[Ord. #81-85, S 1]
This chapter shall be known as the "Hazardous Substances Storage Ordinance of the Township of Montgomery."
[Ord. #81-85, S 1]
It is hereby found and declared as follows:
a.
The public health and welfare of the residents of the Township of Montgomery has been threatened as a result of the introduction of hazardous substances into the ground and water.
b.
Damage has been caused to streams and underground water supplies by said hazardous substances.
c.
Other protection afforded by existing State and Federal statutes and regulations is insufficient to satisfactorily protect the residents of the Township of Montgomery due to the limited scope of said statutes and regulations and delay incurred in enforcement of such other statutes and regulations.
d.
The Board of Health of the Township of Montgomery, by virtue of N.J.S.A. 26:3-31a is empowered to pass ordinances to protect the public water supply and prevent the pollution of any stream of water or well, and to prevent the use of or to close any well, the water of which is polluted or detrimental to the public health.
e.
Leaking and defective containers of hazardous substances have been one source of damage to the waters of the Township of Montgomery.
f.
By virtue of N.J.S.A. 26:3-45 et seq., the Board of Health of the Township of Montgomery is further empowered to pass ordinances declaring what shall constitute nuisances and to abate nuisances, sources of foulness or causes of sickness hazardous to the public health.
g.
The release of hazardous substances into waters of the Township may cause sickness and danger to the public health even when those waters are not used for domestic purposes.
h.
With certain exceptions, the storage of hazardous substances above ground poses less of a danger to the waters and environment of the Township and the health, safety and welfare of Township residents than below ground storage.
[Ord. #81-85, S 1; Ord. #82-86, S 1]
The purposes of this chapter are:
a.
To establish minimum standards for the storage of hazardous substances in a manner so as to provide protection to the residents, environment and waters of this Township.
b.
To prevent the pollution of any waters or well in the Township.
c.
To protect the public health by defining situations that constitute nuisances and to provide methods for their abatement.
[Ord. #81-85, S 1]
The discharge and/or spill of a hazardous substance are hereby declared to be nuisances and prohibited activities.
[Ord. #81-85, S 1; Ord. #82-86, S 1; Ord. #94-5, S 1]
Except where otherwise indicated by the context, the following definitions shall apply in the interpretation and enforcement of this chapter:
Shall mean all actions to remove a discharge or spill of a hazardous substance or the source thereof or to chemically neutralize the substance or to prevent or mitigate any harmful effects the substance may have upon the waters, environment or public health of the Township.
Shall mean a receptacle used to hold a hazardous substance including, without limitation, bottles, pipelines, bags, barrels, boxes, cans, cylinders, drums, cartons, vessels, vats, and stationary or mobile tanks.
Shall mean actions to limit or prevent the spread of discharged or spilled hazardous substances.
Shall mean any intentional or unintentional action or omission resulting in the release, spill, leakage, pumping, pouring, emission, emptying, or dumping of hazardous substance into or onto the waters or environment of the Township, excepting discharges made pursuant to and in compliance with the conditions of a valid Federal or State permit.
Shall mean and include water, air and land, and the interrelationship which exists among and between water, air, land and all living things.
Shall mean any nonresidential building, place, structure, vehicle, equipment or site where the cumulative amount of hazardous substances to be stored, held, transferred, handled or processed at the site is in excess of 250 gallons. Residences are a room or series of connected rooms designed for permanent residency containing living, cooking, sleeping and sanitary facilities together with any accessory buildings serving the residence. Residences include farmhouses and accessory buildings used in farming operations. The term "nonresidential" is intended to include all buildings, places, structures, vehicles, equipment or sites that are or do not serve "residences."
