[HISTORY: Adopted by the Township of Howell
as indicated in article histories. Amendments noted where applicable.]
[Adopted by Ord. No. O-90-51, as amended
through Ord. No. O-99-47 (§§ 28-1 through 28-18 of
the 1974 Code)]
The short title of this article shall be the
"Hazardous Substance Ordinance."
The purpose of this article is to provide for
the proper use, handling and storage of hazardous substances within
the Township of Howell and to provide for an effective enforcement
system for the rules and regulations concerning the use, handling
and storage of hazardous substances.
As used in this article, the following definitions
shall have the meanings indicated:
Emergency Management Director or designee/Code Enforcement
Officer.
[Amended 9-13-2022 by Ord. No. O-22-52]
Any building or structure falling under the use group of
"Assembly, Business, Factory/Industrial, High Hazard, Institutional,
Mercantile and Storage" as defined in the BOCA Basic Building Code
(1981 Edition) pursuant to Article 3, Sections 302.1, 303.1, 304.1,
305.1, 306.1, 307.1 and 309.1.
A substance or combination of substances which,
because of its quantity, concentration or physical, chemical or infectious
characteristics, may:
Cause or significantly contribute to an increase
in mortality or an increase in serious irreversible or incapacitating
reversible illness; or
Pose a substantial present or potential hazard
to human health or the environment when improperly treated, stored,
transported or disposed of or otherwise managed.
"Hazardous substances" shall also mean all substances
defined under N.J.A.C. 7:1E-1.3 and listed in N.J.A.C. 7:1E Appendix
A, titled "List of Hazardous Substances," promulgated April 28, 1982,
by the New Jersey Department of Environmental Protection, a copy of
which is on file with the Township Clerk and which is incorporated
herein by reference.
"Hazardous substances" shall also mean:
Petroleum and petroleum products.
All pesticides designated as "prohibited," "restricted"
or "specifically restricted" pursuant to the New Jersey Pesticide
Control Act of 1971 (N.J.S.A. 13:1F-1 et seq.) at N.J.A.C. 7:30-1.5
through 7:30-1.7.
Substances designated as hazardous substances
by the Federal Environmental Protection Agency pursuant to Section
311(b)2(A) of the Federal Water Pollution Control Act, Amendments
of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. § 1321.
Substances designated as toxic pollutants by
Congress for the Environmental Protection Agency, pursuant to Section
307 of the Federal Pollution Act, Amendments of 1972, as amended by
the Clean Water Act of 1977, 33 U.S.C. § 1317.
Any other substances listed in Appendix A.
Any substance defined as a hazardous substance
in Section 101(14) of the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601(14),
and hazardous wastes as defined in Section 1004(5) of the Resource
Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6903(5),
and as identified by the United States Environmental Protection Agency
pursuant to Section 3001 of RCRA.
Also referred to as a "disclosure form," and any amendments,
modifications and supplements thereto, shall mean the Department of
Environmental Protection Form No. DEQ-94 or a form prepared by and
made available from the Township of Howell's Department of Administration. [1]
[1]
Editor's Note: The Hazardous Substances Disclosure
Form is on file in the Borough offices and is available on the Borough's
website.
Hazardous substances shall only be used, stored
or handled pursuant to and in accordance with the BOCA Basic Fire
Prevention Code (1981), the Life Safety Code NFPA 101 (1981) and the
Resource Conservation and Recovery Act of 1976 (RCRA) of which codes
not fewer than three copies are on file in the office of the Clerk
of the Township of Howell, the office of the Construction Code Official
of the Township of Howell and the office of the Board of Health and
the same are hereby adopted and incorporated as if fully set forth
at length herein.
It shall be unlawful for any person, corporation or partnership to store, use or handle hazardous substances within or surrounding a facility located within the Township without first completing the hazardous substances disclosure form on an annual basis. The term "facility" is defined pursuant to § 168-3 of this article. The disclosure form shall be mailed by the Department of Administration to all persons, corporations or partnerships who or which are affected by the provisions of this article. It shall be the responsibility of all persons, corporations or partnerships to complete the disclosure form and return it with the annual fee within 30 days from the date of receipt thereof.
A.
