[HISTORY: Adopted by the Board of Health
of the Town of Walpole effective 3-28-1991. Amendments noted where applicable.]
This regulation is adopted by the Board of Health
under MGL c. 111, § 31, which gives the Board authority
to make reasonable health regulations, violations of
which are punishable by fines. This regulation also is adopted under
MGL c. 111, § 122, which directs the Board to examine into
all nuisances, sources of filth, and causes of sickness within the
Town which may be injurious to the public health, to destroy, remove,
or prevent them, and to make regulations for the public health and
safety relative thereto, with violations to be punishable by fines.
A.
These regulations are intended to protect the public
health and safety relative to risks and potential risks posed by hazardous
waste contamination and threats of contamination of air, land, surface
water, soil, groundwater, wetlands, drinking water, or other resources.
For this purpose, the regulation requires any owner or operator of
a contaminated site to disclose to the Board the presence of such
contamination; to describe assessment, containment, removal, or other
response actions; and, if deemed appropriate by the Board, to conduct
these response actions prior to new construction or expansion or alteration
of existing structures, or upon appropriate terms. This regulation
supplements federal and state hazardous waste contamination cleanup
laws in order to have the Board informed of contaminated cleanup sites
and to require appropriate cleanups and other actions when there are
releases or threats of releases of hazardous wastes. The Board may
impose requirements independent of those imposed by federal or state
law. These requirements may be the same as under federal or state
law, or stricter, but they may not be less strict.
B.
This regulation is necessary for the Board to ensure
protection of the public health and safety by obtaining timely notice
of hazardous waste releases and potential releases; establishing the
nature and extent of releases; identifying the types and quantities
of hazardous wastes present; evaluating the hazards posed to the public
or private health and safety; compiling in a central location the
information of these hazards; identifying the parties responsible;
deciding what public or private actions are appropriate; preventing
or minimizing releases that may cause or threaten danger to the present
or future public health and safety; avoiding improper or inadequate
cleanup, limiting exposure to persons and property; anticipating residential,
commercial, or industrial uses of property or other activities which
may increase exposure or make response actions more difficult; deciding
what interim and permanent measures to assess, contain, and clean
up waste are appropriate; verifying compliance with Board requirements;
and coordinating with other local boards, agencies, and officials
relative to releases and threats of releases.
As used in this chapter, the following terms
shall have the meanings indicated:
A waste, material, product, substance, or combination thereof,
in whatever form, which poses a present or potential threat to human
health or safety, welfare, or the environment because of its quantity,
concentration, physical, chemical, corrosive, flammable, reactive,
toxic, infectious, or radioactive characteristics, either separately
or in combination, which has been released to the environment whether
intentionally or otherwise. Any waste, material, product, or substance
deemed hazardous under the Massachusetts Hazardous Waste Management
Act, MGL c. 21C, the Massachusetts Superfund Act, MGL c. 21E, the
Resource Conservation and Recovery Act (RCRA), 42 United States Code
§ 6901 et seq., or the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), known as "Superfund", 42
United States Code § 9601 et seq., as these statues may
be amended, shall be deemed a hazardous waste for the purpose of this
regulation. Hazardous waste shall include oil, which shall mean insoluble
or partially soluble oils of any kind or origin or in any form, including,
without limitation, waste oils, crude or fuel oils, lube oil or sludge,
fresh asphalt, and derivatives or mineral, animal, or vegetable oils.
Any person who is responsible for operation of a site. The
term shall not include a person who, without participating in the
management of a site, holds indicia of ownership primarily to protect
his security interest in said site. In the case of an abandoned site,
the term "operator" means any person who operated such site immediately
prior to such abandonment.
Any person who has effective control or legal ownership of
a site. The term shall not include a person who, without participating
in the management of a site, holds indicia of ownership primarily
to protect his security interest in said site. For the purpose of
this regulation the Board shall be entitled to rely upon the most
current list of owners in the records of the Town Board of Assessors
as providing sufficient evidence of ownership under this regulation.
In the case of an abandoned site, the term "owner" means any person
who owned such site immediately prior to such abandonment.
Any agency or political subdivision of the federal government
or the commonwealth, any state, public or private corporation or authority,
individual, trust, firm, joint-stock company, partnership, association,
or other entity, and any officer, employee, or agent of such person,
and any group of persons.
Any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing
into the environment. The term shall not include any emissions from
the exhaust of an engine; release of source, by-product, or special
nuclear material from a nuclear incident if such release is subject
to requirements with respect to financial protection established by
the Nuclear Regulatory Commission; the normal application of fertilizer;
the application of pesticides consistent with their registrations,
labeling, and instructions; any emissions from a point source of air
pollution in compliance with a permit under the Federal Clean Air
Act, 42 United States Code § 7401 et seq., and the Massachusetts
Clean Air Act, MGL c. 111, §§ 142A through 142H; and
any release from a point source of water pollution in compliance with
a permit under the Federal Clean Water Act, 33 United States Code
§ 1251 et seq., and the Massachusetts Clean Water Act, MGL
c. 21, § 43, as these statutes may be amended.
Any real estate, personal property, facility, activity, building,
structure, installation, equipment, pipe or pipeline including any
pipe into a storm drain, sewer or publicly owned treatment works,
well, pit, pond, lagoon, impoundment, ditch, tank, landfill, storage
container, motor vehicle, rolling stock, vessel, or aircraft, or any
other place or area to, from, or at which hazardous waste, including
oil, has been released. The term shall not include any consumer product
in consumer use.