Shall mean all substances or wastes defined to be hazardous by or contained in the regulations adopted and from time to time amended by (1) The New Jersey Department of Environmental Protection pursuant to N.J.S.A. 54:10-23.11 and N.J.S.A. 13:1D-1 et seq. and contained in Title 7, Chapter 1-E, Subchapter 1, Section 1.3 of the New Jersey Administrative Code (N.J.A.C. 7:1E-1.3), (2) The United States Department of Transportation at 49 C.F.R. 100-199, (3) The United States Department of Labor pursuant to the Occupational Safety and Health Act of 1970 at 29 C.F.R. 1910 and (4) The United States Environmental Protection Agency pursuant to the Comprehensive Environmental Responsibility Compensation and Liability Act, Toxic Substances Control Act and Resource Conservation and Recovery Act, 40 C.F.R. 122-124, 261, 282, 265 and 40 C.F.R. 264 and 761. Three copies of said regulations plainly marked to indicate what portion thereof is intended to be adopted herein have been placed on file in the office of the Secretary of the Board of Health upon introduction of this chapter and will remain there on file until final action is taken on this chapter for the public's use and examination. In addition, because (1) human beings and the environment are continually being exposed each year to a large number of new uncommon and unstudied chemical mixtures and substances, the properties of which may not be fully learned, tested and/or developed, and (2) because among the many chemical substances and mixtures which are being developed and produced, there are some the manufacture, processing, distribution in commerce, storage, use or disposal of which may present an unreasonable risk of injury to the health or environment, if an applicant seeking preliminary site plan approval from the Township Planning Board or Board of Adjustment proposes the storage of in excess of 250 gallons of a chemical substance or mixture of chemical substances not specifically enumerated in the aforementioned regulations, the Board of Health may require the applicant to develop and present to the Board all reports, test results and scientific data then available pertaining to the effect of the chemical substance(s) and/or mixture(s) on the health and environment. If, on the basis of the reports, test results and scientific data presented to and/or developed by the Board or its consultants, the Board, at a hearing on notice to the applicant, determines there exists a reasonable basis to conclude that a substantial present or potential hazard to health or the environment would result from the improper treatment, storage, transportation, disposal or management of the chemical substance, the applicant shall comply with all of the provisions of this chapter. Factors to be evaluated by the Board in making this determination include, without limitation, the (1) freezing and boiling points, (2) toxicity, (3) corrosiveness, (4) combustibility, (5) stability, (6) flashpoint, (7) volatility, (8) shock-sensitivity, (9) reactivity with other substances, (10) explosiveness, and (11) irritancy of the chemical substance(s) or mixture(s). As used herein, chemical substance means "any organic or inorganic substance of a particular molecular identity including (1) any combination of substances occurring in whole or in part as a result of a chemical reaction or occurring in nature and (2) any element or combined radical." Nothing herein shall prevent an applicant proposing the storage of a chemical substance or mixture not specifically enumerated in the aforementioned regulations from waiving a hearing upon the chemical substance or mixture and proceeding immediately with compliance with this chapter.
Shall mean the Health Officer of the Township.
Shall mean a material of sufficient thickness, density or composition as to prevent the discharge of hazardous substance into the waters of the Township for a period at least as long as the maximum anticipated time during which the hazardous substance will be in contact with the material.
Shall mean any hazardous substance storage facility which as of the date of adoption of this chapter has not received but will require preliminary site plan approval by the Township Planning Board or Board of Adjustment pursuant to the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. This term shall also include the additions to or modifications of any existing hazardous substance storage facility which additions or modifications require site plan approval by the Planning Board or Board of Adjustment.
Shall mean any person who has operating responsibility for a hazardous substance storage facility from which a discharge or spill occurs at the time of the discharge or spill.
Shall mean any structure, device, or combination thereof designed to prevent spills of hazardous substances from being discharged to land or water.
Shall mean any escape of hazardous substances from the ordinary containers employed in the normal course of storage, transfer or use of such substances. A "spill" becomes a "discharge" under this chapter only when the hazardous substances reach waters of the Township or lands from which they may flow or drain into said waters.
Shall mean the Township of Montgomery in Somerset County, New Jersey.
Shall mean all springs, streams, rivers, ponds, lakes, aquifers, and bodies of surface or groundwater whether natural or artificial within the boundaries of the Township.
