[Amended 11-12-2024 STM by Art. 8]
No land within the Town of Whately may be used for the collection, treatment, storage, burial, incineration or disposal of radioactive wastes, including but not limited to low-level waste.
[HISTORY: Adopted by the Town Meeting of the Town of Whately as indicated in article histories. Amendments noted where applicable.]
[Adopted 9-30-1981 STM by Art. 2]
[Adopted 4-25-1987 ATM by Art 56]
This article is adopted by the Town of Whately under its home rule powers, its police powers to protect the public health, safety and welfare and its authorization under MGL c. 40, § 21, and c. 148, § 9.
A.
The purpose of this article is threefold:
(1)
Through regulations, to specify conditions for permissible handling, storage and disposal of hazardous materials in Whately in order to protect, preserve and maintain the existing and potential groundwater supply, groundwater recharge areas and surface water supply within the Town from contamination with toxic or hazardous materials.
(2)
To protect public health from contamination of public and private water wells due to leakage from underground storage facilities.
(3)
To protect public safety from the dangers of toxic exposure, fire and explosion associated with such leakage.
B.
Nothing in this article shall be construed as inconsistent with or interference with the authority vested upon the Whately Fire Chief under Chapter 148 of the General Laws or the rules and regulations adopted pursuant thereto. Nothing shall be construed as interference with the viability of agricultural operations.
This article shall apply to all premises located in whole or in part within the Town of Whately. Exemptions to this article shall be:
A.
Heating oil or waste oil used as fuel, stored below ground level in a freestanding container within a building, or propane fuel, heating oil or waste oil used as fuel stored aboveground in conformance with Massachusetts Fire Prevention Regulations, in particular 527 CMR 1.
[Amended 11-12-2024 STM by Art. 8]
B.
Motor fuel in vehicle tanks for the sole purpose of propulsion of that vehicle.
As used in this article, the following terms shall have the meanings indicated:
Massachusetts Fire Prevention Regulations concerning tanks and containers, both aboveground and underground.
The accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, incineration or dumping of toxic or hazardous material upon or into any land or waters of the Town of Whately so that such material may enter the environment or be emitted into the air or discharged into any waters, including groundwaters. "Discharge" includes, without limitation, leakage of such materials from failed or improperly discarded containers or storage systems and disposal of such materials into any on-site sewage disposal system, dry well, catch basin or unapproved landfill. The term "discharge," as used and applied in this article, does not include the following:
Proper disposal of any material in a sanitary industrial landfill that has received and maintained all necessary legal approvals for the purpose.
Applications of road salts in conformance with the snow and ice control program of the Massachusetts Department of Transportation.
[Amended 11-12-2024 STM by Art. 8]
Disposal of sanitary sewage to subsurface sewage disposal systems, as defined and permitted by Title 5 of the Massachusetts Environmental Code.
Application of fertilizers and pesticides in accordance with label recommendations and with regulations of the Massachusetts Pesticide Board.
Any structure used or designed to be used for the storage of hazardous materials of any kind.
Any material in whatever form which, because of its quantity, concentration, or chemical, corrosive, flammable, reactive, toxic, infectious or radioactive characteristics, either separately or in combination with any other substance or substances, constitutes a present or potential threat to human health or to water supplies or to the environment when improperly stored, treated, transported or improperly disposed into or on any land or water in this Town. "Toxic or hazardous materials" also means pesticides, herbicides and fungicides, as well as all liquid hydrocarbon products, including but not limited to gasoline, fuel and diesel oil. "Toxic or hazardous materials" shall mean material, including but not limited to any material or substances controlled as being toxic or hazardous by the provisions of Chapter 21C of the General Laws or defined as a hazardous substance by Section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9605), as amended.
Ground level, but shall not include storage for heating purposes in a freestanding container within a building.
A.
The discharge of toxic or hazardous materials within the Town of Whately is prohibited. The term "discharge" is defined in § 95-5.
B.
Outdoor storage of toxic or hazardous materials is prohibited, except when required by fire safety regulations or except in product-tight containers which are protected from the elements, leakage, accidental damage and vandalism and which are stored with all applicable requirements of § 95-9, which describes general handling, and in compliance with all fire safety regulations.
C.
New installation of underground toxic or hazardous materials storage systems, with the exception of gasoline, diesel fuel, propane and fuel oil, is prohibited.
D.
New installations of underground fuel storage tanks, including heating fuels and gasoline, for the exclusive purpose of residential use are prohibited. This prohibition shall not apply to underground fuel tanks for agricultural uses. It shall not apply to fuel tanks serving both residential and agricultural purposes. Replacement tanks for existing residential and/or agricultural tanks shall be permitted if designed according to the construction specifications of 527 CMR 1 (Massachusetts Fire Prevention Regulations). This prohibition does not apply to fuel stored below ground level in a freestanding container.