A substantial likelihood of a release.
A.
Any owner or operator of a site, as soon as he has
knowledge of a release or threat of release of hazardous waste, including
oil, shall immediately notify the Board thereof. Said notice shall
be in writing by hand delivery to the office of the Board, its current
agent, the current Chairman, or by certified mail, return receipt
requested. A copy of said notice shall be provided at the same time
to the Fire Department.
B.
Any owner or operator of a site, as soon as he has
received from the Massachusetts Department of Environmental Quality
Engineering (DEQE) any administrative or enforcement order of notice
of responsibility under MGL c. 21E, compelling assessment, containment,
or removal of hazardous waste, including oil, shall immediately notify
the Board and Fire Department in the same manner as set forth above.
C.
Any owner or operator of a site, as soon as he has
received knowledge that the site is listed as a possible or confirmed
disposal site on the quarterly list of such sites published by the
DEQE under MGL c. 21E, § 3A(b), shall immediately notify
the Board and Fire Department in the same manner as set forth above.
Once such notice has been given, it need not be repeated although
such site is listed on subsequent quarterly DEQE lists.
A.
For any site for which notice to the Board is required
by this regulation, before or after such notice is given, the Board
may impose such requirements as it deems appropriate to protect the
public health, safety welfare, and the environment. Such requirements
may include, but are not limited to:
(1)
Compelling submittal of real estate assessment reports;
site investigation reports; feasibility studies; remedial action plans;
technical report; copies of correspondence with the United States
Environmental Protection Agency (EPA), DEQE, or other agency; copies
of administrative orders, enforcement orders, violation notices, notices
of noncompliance, or penalty assessment notices issued by EPA, DEQE,
or other agency; copies of permits issued by EPA, DEQE, or other agency;
plans of the site; and any other document deemed appropriate by the
Board for performance of its duties or implementation of its authority
under this regulation;
(2)
Ordering any owner or operator to perform assessment,
containment, or removal activities on or off the site;
(3)
Ordering any owner or operator to cease-and-desist
any construction, alteration of existing structures, regarding of
land, or other land development activity prior to assessment, containment,
or removal in accordance with the requirements of the Board; or
(4)
Notify any owner or operator of any violation of this
regulation or any order issued thereunder and seeking compliance.
Should a site be transferred to new ownership or operation, the Board
may impose requirements on the new owner or operator, who shall, with
the previous owner or operator, be responsible for compliance with
these regulations.
B.
The Board may, when it deems necessary, retain the
services of consultants to assist it in carrying out the intent of
these regulations. Said consultants shall be authorized to go on the
premises in question and conduct all studies, tests, or surveys as
directed by the Board.
C.
The Board may require the owner to engage the services
of duly qualified environmental engineers or environmental consultants,
whose qualifications are satisfactory to it, to prepare and submit
to the Board such proposals, recommendations and evaluations as the
Board shall require to assist it in carrying out the intent of these
regulations. Owner shall bear the costs of such work.
A.
The Board may vary the application of any provision
of this regulation, unless otherwise required by law, in any case
where the Board deems it appropriate, upon a demonstration by the
applicant for a variance, in writing, on the public record, that an
equivalent or higher degree of protection of the public health and
safety, than that required by this regulation, will be achieved. The
applicant at his own expense shall notify all abutters by certified
mail, return receipt requested, at least 10 calendar days before the
Board meeting at which the variance request is to be considered. Said
notice shall state the variance sought, the reasons therefor, and
where copies of the variance may be obtained, without charge.
B.
Any variance granted by the Board shall be in writing
and shall include findings of fact and conclusions of law necessary
to support the variance. Any denial of a variance by the Board shall
be in writing and shall contain a brief statement of the reasons for
the denial.
The Board and its agents may enter upon privately
owned property for the purpose of implementing and enforcing the provisions
of this regulation, subject to the limitations imposed by the Constitutions
of the United States and the Commonwealth of Massachusetts.
The Board may issue administrative orders, enforcement
orders, violation notices, requests for compliance, and other documents
and correspondence to enforce the provisions of this regulation. The
Board may pursue criminal prosecution or civil litigation or both
in the courts of the Commonwealth of Massachusetts to enforce the
provisions of this regulation.
Violation of this regulation shall be punished
in a criminal prosecution by a fine up to $200, under MGL c. 111,
§ 31, and by a fine up to $100 under MGL c. 111, § 122.
Each day or portion thereof that a violation continues shall be deemed
a separate violation.
Actions of the Board under this regulation may
be appealed to the courts of the Commonwealth in the nature of certiorari,
pursuant to MGL c. 249, § 4.
If any provision of this regulation is declared
unlawful by a valid judgment or decree of any court of competent jurisdiction,
such invalidity shall not affect any of the remaining provisions of
this regulation.
At such times as the Board may retain the services
of consultants, environmental engineers, environmental consultants,
or other professionals to undertake assessment, containment, or removal
action regarding the release or threat of release of oil or hazardous
material at a site, or to assist the Board in planning, managing,
directing, performing, overseeing, or monitoring a response action
taken by an owner or other responsible party, the Board shall be entitled
to charge a fee for such services to the owner or any other responsible
party for the cost of such activities in accordance with MGL c. 21E,
§ 4.
This regulation shall take effect upon publication in a newspaper
published in this Town, on December 11, 1990.