[Ord. #81-85, S 1]
In addition to any reporting requirements that may be required by State or Federal law or regulation, any spill or discharge of a hazardous substance occurring at a hazardous substance storage facility shall be reported by telephone by the owner, operator, or person in charge of the facility to the Health Officer or, if he is not available, to the Township Police. The telephone report shall be made immediately following the occurrence of the spill or discharge. In said telephone report, as many details as are known, including but not limited to the location of the spill or discharge and the substances spilled or discharged, shall be reported to the Township. Within 24 hours of making said telephone report, the owner, operator, or person in charge of the facility shall submit to the Health Officer a written report setting forth the time, place and date of the names and addresses of persons present, and a detailed description of the spill or discharge. The detailed description shall include the amount of the spill or discharge and the name of the substance spilled or discharged, a proposed method of containment, clean-up and removal of the spill or discharge and the estimated cost of removal of the hazardous substance. Written reports detailing every step taken to clean up, remove and contain the spill or discharge shall thereafter be filed with the Health Officer every 72 hours until the spill or discharge is completely cleaned up, removed and contained to the satisfaction of the Township Board of Health. Where said follow-up reports would be repetitive, cumulative or not provide any additional information, the Health Officer may waive, in writing, the requirement that such report be submitted.
[Ord. #81-85, S 1]
The owner, operator, or person in charge of a hazardous substance storage facility shall provide access to the facility to the Health Officer or any agents, servants or employees of the Board of Health upon presentation of identification (1) between the hours of 8:30 a.m. and 4:30 p.m. weekdays; and (2) at any time when a discharge or spill is known to have occurred or there is probable cause to believe one is imminent or has occurred. When such access is provided, the Health Officer or other designated agent, servant or employee of the Board of Health shall be permitted to take samples, photographs, photocopies, documents and statements from witnesses to determine whether there is compliance with the requirements of this chapter.
[Ord. #81-85, S 1]
Immediately upon learning of a spill or discharge, the owner, operator or person in charge of the hazardous substance storage facility at which the spill or discharge has occurred shall take all steps necessary to clean up, remove or contain the spill or discharge so as to prevent the spill from reaching the waters of the Township or the discharge from causing any further damage to said waters. Any container or other equipment leaking, spilling or discharging hazardous substances shall be immediately repaired, replaced or taken out of use following detection of the leak, spill or discharge unless provision is made to temporarily capture and contain the leaking, spilling or discharging of a hazardous substance in a drip pan or other containment device designed to protect the waters. When such temporary provision is made, the leaking item shall be fully repaired, replaced or taken out of use within five days.
[Ord. #81-85, S 1]
The storage of hazardous substances at any new hazardous substance storage facility to be constructed or located in the Township shall be above ground except:
a.
Where a duly adopted Federal or State statute, regulation or code provides otherwise, in which case the statute, regulation or code shall control; or
b.
Where the person proposing the construction of the new hazardous substance storage facility on proofs submitted to the Board of Health establishes by clear and convincing evidence that:
1.
The risk of fire, explosion, air pollution or other health hazard resulting from above ground hazard outweighs the danger to the health and waters of the Township from below ground storage; or
2.
The hazardous substance to be stored is one for which no safe above ground containment method has been developed or is in use at other hazardous substance storage facilities.
[Ord. #81-85, S 1; Ord. #82-86, S 1]
No new hazardous substance facility shall be located or constructed in the Township unless the detailed engineering plans therefor have been reviewed and approved by the Board of Health for compliance with the requirements contained in section 16-11 of this chapter below and until the Board of Health has determined that the plans afford protection to the health and environment of the Township.
[Ord. #81-85, S 1; Ord. #94-5, S 1]
All new hazardous substance storage facilities shall meet the following minimum requirements:
a.
All portions or areas of the hazardous substance storage facility in which hazardous substances are intended to be stored, processed, manufactured, or transferred shall be designed to prevent spills of hazardous substances by the use of appropriate containment and/or diversionary systems.
b.