A.
General requirement.
(1)
Every owner or operator of a commercial or industrial establishment, including home occupations and agricultural and horticultural operations, and owners of residential underground storage tanks, storing hazardous materials in accumulated quantities totaling 50 gallons' liquid or 100 pounds' dry weight or more for a period of six months or more and/or required to register with the commonwealth under provisions of 310 CMR 30 (Hazardous Waste Regulations) or subsequent equivalent regulations currently in effect shall register with the Board of Health or designated agent. All products in quantities greater than or equal to five gallons or two pounds should be added in the combination to reach 50 gallons or 100 pounds. Registration shall be on a form provided by the Board of Health.
(2)
Registrants shall register the types of hazardous materials being stored, the number and size of tanks and the material of tank construction, the estimated number of containers or bags, the estimated quantities stored, the estimated age of underground tanks, the method of disposal of said hazardous materials and the location on the premises shown on a sketch or diagram, including distances to the nearest water supply on the owner's premises and adjacent properties. A description of measures proposed to protect the materials from vandalism, corrosion, and leakage and measures to provide for spill prevention, control and countermeasures shall also be included.
(3)
The Board of Health is authorized to require the registrant to provide a more detailed list than is provided for on the registration form if needed for determination of risk to public health.
(4)
There shall be a fee of $10 for registration. This registration shall be in addition to any permits previously applied for. As of the date of passage of this subsection, any permit application filed subsequent to that date with the Fire Department for the installation of a new or replacement underground storage tank will serve as the registration form required in this subsection.
[Added 4-25-1990 ATM by Art. 18]
(5)
Upon registration, the Board of Health will provide the owner or user a flag with which to identify the tank as duly registered. This flag must be prominently displayed at the fill pipe.
[Added 4-25-1990 ATM by Art. 18]
(6)
As of this date (April 25, 1990), any party that puts materials into an underground storage tank which does not display a flag certifying that the tank has been duly registered with the Board of Health must notify the Board of Health within 48 hours of such delivery. Such notification will include the name of owner of tank, street address, size of tank and substance provided.
[Added 4-25-1990 ATM by Art. 18]
B.
Retail commercial enterprises selling hazardous or toxic materials in containers of less than 30 gallons' liquid weight and 25 pounds' dry weight are exempt from the registration requirements of Subsection A.
C.
Registration required by Subsection A shall be initially submitted within 90 days of the effective date of this article and annually thereafter within 30 days of May 1 of each year, with the exception of owners of residential and agricultural underground storage tanks, who are required to register only once.
D.
Owners or operators of commercial or industrial establishments who have not previously registered in accordance with § 95-7A shall, if they meet registration requirements, register initially within 30 days of meeting such requirements and, thereafter, within 30 days of May 1 of each year.
E.
The Board of Health must forthwith give the Fire Chief a copy of the information registered according to this section.
F.
Any substantial change in the information reported on the registration form must be reported to the Board of Health within 30 days of the change.
A.
The Board of Health or its designated agent(s) may, at all reasonable times and upon 24 hours' notice to the occupant of the premises, enter any premises, public or private, for the purpose of performing its duties under this article and may, at any time and upon reasonable notice to the occupant of the premises, enter such premises for the purpose of protecting the public health or safety or to prevent damage to the environment.
B.
An "agent of the Board of Health or Fire Chief" is any person authorized by the Board of Health or Fire Chief to act under these article provisions. No action required by these provisions shall be taken by the agent without the approval of the Board of Health or Fire Chief, and the agent may not vary these provisions without specific approval. Whenever reference is made to the Board of Health, it shall mean the Board of Health or its agent.
In addition to the provisions of 527 CMR 1 (Massachusetts Fire Regulations), the following provisions shall apply to all storage tanks and containers:
A.
Surfaces underlying areas where hazardous materials are stored aboveground shall be impervious to the materials being stored.
B.
Areas where hazardous materials are stored must have provisions for spill containment for minimizing effects of a spill or other hazardous discharge.
C.
If the Board of Health or its designated agent determines that the container or storage tank is not product-tight, it shall be disposed of under the direction of the Board of Health.
D.
Wastes containing toxic or hazardous materials shall not be disposed on-site but shall be held on the premises in product-tight containers for removal by a licensed carrier and for disposal in accordance with the Massachusetts Hazardous Waste Management Act, Chapter 21C of the General Laws.
E.
Where allowed, storage of ice-control chemicals shall be within a weatherproof shelter or cover and have an impervious surface with provisions made for safe cleanup.
F.
Pesticides shall be stored in their original container and stored according to label instructions. The label should be intact and on the container at all times. Precautions shall be taken to protect containers subject to damage by moisture.
G.
No new or replacement tank shall be installed nor shall a tank be removed unless the owner has given at least one week's notice of the scheduled removal or replacement to the Fire Chief.
