[HISTORY: Adopted by the Mayor and Borough Council of the Borough of Farmingdale as indicated in article histories. Amendments noted where applicable.]
[Adopted 12-4-2018 by Ord. No. 07-2018]
The title of this article shall be the "Hazardous Substance Ordinance."
The purpose of this article is to provide for the proper use, handling and storage of hazardous substances within the Borough of Farmingdale and to provide for an effective enforcement system for the rules and regulations concerning the use, handling and storage of hazardous substances.
As used in this article, the following definitions shall have the meanings indicated:
- ENFORCEMENT OFFICIAL
- Code Enforcement Officer.
- Any building or structure falling under the use group of assembly, business, factory/industrial. high hazard, institutional, mercantile, storage and utility as defined in the International Building Code (IBC) as adopted in New Jersey.
- a. A substance or combination of substances which, because of its quantity, concentration or physical, chemical or infectious characteristics, may:
- 1. Cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or
- 2. Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of or otherwise managed.
- b. "Hazardous substances" shall also mean all substances defined under N.J.A.C. 7:1E-1.3 and listed in N.J.A.C. 7:1E, Appendix A, titled "List of Hazardous Substances," promulgated April 28, 1982 by the New Jersey Department of Environmental Protection, a copy of which is on file with the Borough clerk and which is incorporated herein by reference.
- c. "Hazardous substances" shall also mean:
- 1. Petroleum and petroleum products.
- 2. All pesticides designated as "prohibited," "restricted" or "specifically restricted" pursuant to the New Jersey Pesticide Control Act of 1971 (N.J.S.A. 13:1F-1 et seq.) at N.J.A.C. 7:30-1.5 through 7:30-1.7.
- 3. Substances designated as hazardous substances by the Federal Environmental Protection Agency pursuant to Section 311(b)2(A) of the Federal Water Pollution Control Act, Amendments of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. § 1321.
- 4. Substances designated as toxic pollutants by Congress for the Environmental Protection Agency, pursuant to Section 307 of the Federal Pollution Act, Amendments of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C § 1317.
- 5. Any other substances listed in Appendix A.
- 6. Any substance defined as a hazardous substance in Section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601(14), and hazardous wastes as defined in Section 1004(5) of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6903(5), and as identified by the United States Environmental Protection Agency pursuant to Section 3001 of the RCRA.
- HAZARDOUS SUBSTANCE DISCLOSURE FORM
- Also referred to as a "disclosure form," and any amendments, modifications and supplements thereto, shall mean the Department of Environmental Protection Form No. DEQ-94 or a form prepared by and made available from the Borough of Farmingdale or the Office of Emergency Management.
Hazardous substances shall only be used, stored or handled pursuant to and in accordance with the current edition of the New Jersey State Fire Code, the current edition of the Life Safety Code NFPA 101 and the Resource Conservation and Recovery Act of 1976 (RCRA) of which copies are on file in the office of the Clerk of the Borough of Farmingdale, the office of the Construction Code Official of the Borough of Farmingdale and the office of the Board of Health; and the same are hereby adopted and incorporated as if fully set forth at length herein.
It shall be unlawful for any person, corporation or partnership to store, use or handle hazardous substances within or surrounding a facility located within the Borough without first completing the hazardous substances disclosure form on an annual basis. The term "facility" is defined pursuant to § 12-3 of this article. The disclosure form shall be mailed by the Office of Emergency Management or Department of Administration to all persons, corporations or partnerships who or which are affected by the provisions of this article. It shall be the responsibility of all persons, corporations or partnerships to complete the disclosure form and return it with the annual fee within 30 days from the date of receipt thereof.
All facilities which use, store or handle hazardous substances shall allow any authorized enforcement officials, as defined under § 12-3 of this article, upon the presentation of credentials and other documents as may be required by law, to:
Enter upon the premises where hazardous substances exist or might be located or records required are kept, for purposes of inspection, sampling, copying or photographing. Photography shall be allowed only for purposes related to this article.
Have access to any copy, at reasonable times, of any records that must be kept pursuant to the requirements of this article.
Inspect, at reasonable times, any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this article.
Take samples or monitor, at reasonable times, for the purpose of assuring compliance with this article.
Any refusal by the facility landowner(s), facility lessee(s), their agents, or any other person(s) with legal authority to allow entry to the authorized enforcement official shall be a violation of this article.
The facility landowner(s), facility lessee(s), their agents, or any other person(s) with authority over such facility shall provide access to authorized enforcement officials upon reasonable notice to determine the extent of compliance with any and all requirements of this article. The enforcement official obtaining entry after such notice shall not be chargeable for civil or criminal trespass.