All facilities which use, store or handle hazardous substances shall allow any authorized enforcement officials, as defined under § 168-3 of this article, upon the presentation of credentials and other documents as may be required by law, to:
(1)
Enter upon the premises where hazardous substances
exist or might be located or records required are kept, for purposes
of inspection, sampling, copying or photographing. Photography shall
be allowed only for purposes related to this article.
(2)
Have access to any copy, at reasonable times, of any
records that must be kept pursuant to the requirements of this article.
(3)
Inspect, at reasonable times, any facilities, equipment
(including monitoring and control equipment), practices, or operations
regulated or required under this article.
(4)
Take samples or monitor, at reasonable times, for
the purpose of assuring compliance with this article.
B.
Any refusal by the facility landowner(s), facility
lessee(s), their agents, or any other person(s) with legal authority
to allow entry to the authorized enforcement official shall be a violation
of this article.
C.
The facility landowner(s), facility lessee(s), their
agents, or any other person(s) with authority over such facility shall
provide access to authorized enforcement officials upon reasonable
notice to determine the extent of compliance with any and all requirements
of this article. The enforcement official obtaining entry after such
notice shall not be chargeable for civil or criminal trespass.
A.
It shall be the responsibility of any person, corporation or partnership who or which stores hazardous substances to file a completed disclosure form and pay the established fee therefor to the Township on an annual basis. The date on which the disclosure form is first completed shall serve as the anniversary date for subsequent filings. Said form shall be completed within 30 days from the date of receipt. The annual filing fees for the storage of substances pursuant to the provisions of this article shall be as set forth in Chapter 139, Fees.[1]
B.
This fee schedule is for filing fees and storage disclosure
within the building or property. The annual fees set forth above shall
be payable to the Township of Howell by check or money order and shall
accompany the disclosure form, which shall be filed with the Township's
Department of Administration. All fees collected pursuant to this
article shall be dedicated to the Howell Township Office of Emergency
Management (HTOEM) Trust Account.
[Amended 9-13-2022 by Ord. No. O-22-52]
Any time that any person, corporation or partnership who or which stores hazardous substances changes the reported storage area in any way, or the volume or type of hazardous substances, or the method of handling or storing said hazardous materials, the Code Enforcement Officer shall be notified by telephone within 24 hours of the change. In addition, a new hazardous substances disclosure form shall be completed with the payment of a revised storage fee which shall reflect the difference between the original fee and the new fee required in accordance with the fee schedule set forth in § 168-8. The revised disclosure form and fee shall be filed with the Department of Administration within 70 days from the date of telephone notification to the Emergency Management Director or designee/Code Enforcement Officer.
It shall be the responsibility of the Township's
Department of Administration to coordinate the implementation and
administration of this article. The Department of Administration shall
serve as the central repository for the completed disclosure forms.
It shall be the responsibility of said Department to provide copies
to the following departments and agencies:
A.
Police Department.
B.
Health Department.
C.
Office of Emergency Management Services.
D.
Construction Code Official.
E.
Bureau of Fire Prevention Inspectors.
F.
Adelphia Water and Sewer Company.
G.
Howell Township Municipal Utilities Authority.
H.
Maxim Water and Sewer Company.
I.
Ocean County Utilities Authority.
J.
Brick Township Municipal Utilities Authority.
K.
New Jersey Water Supply Authority.
The annual filing fee for storage of hazardous
substances pursuant to the provisions of this article shall be waived
for the following types of facilities:
It is not necessary to include materials into
the inventory required by the disclosure form which are purchased
in normal retail quantities, packaged in consumer packaging, and used
for the normal operation and maintenance of the offices, buildings
and grounds at a facility (e.g., touch-up paints, fire extinguishers,
cleaners, and office and janitorial supplies). Materials received
in bulk, rather than retail, packaging (e.g., certain dyes, solvents
or pesticides) shall be disclosed on the disclosure form.
Whenever additional inspections of a facility,
as defined herein, are necessitated by reason of an unsatisfactory
initial inspection, the facility landowner(s), facility lessees(s),
their agents, or any other person with legal authority over such facility
shall be assessed, and the Township of Howell shall be reimbursed
thereby, for the cost of such inspections at the rate of $50 per hour
or part thereof. These costs may be made a lien and special assessment
against the parcel of land on which the business is located, but implementation
of such an assessment procedure shall not be the exclusive remedy
of the Township for recovery of such costs.