A.
Response to hazardous materials incidents. In the event of a hazardous materials incident involving explosive or flammable materials, the following procedures shall be observed:
(1)
The operator shall immediately notify the owner.
(2)
The owner or operator shall immediately notify the head of the local Fire Department and the Massachusetts Department of Environmental Protection Emergency Response: 888-304-1133.
[Amended 4-25-1990 ATM by Art. 17; 11-12-2024 STM by Art. 8]
(3)
If testing has confirmed that the source of the leak is the piping for a particular tank, the operator shall take that tank out of service immediately. If testing has confirmed that the source of the leak is a particular tank, the owner shall, within 24 hours, cause that tank to be emptied of all its product.
(4)
The head of the local Fire Department shall follow the procedures outlined in 527 CMR 1 for reporting of a discharge to the DEP.
[Amended 4-25-1990 ATM by Art. 17]
(5)
The Fire Chief shall notify the Board of Health of any hazardous materials incidents of discharges to the environment.
B.
If the Board of Health monitors the groundwater where there is the possibility of groundwater contamination, it shall do so in consultation with the DEP. The Board of Health shall hire a qualified hydrogeological professional(s) to undertake the monitoring, including the installation of observation wells, sampling, analysis and the determination of the most effective way to remove or contain the discharge. Costs incurred shall be assigned to the owners of the discharged hazardous materials.
[Amended 4-25-1990 ATM by Art. 17]
C.
The Board of Health may require the sampling of unknown waste compounds or other unidentified substances in containers greater than or equal to 50 gallons where the possibility exists of hazardous materials. The containers shall be labeled with the action needed and labeled with the contents, after analysis for hazardous constituents. The costs of sampling and analysis shall be borne by the owner of the containers. Reports shall be submitted to the Board of Health and the Water Department Commissioners.
A.
The Board of Health may grant a variance from the provisions of this article but only where applicable in accordance with the requirements of 527 CMR 1.
B.
In granting a variance, the Board of Health will take into consideration whether the applicant has demonstrated that an equivalent degree of environmental protection required under this article will still be provided to public and private water supplies and to the public health and safety. It shall consider the direction of groundwater flow, soil conditions, depth to groundwater, size, shape and slope of the lot and existing and known future water supplies. Such information shall be supplied by the applicant in the form of a groundwater impact study prepared by a registered professional engineer and/or a hydrogeologist with professional qualifications and experience. Requests for such a variance shall be in writing.
C.
In consideration of said variance, the Board of Health may hire, at the expense of the applicant (up to a maximum of $1,200), a qualified hydrogeologist with proven experience to review information supplied by the applicant.
D.
The determination of a variance requires a public hearing. Notice of the hearing shall be given by placing notification at least once in a newspaper of general circulation in the Town of Whately at least 14 days before said hearing.
E.
Notice of the hearing shall be given by the Board of Health, at the applicant's expense, at least 10 days prior thereto by certified mail to all abutters to the property at which the applicant's use is proposed. The Board shall also notify the Planning Board and Conservation Commission and public water authorities for their response, in writing, for any variance requested. A final decision by the Board of Health relative to such application shall be issued only after review of the responses of the aforementioned boards. In the event that the aforementioned boards do not submit a response within 21 days following the receipt of such application, the Board of Health shall deem the lack of response to be a lack of opposition to the application by the aforementioned agencies. The Board of Health shall take final action within 45 days of the receipt of an application.
F.
At a public hearing, the applicant shall establish that the proposed storage or location of a hazardous material(s) will not threaten or adversely affect public or private water sources or public safety.
G.
Any tanks granted a variance must meet the approved design standards as described in 527 CMR 1. Additionally, secondary containment or equivalent protection shall be required for new installations.
H.
Nothing in this section shall be construed to interfere with or replace the authority of the Fire Chief.
A.
Written notice of any violation of this article shall be given to the owner and operator by the agent of the Board of Health, specifying the nature of the violation; corrective measures that must be undertaken, including containment and cleanup of discharged materials; and any preventive measure required for avoiding future violations and a schedule of compliance with a date given for completion of corrective action. Requirements specified in such a notice shall be reasonable in relation to the public health hazard involved and the difficulty of compliance. In no event shall more than 30 days be allowed for either compliance or finalization of a plan for longer-term compliance.
B.
Any person who violates any provision of this article may be subject to punishment by a fine of $300. Each day or portion thereof during which a violation continues shall constitute a separate offense. The Board of Health or Fire Chief shall take such legal action as is necessary to enforce this regulation.
[Amended 4-25-1990 ATM by Art. 19; 11-12-2024 STM by Art. 8]
If any provision, sentence or phrase thereof shall be held invalid for any reason, the remainder of that regulation and all other regulations shall continue in full force.