Where by reason of the quantity of hazardous substances stored or the dangers posed to the public health by the nature of the hazardous substance, such substance storage poses a threat to the public health or waters of the Township, the hazardous substance storage facility shall include features to prevent the spills of hazardous substances from becoming discharges. These design features shall include secondary containment and/or diversionary systems such as:
1.
Dikes, berms or retaining walls sufficiently impermeable to contain spilled hazardous substances.
2.
Curbing.
3.
Gutters, culverts and other drainage systems.
4.
Weirs, booms and other barriers.
5.
Lined diversion ponds, lined lagoons and lined retention basins, holding tanks, slop tanks and other collecting systems.
6.
Drip pans.
c.
Secondary containment and/or diversionary systems as required by paragraph b of this section shall meet the following standards:
1.
The system must block all routes by which spilled hazardous substances could reasonably be expected to flow, migrate, or escape in the waters of the Township from within the containment area.
2.
The system must have sufficient capacity to contain or divert the largest probable single discharge that could occur within the containment area, plus an additional capacity to compensate for any anticipated normal accumulation of rainwater and to provide a reasonable margin of safety in the event of a tank failure.
3.
In order to prevent the spill or discharge of hazardous substances into ground water, all components of the system shall be made of or lined with impermeable materials. Such material or liner must be maintained in an impermeable condition.
d.
No manufacturing area, processing area, transfer area or other storage area or secondary containment/diversion system appurtenant thereto shall drain into waters or into a ditch, sewer, pipe or storm drain that leads directly or indirectly into waters or public sewage treatment plan unless:
1.
Provision has been made to retain, by valves or other means, any accumulated rainwater until its condition can be ascertained; or
2.
Provision has been made to intercept any spilled hazardous substances in an improved industrial wastewater treatment or pretreatment facility, or other approved facility.
e.
Catchment basins, lagoons and other containment areas shall not be located in areas that are subject to flooding.
f.
Incompatible materials shall not be stored within the same containment area if there is a substantial likelihood of them mixing in the event of spillage. "Incompatible" materials are those which if mixed, will create hazards greater than those posed by the individual substances alone, such as fire, explosion or generation of toxic fumes. This restriction does not apply to manufacturing or process areas where the substances are brought into proximity as part of a production process.
g.
Hazardous substances shall be kept in sealed containers reasonably non-susceptible to breakage, puncture or leakage at all times except when such substances are being transferred between containers. Containers shall be compatible with the substances stored therein and resistant to chemical attack by the substances.
h.
There shall be no new storage of hazardous substances in areas subject to flooding as identified in any Critical Areas Maps adopted by the Township as part of the Township's Land Development Ordinances and/or within the 100-year flood of any watercourse as delineated pursuant to N.J.S.A. 58:16A-50 et seq.
i.
The areas of a hazardous substance storage facility where the hazardous substances are stored, processed, transferred or used shall be secured by fencing, enclosures, or other impermeable barriers. Self-closing or self-latching mechanisms shall be installed at the entranceways to such areas and permanent locking devices to prevent theft or vandalism shall be used when the facility is closed.
j.
The owner or operator of a facility shall carry out a program of a facility inspection designed to detect spills and potential equipment failures and approved by the Board of Health. Such a program shall include, as a minimum, records of all tests and inspections specifically required by any applicable section of this chapter. Records of inspections and tests which are made under the inspection program, shall be maintained by the owner or operator for a period of three years and shall be available to the Health Officer of the Township of Montgomery for inspection between the hours of 8:30 a.m. and 4:30 p.m. weekdays.
k.
The areas beneath above ground storage containers shall be made of or surfaced with a material impermeable to passage and/or chemical attack by the stored hazardous substances under the conditions of storage prevailing within the storage container.
l.
Pipes leading to and from above ground storage containers which enter the container below the liquid level, shall be equipped with valves sufficiently close to the container so that the contents of the container will be prevented from escaping outside the secondary containment area in the event of a pipe rupture outside the containment area.
m.