[Amended 9-13-2022 by Ord. No. O-22-52]
Whenever a person, corporation or partnership
who or which handles hazardous substances intends to cease, or ceases,
doing business at a facility, such entity shall immediately notify
the Township of Howell Code Enforcement Officer, Health Officer, or
Emergency Management Director/designee.
Information provided in the hazardous substances
disclosure form shall be deemed a public record subject to inspection
and copying, except where the information involved is a trade secret
or is otherwise excepted or protected under law from requirement of
public disclosure.
A.
Identification.
(1)
If a person, corporation or partnership believes information
contained in a disclosure form requested involves a trade secret which
such entity wishes to protect from public dissemination, such entity
shall identify or list on an additional and separate page of the hazardous
substances disclosure form, conspicuously marked or labeled as containing
trade secret information, the hazardous substance or other information
that it claims should be protected as a trade secret. The trade secret
information shall not be set forth in any other part of the application.
(2)
Within 60 days of filing a hazardous substances disclosure
form in which a person, corporation or partnership has claimed a trade
secret, such entity shall file with the Township a written substantiation
of the trade secret claim. It shall also file with the Township a
signed written agreement in a form acceptable to the Township Attorney
which indemnifies the Township for the Township's litigation expenses
and costs, if any, and for any awards of damages and any attorneys'
fees arising out of litigation resulting from a Township refusal to
disclose information claimed by the business to be a trade secret
in the event such nondisclosure is found by a court of competent jurisdiction
to be unwarranted.
C.
Disclosure to public officers and employees. Trade
secret information obtained by the Township may be disclosed to an
officer or employee of the Township of Howell or other public entity,
provided that such disclosure is in connection with the official duty
of such officer or employee under any fire suppression, health, safety
or environmental law. Trade secret information may be disclosed to
Township contractors and to their employees if in the judgment of
the Township Administrator such disclosure is necessary for the performance
of a contract with the Township and to protect the health or safety
of the employees of the contractor.
D.
Acknowledgment of receipt. Recipients of trade secret information pursuant to Subsection C of this section must file with the Township, at the time of receipt of such information, a completed, dated and signed written acknowledgement of receipt of said trade secret information. The acknowledgement shall state that the individual signing it is aware of the confidentiality of the information received and the restrictions on its use and dissemination as set forth in this section.
E.
Disclosure for medical purposes. Trade secret information
may be disclosed to a paramedic or medical doctor by the Township
when necessary for the purposes of treating a patient, so long as
the paramedic or doctor is first advised that any disclosure of the
information which is not necessary for the treatment of the patient
would constitute a violation of this article.
F.
Penalty for unauthorized disclosure. A person in possession
of trade secret information disclosed to the Township pursuant to
this article who knowingly makes further disclosure thereof to any
person not entitled to receive such information shall be guilty of
a violation of this article.
G.
Disclosure pursuant to Public Records Act. The Township,
upon receipt of a written request under the Public Records Act[1] from any person for the disclosure of information which any person, corporation or partnership has notified the Township it seeks to protect as a trade secret pursuant to Subsection A of this section, shall notify such entity within two working days of such request by personal service or by certified mail, return receipt requested, that a request for disclosure of trade secret information has been received by the Township. The Township shall also inform such entity that it should immediately file the written substantiation of its claim of trade secret required by Subsection A of this section, if it has not already done so, and any other relevant information it may wish to file with the Township. Upon receipt of a request for disclosure of trade secret information, the Township shall forward a copy of the request, together with any substantiation of the trade secret claim and the Township's proposed determination, to the Township Attorney for review and comment.
[1]
Editor's Note: See N.J.S.A. 47:1A-1 et seq.
H.
National defense classification. Information certified
by an appropriate official of the United States as classified for
national defense purposes shall be accorded whatever protection against
disclosure is directed by such official as specified by applicable
federal law.
A.
A nuisance exists where a person, corporation or partnership handles a hazardous substance which has not been disclosed as required by § 168-5 of this article. If a business is not in compliance with the requirements of said § 168-5, then the Township may recover the costs of obtaining the necessary information concerning the handling of hazardous substances by the business, together with any administrative costs and fees, as a lien and special assessment against the parcel of land on which the business site is located.
B.
