[HISTORY: Adopted by the Essex County Board
of Chosen Freeholders (now Board of County Commissioners) 10-23-1996 by Ord. No. O-1996-00023. Amendments noted where applicable.]
This chapter is enacted pursuant to and consistent
with the County Environmental Health Act, N.J.S.A. 26:3A2-21 et seq.,
and the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et
seq., and the rules and regulations adopted thereunder.
The unauthorized and unpermitted discharge of
a hazardous substance within the jurisdictional confines of the County
of Essex is prohibited. This chapter establishes procedures and protocols
for emergency response and provides for the recovery of costs incurred
by the County of Essex and its agents in an emergency response action
to unauthorized and unpermitted discharges and, as such, supplements
the provisions of the Essex County Environmental Health Work Plan
as approved by the Department of Environmental Protection (DEP).
The words and terms used in this chapter shall
have the following meanings:
Includes, for purposes of this chapter, a municipality, public
entity, or other entity which executes an interlocal services agreement
with the County pursuant to the Interlocal Services Act, N.J.S.A.
40:8A-1 et seq., for the purpose of providing emergency response services
within the geographical boundaries of the County, provided that such
agreement is incorporated into the County's Work Plan pursuant to
N.J.S.A. 26:3A2-33.
The County of Essex, its employees, agents, officers and
officials.
The New Jersey Department of Environmental Protection.
An intentional or unintentional action or omission, unless
pursuant to and in compliance with the conditions of a valid and effective
state or federal permit, resulting in the releasing, spilling, pumping,
pouring, emitting, emptying or dumping of a hazardous substance into
the waters or onto the land of the County, or into waters outside
the County, or into waters outside of the County when damage may result
to the lands, waters or natural resources within the jurisdiction
of the County. This definition does not include any leak.
Any action taken by the County, its employees, agents or
contractors in response to a discharge or threatened discharge of
a hazardous substance for the purpose of:
Investigating its cause, source or effect;
Conducting or overseeing a remedial action;
Initiating any action to prevent or mitigate
any risk or threat to public health, safety or welfare arising out
of a discharge; and
Preventing or mitigating any damage or injury
to public or private property or natural resources.
All costs reasonably incurred by the County of Essex, its
employees, agents and contractors in connection with an emergency
response action, including overtime costs for appropriately deployed
emergency response personnel and expendable items. Excluded are costs
to pay volunteer responders and costs associated with firefighting.
Any items used to prevent, mitigate or contain any discharge
or threatened discharge, which cannot be reused or replenished or
replaced without cost after use or employment in an emergency response
action. Expendable items shall include, but are not limited to, chemical
extinguishing agents, absorbents and absorbent materials, sand, recovery
drums, protective equipment and clothing, including such items as
disposable chemical protective suits, gloves, boots, and goggles.
Items not compensable include those items typically employed to fight
fires and not to mitigate a discharge.
All substances included within the definition of "hazardous
substances" under N.J.A.C. 7:1E-1.7, including all amendments and
supplements thereto.
Any of the incorporated municipalities within the County
of Essex, including their employees, officers and officials.
Any escape of a hazardous substance from the ordinary containers
employed in the normal course of storage, transfer, processing or
use, into a secondary containment or diversion system or onto a surface
from which it is cleaned up and removed prior to its escape into the
waters or onto the lands of the state.
With respect to a vessel, any person owning or operating
or chartering by demise such vessel; with respect to any facility
or vehicle, any person or owner operating such facility or vehicle,
whether by lease, contract or any other form of agreement; with respect
to abandoned facilities or vehicles, the person who owned or operated
the facility or vehicle immediately prior to such abandonment; the
owner or operator at the time of the discharge.
Any entity or natural person, including without limitation,
any of the following: public or private corporations, companies, associations,
societies, firms, partnerships, joint-stock companies, individuals,
interstate subdivisions or agents, the State of New Jersey and any
of its political subdivisions or agents.
A person who is in any way responsible for discharge, including
each owner and operator and any other person obligated by law to clean
up and remove contaminants.
The discharge of a hazardous substance is prohibited,
except this prohibition shall not apply to discharges conducted in
compliance with the conditions of valid federal or state permit or
otherwise authorized by law.
Any person who is in any way responsible for
a discharge of a hazardous substance shall immediately notify the
Department pursuant to N.J.A.C. 7:1E-5.3.
Any person who is in any way responsible for
the discharge of a hazardous substance is liable strictly, jointly
and severally for all emergency response action costs reasonably incurred
by the County, its agents, employees, and contractors, and any personal
or property damage incurred by the County, its agents, employees and
contractors.
The County may initiate and conduct an emergency
response action in response to a discharge that has occurred, is occurring
or threatens to occur within the geographical boundaries of the County,
in accordance with the provisions of the Department's Order of Certification
dated January 23, 1995, or such interagency agreement between the
Department and the County as may be executed pursuant to N.J.S.A.
26:3A2-27.
A.
The County may recover all costs reasonably incurred
by the County, its employees, agents and contractors in connection
with an emergency response action, including the overtime costs of
appropriately deployed emergency response personnel, costs incurred
by the County in the recovery of these costs, and the costs of expendable
items.
B.
Demand letter.
(1)
Whenever the County seeks to recover costs pursuant to Subsection A above, the County shall send by certified and regular mail a demand letter to the responsible party or parties, which shall contain:
(a)
The date and time of the discharge.
(b)
The basis for liability.
(c)
A detailed narrative description of the costs
incurred by the County, its employees, agents, contractors and authorized
political subdivisions in responding to the discharge.
(d)
A calculation sheet, including hours and personnel
charged, salary rates and any overhead rates.
(e)
An explanation of the procedures to be followed
to pay the costs demanded or to appeal the demand.
(2)
Payment shall be remitted within 45 days of receipt
of the demand letter.
C.
Whenever the County issues a demand letter to a responsible
party and the responsible party fails to remit payment within 45 days
as prescribed herein, the County may bring an action in a court of
competent jurisdiction to recover the costs incurred in the emergency
response action, reasonable litigation costs and interest on the outstanding
amount due calculated from the 46th day following the receipt of the
demand letter to the date judgment is rendered at the interest rate
set forth in the Rules Governing the Courts of New Jersey.
Authorized representatives of the County shall
have the same right as an authorized representative of the Department
to enter and inspect any premises, facility, site, vessel or building
when there is an emergency condition for the purpose of ascertaining
compliance or noncompliance with the provisions of this chapter and
the provisions set forth at N.J.A.C. 7:1E-1 et seq.
A.
This chapter is to be liberally construed to effectuate
the purposes herein described. Nothing herein is to be construed as
repealing or abridging the emergency powers of any agency of government
except to the extent expressly set forth herein.
B.
This chapter shall be implemented and enforced in
accordance with the terms and conditions herein set forth, the County
Plan, the Department's Order of Certification dated January 23, 1995,
and such interagency agreement between the County and the Department
as may be entered into pursuant to N.J.S.A. 26:3A2-27.
C.
This chapter shall be deemed to include any additions
or amendments that may be required by the Commissioner of the Department
of Environmental Protection as a condition of approval.
Any ordinance or portion thereof enacted by
the County, any municipality, board of health, or other public entity
within the County of Essex that contains any subject matter governed
by this chapter which is inconsistent with or which stands as an obstacle
to the effective implementation of this chapter shall be superseded
by this chapter and is hereby repealed and set aside.
This chapter shall take effect after public
hearing and 90 days after final adoption by the Board of County Commissioners
unless disapproved by the Commissioner of the Department of Environmental
Protection within said period pursuant to N.J.S.A. 26:3A2-27.