If a storage container is served by internal heating coils, such coils, the pipes leading to and from those, and the facilities to which they connect, must be designated so that any leakage passing from the container into the heating coil system will be captured and contained in a settling tank, skimmer or other secondary containment or wastewater system.
n.
Storage container installations not served by secondary containment systems shall be equipped with fail-safe devices capable of detecting overfills of the container and automatically shutting down or immediately alerting facility personnel of an overfill. Such devices shall be one of the following:
1.
High level liquid alarms with an audible or visual signal designed to alert facility personnel of overfills; or
2.
High liquid level pump cutoff devices designated to stop flow at predetermined levels; or
3.
Direct communication between container gauger and pumping station; or
4.
Fast response systems for determining liquid levels, such as visible gauges or digital computer links; or
5.
Interconnections between containers so that overfills are directed into other tanks.
o.
Where below ground hazardous substance storage is permitted under the limited circumstances set forth in section BH16-9, said below ground storage shall meet the following minimum requirements unless Federal or State statute, regulation or code provides otherwise in which case the statute, regulation or code shall control:
1.
Below ground hazardous substance containers and any piping routinely used to convey and transfer hazardous substances to and from containers shall be made of corrosion-resistant materials or shall be protected from corrosion by coatings, cathodic protection or other corrosion-protective methods compatible with local soil conditions.
2.
Below ground hazardous substance storage containers shall be protected by product sensitive leak detection devices, implanted in the ground beneath and around the buried containers. The Board of Health shall have the authority to waive this requirement if no such devices are available and/or their use is not practicable and provided the below ground storage containers are provided with one of the following methods of leak detection:
3.
Secondary containment shall be required for below ground hazardous substance containers and the piping routinely used to convey and transfer hazardous substances to and from containers.
p.
Pipe supports should be designed so as to minimize abrasion and corrosion and allow for expansion and contraction. Wood-to-metal contacts are prohibited.
q.
If pipes at the hazardous substance storage facility are elevated across roadways, gate check-in procedures, warning signs and/or other means shall be used to minimize the chance of vehicular collision with the pipes.
r.
Following completion of construction of the new hazardous substance storage facility, the owner's engineer shall file a certification with the Board of Health that the facility "as built" complies with the provisions of this code and any approvals issued hereunder as well as with any other applicable codes, regulations or statutes such as, without limitation, the National Fire Code and the National Electrical Code.
s.
Mobile or portable containers containing incompatible substances shall not occupy the same unloading area or combination or unloading areas, with unimpeded drainage to the same point, at the same time.
t.
Unloading areas shall not contain at the same time, single or combination(s) of tank cars and tank trucks having a combined volume of hazardous substance exceeding that of the unloading area spill containment structure.
u.
All facilities shall have an adequate supply of protective safety equipment such as rubberized coveralls, boots, gas masks, etc., in convenient locations for use by any personnel who are required to clean up spilled hazardous substances. Where such equipment is required by regulation of the Federal Occupational Safety and Health Administration (OSHA) compliance with such regulations shall be deemed to fulfill the requirements of this subsection.
v.
Secondary containment and diversionary systems shall be maintained in good repair, free of cracks through which hazardous substances could escape and shall not be used for the storage of any product or substance. The owner or person in charge of the facility shall cause such systems to be inspected at regular intervals and, at a minimum, once a year, and records shall be maintained for three years of such inspections which records shall be certified by the owner, operator or person in charge of the facility as accurate and available to the Health Officer between the hours of 8:30 a.m. and 4:30 p.m. on weekdays. All hazardous substances which are discharged into a secondary containment or diversionary system shall be promptly removed by the owner, operator, or person in charge of the facility.
w.
Flexible hoselines which are used to transfer hazardous substances between containers, facilities, or vehicles or combination thereof shall be visually inspected prior to each use by the owner, operator, or person in charge of a facility or their designated representative. Visibly damaged, deteriorated or discarded hoses shall be immediately taken out of service and removed from the work area of the facility.
x.
