[HISTORY: Adopted by the Essex County Board of Chosen Freeholders 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:
- AGENTS OF THE COUNTY
- 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.
- EMERGENCY RESPONSE ACTION
- 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:
- A. Investigating its cause, source or effect;
- B. Conducting or overseeing a remedial action;
- C. Initiating any action to prevent or mitigate any risk or threat to public health, safety or welfare arising out of a discharge; and
- D. Preventing or mitigating any damage or injury to public or private property or natural resources.
- EMERGENCY RESPONSE ACTION COSTS
- 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.
- EXPENDABLE ITEMS
- 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.
- HAZARDOUS SUBSTANCES
- 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.
- LEAK or LEAKING
- 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.
- OWNER or OPERATOR
- 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.
- RESPONSIBLE PARTY
- 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.
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.
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:
The date and time of the discharge.
The basis for liability.
A detailed narrative description of the costs incurred by the County, its employees, agents, contractors and authorized political subdivisions in responding to the discharge.
A calculation sheet, including hours and personnel charged, salary rates and any overhead rates.
An explanation of the procedures to be followed to pay the costs demanded or to appeal the demand.
Payment shall be remitted within 45 days of receipt of the demand letter.
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.
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.
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.
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 Chosen Freeholders unless disapproved by the Commissioner of the Department of Environmental Protection within said period pursuant to N.J.S.A. 26:3A2-27.