In the event such nuisance exists, the enforcement official shall give notice to the on-site manager and the owner of such entity, as well as the property owner, that such person, corporation or partnership must immediately file a completed hazardous substances disclosure form as required under § 168-5. The notice shall state that if the disclosure form is not so filed the enforcement official may conduct a special inspection or other action necessary to obtain the required information concerning the handling of hazardous substances at the site, that the costs of obtaining such information together with any administrative costs and fees may become a special assessment against the parcel, and that upon Township Council confirmation of the assessment and recordation of such an order a lien will be attached to the subject property to be collected on the next regular property tax bill.
C.
In the event a hazardous substances disclosure form
is not filed as so required, the enforcement official may conduct
a special investigation or the appropriate action necessary to obtain
information concerning the handling of hazardous substances at the
site.
Any person, corporation, partnership or facility
violating this article shall be subject, upon conviction in the Municipal
Court, to a fine of not more than $1,000 and/or imprisonment up to
90 days. Each day that a particular violation continues shall constitute
a separate violation.
[Adopted by Ord. No. O-98-21 (§ 28-19
of the 1974 Code)]
This article is enacted pursuant to N.J.S.A.
40:42-1 et seq., the Home Rule Act, which directs municipalities to
act to provide for the health, welfare and safety of their citizens.
As used in this article, the following terms
shall have the meanings indicated:
The Township of Howell.
Any intentional or unintentional action or omission resulting
in the releasing, spilling, leaking, pumping, pouring, emitting, emptying
or pumping of hazardous substances into any waters which flow within
the jurisdiction of the Township or any land within the jurisdiction
of this Township or into the waters or land outside the jurisdiction
of the Township when damage may result to the people, lands, waters,
or natural resources within the jurisdiction of the Township.
Any items used to extinguish or prevent any hazardous material
or fire or stop or contain any leak, release or spill involving any
hazardous material which cannot be reused or replenished without cost
after that particular incident. These expendable items include, but
are not limited to, fire-fighting foam, chemical extinguishing agents,
absorbent materials, sand, recovery drums, and any protective equipment
and clothing, to include but not be restricted to chemical protective
suits, gloves, boots, goggles and any other item owned or controlled
by the Township of Howell or owned or controlled by any volunteer
organization or other municipal organizations rendering assistance.
Any material, solid, liquid or gas, listed as a hazardous
substance or material, including but not necessarily limited to the
NFPA Guide of Hazardous Materials, the Department of Transportation
Guide Book, the list of hazardous substances and toxic pollutants
designated by the Federal Environmental Protection Agency (EPA) and
the New Jersey Department of Environmental Protection pursuant to
Section 311 of the Federal Water Pollution Control Act, Amendment
of 1972, as amended by the Clean Water Act of 1977 (33 U.S.C. § 1251
et seq.) and the list of toxic pollutants designated by Congress or
the EPA pursuant to Section 307 of the Federal Water Pollution Control
Act, and hospital or medical waste, including but not limited to syringes,
bandages and discarded pharmaceutical products and any material warranting
removal or cleanup in the opinion of the Howell Township Office of
Emergency Management.
Includes the Township of Howell's employees, agents, officers,
officials and supporting units as directed by the Office of Emergency
Management.
Any motorized equipment, registered or unregistered, including
but not limited to a passenger car, motorcycle, truck, tractor trailer,
construction equipment, farm machinery, watercraft, aircraft, and
trains.
Any container, drum, box, cylinder, bottle or tank used to
hold, contain, carry or store any hazardous materials, whether or
not said container was manufactured for the containment of hazardous
material.
Any duly incorporated volunteer fire, ambulance, first aid,
emergency or rescue company or squad.
A.
This article provides for the reimbursement for the
expenses incurred by the Township of Howell, any and all volunteer
organizations, as defined above, and all persons rendering both volunteer
and nonvolunteer services from other local municipalities for the
use of their vehicles, expendable items and equipment and for the
wages (both regular and overtime) paid to their employees, agents,
servants, and those persons from local municipalities who render nonvolunteer
services as a result of an incident involving a hazardous material
fire or leak, release or spill of a hazardous material and for the
costs of medical and hospital treatment for injuries incurred by agents,
servants, and employees of the Township of Howell as well as those
persons who render voluntary service as part of a volunteer organization
and/or nonvoluntary service for the Township of Howell as a result
of the incident.