All fuel-powered vehicles in the process of being loaded or unloaded shall be attended at all times during the procedure. Secondary containment and/or diversionary systems will be calculated to the largest fuel capacity of any vehicle to be loaded or unloaded at this location, or at the discretion of the Board of Health, as may be determined to be in the public interest, after review by the Board of Health of the plans required to be submitted pursuant to this chapter.
y.
Any pipes removed from service at a hazardous substance storage facility shall be capped or blankflanged and marked as to origin.
[Ord. #81-85, S 1; Ord. #82-86, S1]
a.
When required by the Health Officer, the owner or operator of any hazardous substance storage facility constructed after the date of adoption of this chapter shall install monitoring wells or systems in locations calculated to maximize the detection of any leak or spill in any waters. The Health Officer will only determine to require monitoring wells where the location, quantity or quality of the hazardous substances stored would cause early detection of a leak, spill or discharge to be critical to the protection of public health or waters of the Township or where the facility has experienced recurring (at least two) spills and discharges. The Health Officer shall not require installation of observation wells or other systems, if a leak or spill of a hazardous substance could be readily detected by personnel at the facility, product gauging or other means.
b.
Prior to the installation of observation wells, as required by the Health Officer, plans showing the proposed location of the wells of other systems shall be submitted to the Health Officer for approval.
c.
The owner or operator shall sample the observation wells or other systems quarterly or at such other intervals and in a manner as may be required by the Board of Health, and submit samples to a State-certified or equivalently certified test laboratory for analysis for determination as to whether or not any of the hazardous substances stored or used at the facility have reached the waters of the Township and, if so, in what concentration. The owner or operator shall cause said laboratory reports to be forwarded to the Health Officer.
d.
Copies of said laboratory reports shall also be maintained by the owner or operator at the hazardous substance storage facility for purposes of inspection by the Health Officer, agent or employees of the Board of Health for a minimum period of three years, including three years following cessation of operation of activities by a facility owner.
e.
In the event the laboratory analysis demonstrates the presence of a hazardous substance in the observation well or other systems, the Board of Health shall be immediately notified and steps approved by the Health Officer immediately taken by the owner or operator of the hazardous substance storage facility to abate the situation.
[Ord. #81-85, S 1; Ord. #99-01, S 6]
Any person aggrieved by any decision of the Health Officer or his designee made pursuant to this chapter shall have the right to appeal that decision to the Board of Health, pursuant to the procedures set forth in section BH1-3.
[Ord. #81-85, S 1]
In the event that any section, sentence or clause of this chapter shall be declared unconstitutional, unenforceable or otherwise invalid by a court of competent jurisdiction, such determination shall not prejudice the enforcement of the remaining provisions.
[Ord. #81-85, S 1]
Nothing herein contained shall be deemed to limit the Board of Health or any of its agents from exercising any other right or power granted by the Federal, State or local government to affectuate the purpose of this chapter or to protect the health of the community.
[Ord. #81-85, S 1]
Any person violating any of the provisions of this chapter shall upon conviction thereof be subject to a penalty of not less than $5 nor more than $500 for each particular violation. Each day a violation continues shall constitute a separate offense.
[Ord. #81-85, S 1; Ord. #94-89, S 6; Ord. #94-2, S 6]
The fee for review of a new hazardous substance storage facility shall be $150 unless the Board of Health finds that it is unable to conduct a comprehensive review of the proposed facility because the magnitude or uniqueness of the proposed facility or hazardous substance to be stored therein causes the data submitted to be so complex as to be beyond the scope of its knowledge, expertise or experience. In such instances, a review shall be undertaken by another qualified professional who shall make recommendations to the Board and an escrow account in the amount of $1,000 will be established to cover the cost of professional services. Escrow sums not utilized in the professional review process shall be returned to the applicant. If additional escrow sums are required to cover the costs of professional services, the applicant shall be notified of the required additional amount and shall add such sum to the escrow amount within 15 days.