It shall be the responsibility of any person, corporation or partnership who or which stores hazardous substances to file a completed disclosure form and pay the established fee therefor to the Borough on an annual basis. Said form shall be completed within 30 days from the date of receipt. The annual filing fees for the storage of substances pursuant to the provisions of this article shall be set forth as follows:
This fee schedule is for the filing of fees and storage disclosure form within the building or property. The annual fee set forth above shall be payable to the Borough of Farmingdale by check or money order and shall accompany the disclosure form, which shall be filed with the Office of Emergency Management or the Department of Administration. All fees collected pursuant to this article shall be dedicated to the Farmingdale Office of Emergency Management Trust Account.
[Amended 4-2-2019 by Ord. No. 01-2019]
Any time that any person, corporation or partnership who or which stores hazardous substances changes the reported storage in any way, or the volume or type of hazardous substances, or the method of handling or storing said hazardous materials, the Code Enforcement Officer shall be notified by telephone or email within 24 hours of this change. In addition, a new hazardous substance disclosure form shall be completed with the payment of a revised storage fee which shall reflect the difference between the original fee and the new fee required in accordance with the fee schedule set forth in § 12-8. The revised disclosure form and fee shall be filed with the Office of Emergency Management or the Department of Administration within 70 days from the date of notification to the Code Enforcement Officer.
It shall be the responsibility of the Borough's Department of Administration or Office of Emergency Management to coordinate the implementation and administration of this article. The Department of Administration or Office of Emergency Management shall serve as the central repository for the completed disclosure forms. It shall be the responsibility of said department to provide copies of the disclosure forms to the following department and agencies as required:
Office of Emergency Management.
Construction Code Official.
Bureau of Fire Prevention.
Farmingdale Municipal Water Supply.
Ocean County Utilities Authority.
New Jersey Water Supply Authority.
Manasquan River Regional Sewerage Authority.
The annual filing fee for storage of hazardous substances pursuant to the provisions of this article shall be waived for the following types of facilities:
It is not necessary to include materials into the inventory required by the disclosure form which are purchased in normal retail quantities, packaged in consumer packaging and used for the normal operation and maintenance of the offices, buildings and ground at a facility (e.g., touch-up paints, fire extinguishers, cleaners and office and janitorial supplies). Materials received in bulk, rather than retail packaging, shall be disclosed on the disclosure form.
Whenever additional inspections of a facility, as defined herein, are necessitated by reason of an unsatisfactory initial inspection, the facility landowner(s), facility lessees(s), their agents, or any other person with legal authority over such facility shall be assessed, and the Borough of Farmingdale shall be reimbursed thereby, for the cost of such inspection at the rate of $50 per hour or part thereof. These costs may be made a lien and special assessment against the parcel of land on which the business is located, but implementation of such an assessment procedure shall not be the exclusive remedy of the Borough for recovery of such costs.
Whenever a person, corporation or partnership who or which handles hazardous substances intends to cease or ceases doing business at a facility, such entity shall immediately notify the Borough of Farmingdale Code Enforcement Officer.
Information provided in the hazardous substance disclosure form shall be deemed a public record subject to inspection and copying, except where the information involved is a trade secret or is otherwise excepted or protected under laws from requirement of public disclosure.
If a person, corporation or partnership believes information contained in a disclosure form requested involves a trade secret which such entity wishes to protect from public dissemination, such entity shall identify or list on an additional and separate page of the hazardous substances disclosure form, conspicuously marked or labeled as containing trade secret information, the hazardous substance or other information that it claims should be protected as a trade secret. The trade secret information shall not be set forth in any other part of the application.
Within 60 days of filing a hazardous substance disclosure form in which a person, corporation or partnership has claimed a trade secret, such entity shall file with the Borough a written substantiation of the trade secret claim. It shall also file with the Borough a signed written agreement in a form acceptable to the Borough Attorney which indemnifies the Borough for the Borough's litigation expenses and costs, if any, and for any awards of damages and any attorney's fees arising out of litigation resulting from the Borough's refusal to disclose information claimed by the business to be a trade secret in the event such nondisclosure is found by a court of competent jurisdiction to be unwarranted.
Disclosure to public officers and employees. Trade secret information obtained by the Borough may be disclosed to an officer or employee of the Borough of Farmingdale or other public entity, provided that such disclosure is in connection with the official duty of such officer or employee under any fire suppression, health, safety or environmental law. Trade secret information may be disclosed to Borough contractors and to their employees if in the judgement of the Borough Administrator such disclosure is necessary for the performance of a contract with the Borough and to protect the health or safety of the employees of the contractor.
