that officer or employee under any law for the protection of health, or to a contractor with the Town and their employees if, in the opinion of the Director of Public Health, disclosure is necessary and required for the satisfactory performance of a contract, for performance of work, or to protect the health and safety of the employees of the contractor. Fire and emergency rescue personnel and Health Department personnel operating within the jurisdiction of the Town shall be considered employees of the Town, as the case may be.
(2) 
Any licensed physician where the physician certifies in writing to the Health Department that the information is necessary to the medical treatment of the physician's patient.

§ 108-12 Enforcement.

A. 
The provisions of this chapter shall be enforced by the Health Department. The Health Department may, according to law, enter upon any premises at any reasonable time to inspect for compliance.
B. 
Upon request of the Health Department, the owner, individual identified on a registration or license application, or operator of any premises at which toxic or hazardous materials are used or stored shall furnish all information required to monitor compliance with this chapter. A sample of wastewater disposed to on-site septic systems, dry wells or sewage treatment systems may be required by the Health Department at the operator's expense.
C. 
All records pertaining to storage, removal and disposal of toxic or hazardous wastes shall be retained for no less than five years by the registration holder or license holder, and shall be made available for review by the Health Department upon request.
D. 
The Building Commissioner of the Town of Barnstable shall condition issuance of building and occupancy permits upon conformity with the requirements of this chapter respecting any hazardous materials and/or acutely hazardous materials to be used in the course of such construction or occupancy.

§ 108-13 Notice of violation.

Written notice of any violation of this chapter shall be given by the Health Department, specifying the nature of the violation; any corrective measures that must be undertaken, including containment and cleanup of discharged materials; any preventive measures required for avoiding future violations; and a time for compliance. Requirements specified in such notice shall be reasonable in relation to the public health hazard involved and the difficulty of compliance. The cost of containment and cleanup shall be borne by the owner and operator of the premises.

§ 108-14 Violations and penalties.

A. 
Any person who shall violate any section of this chapter for which penalty is not otherwise provided in any of the General Laws shall upon conviction be fined $300.
B. 
Any person who shall fail to comply with any order issued pursuant to the sections of this chapter shall, upon conviction, be fined $300. Each day's failure to comply with an order shall constitute a separate violation.
C. 
In the alternative to criminal prosecution, the Health Department may elect to utilize the noncriminal disposition procedure set forth in MGL C. 40, § 21d. Noncriminal ticket citation for any violation of any section of this chapter shall be in the amount of $75 for the first violation and $25 for each additional violation. Each day's failure to comply with an order shall constitute a separate violation.
D. 
Further, the Health Department, after notice to and after a public hearing thereon, may suspend, revoke, or modify any license issued hereunder for cause shown.

§ 108-15 Severability.

Each provision of this chapter shall be construed as separate, to the end that if any part of it shall be held invalid for any reason, the remainder shall continue in full force and effect.