B.
C.
This article also provides a penalty for the violation
of the article for either committing a spill or for failure to report
the same.
A.
The discharge of hazardous substances is prohibited
within the Township. This article shall not apply to discharge of
hazardous substances pursuant to and in compliance with the conditions
of a federal or state permit.
B.
Any person who may be subject to liability for a discharge
or who becomes aware of a discharge which occurred prior to or after
the effective date of this article shall immediately notify the Township
of Howell Office of Emergency Management at the Municipal Engineering,
Planning and Code Building during normal business hours or through
the Howell Township Police Department after business hours.
C.
Whenever any hazardous substance is discharged, the
Township may, in its discretion, act to remove or arrange for the
removal of such discharge.
D.
Any person who has discharged a hazardous substance
or who has failed to report a discharge or who is in any way responsible
for any hazardous substance which has been or shall be removed by
the Township shall be strictly liable, jointly and severally, without
regard to fault, for all cleanup and removal costs and shall be liable
for the costs associated with the use of Township or volunteer organization
vehicles, expendable items and equipment and for the wages (regular
and overtime) paid to Township employees, agents, and servants and
those persons from local municipalities who render nonvolunteer services
as a result of an incident involving a hazardous material fire or
leak, release or spill of a hazardous material and for the costs of
medical and hospital treatment for injuries incurred by agents, servants
and employees of the Township of Howell as well as those persons who
render voluntary service as part of a volunteer organization and/or
those persons who render nonvoluntary service for the Township of
Howell as a result of the incident.
Reimbursement to the Township for expendable
items used shall be made by the owner or operator of the vehicle responsible
for any hazardous material fire or leak or spill of hazardous material;
the owner or person responsible for the vessel containing the hazardous
material involved in such fire, leak or spill on public or private
property, whether stationary or in transit and whether accidental
or through negligence; the owner or person responsible for any property
from which any leak or spill of hazardous material emanates, whether
accidental or through negligence; and any person responsible for any
hazardous material fire, leak or spill of hazardous material on public
or private property, whether accidental or through negligence.
Any person causing any hazardous material fire
or leak, spill or release involving a hazardous material must provide
reimbursement for services rendered by any recovery company, towing
company or any other technical assistance called for by the Township
to handle such incident. In the event of a vehicle having been responsible
for an incident, such vehicle shall be impounded until such time as
it has been deemed safe to proceed by the responsible official in
conjunction and cooperation with the Township of Howell and until
such time arrangements have been made to reimburse the Township and
the towing company for their expenditures under the terms of this
article.
The person or entity responsible for any fire,
leak or spill of hazardous materials shall reimburse the Township
the full price of expendable items and costs used to extinguish such
fire, or to stop or contain such leak, or to control such spill, within
15 days after receipt of a bill therefor. The collections agency shall
utilize its bests efforts to collect costs hereunder and shall reimburse
its agents or the local units for amounts collected. In the event
that the collection agency is not able to collect said costs or only
a portion thereof, the collection agency shall not be responsible
to its agents or the local units for the full amount of the same.
The person or entity responsible for any fire,
leak or spill of hazardous material who or which fails to reimburse
the Township within the time required shall be subject to a fine of
not less than $300 nor more than $500 per day or to imprisonment for
a period of not more than six months, or both. The person or entity
responsible for committing a spill, or who or which fails to report
the same, will be liable for the same penalties as aforesaid stated.
[Amended 3-7-2017 by Ord.
No. O-17-05]
The Township of Howell, through its chief financial
officer, shall be authorized to open a bank account titled "Howell
Township Office of Emergency Management Trust Account," and funds
received from those persons or parties responsible for the hazardous
material fire or leak or spill of hazardous material; the owner or
person responsible for the vessel containing the hazardous material
involved in such fire, leak or spill on public or private property,
whether stationary or in transit and whether accidental or through
negligence; the owner or person responsible for any property from
which any leak or spill of hazardous material emanates, whether accidental
or through negligence; and any person responsible for any hazardous
material fire or leak or spill of hazardous material on public or
private property, whether accidental or through negligence, shall
be deposited into this account and used for reimbursement purposes,
as well as for training, education, enforcement and equipment and
equipment needs related to hazardous materials response or remediation.