Acknowledgement of receipt. Recipients of trade secret information pursuant to Subsection c of this section must file with the Borough, at the time of receipt of such information, a completed, dated and signed written acknowledgement of receipt of said trade secret information. The acknowledgement shall state that the individual signing is aware of the confidentiality of the information received and the restrictions on its use and dissemination as set forth in this section.
Disclosure for medical purposes. Trade secret information may be disclosed to a paramedic or medical doctor by the Borough when necessary for the purposes of treating a patient, so long as the paramedic or doctor is first advised that any disclosure of the information which is not necessary for the treatment of the patient would constitute a violation of this article.
Penalty for unauthorized disclosure. A person in possession of trade secret information disclosed to the Borough pursuant to this article who knowingly makes further disclosure thereof to any person not entitled to receive such information shall be guilty of a violation of this article.
Disclosure pursuant to Public Records Act. The Borough, upon receipt of a written request under the Public Records Act from any person for the disclosure of information which any person, corporation or partnership has notified the Borough it seeks to protect as a trade secret pursuant to Subsection A of this section, shall notify such entity within two working days of such request by personal service or by certified mail, return receipt requested, that a request for disclosure of trade secret information has been received by the Borough. The Borough shall also inform such entity that it should immediately file the written substantiation of its claim of trade secret required by Subsection A of this section, if it has not already done so, and any other relevant information it may wish to file with the Borough. Upon receipt of a request for disclosure of trade secret information, the Borough shall forward a copy of the request, together with any substantiation of the trade secret claim and the Borough's proposed determination, to the Borough Attorney for review and comment.
National defense classification. Information certified by an appropriate official of the United States as classified for national defense purposes shall be accorded whatever protection against disclosure is directed by such official as specified by applicable federal law.
A nuisance exists where a person, corporation or partnership handles a hazardous substance which has not been disclosed as required by § 12-5 of this article. If a business is not in compliance with the requirements of said § 12-5, then the Borough may recover the costs of obtaining the necessary information concerning the handling of hazardous substances by the business, together with any administrative costs and fees, as a lien and special assessment against the parcel of land on which the business site is located.
In the event that such nuisance exists, the enforcement official shall give notice to the on-site manager and the owner of such entity, as well as the property owner, that such person, corporation or partnership must immediately file a completed hazardous substance disclosure form as required under § 12-5. The notice shall state that if the disclosure form is not so filed the enforcement official may conduct a special investigation or other action necessary to obtain the required information concerning the handling of hazardous substances at the site, that the costs of obtaining such information together with any administrative costs and fees may become a special assessment against the parcel, and that upon Borough Council confirmation of the assessment and recordation of such an order a lien will be attached to the subject property to be collected on the next regular property tax bill.
In the event a hazardous substance disclosure form is not filed as so required, the enforcement official may conduct a special investigation or the appropriate action necessary to obtain information concerning the handling of hazardous substances at the site.
Any person, corporation, partnership or facility violating this article shall be subject, upon conviction in the Municipal Court, to a fine of not more than $1,000 and/or imprisonment up to 90 days. Each day that a particular violation continues shall constitute a separate violation.
[Adopted 12-4-2018 by Ord. No. 07-2018]
This article is enacted pursuant to N.J.S.A. 40:42-1 et seq., the Home Rule Act, which directs municipalities to act to provide for the health, welfare and safety of their citizens.
As used in this article, the following terms shall have the meanings indicated:
- Includes the Borough of Farmingdale's employees, agents, officers, officials and supporting units as directed by the Office of Emergency Management.
- COLLECTING AGENCY
- Borough of Farmingdale, Office of Emergency Management.[Amended 4-2-2019 by Ord. No. 01-2019]
- Any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or pumping of hazardous substances into any waters which flow within the jurisdiction of the Borough or any land within the jurisdiction of the Borough or into the water or land outside the jurisdiction of the Borough when damage may result to the people, lands, waters or natural resources within the jurisdiction of the Borough.
- EXPENDABLE ITEMS
- Any items used to extinguish or prevent any hazardous substances or fire or stop or contain any leak, release or spill involving any hazardous substance which cannot be reused or replenished without cost after that particular incident. The expendable items include, but are not limited to, fire-fighting foam, chemical extinguishing agents, absorbent materials, sand, recovery drums, and any protective equipment and clothing to include but not be restricted to chemical protective suits, gloves, boots, goggles and any other item owned or controlled by the Borough of Farmingdale or owned or controlled by any volunteer organization or other municipal organizations rendering assistance.
- HAZARDOUS MATERIALS
- Any material, solid, liquid or gas, listed as a hazardous substance or material, including but not necessarily limited to the NFPA Guide of Hazardous Materials, the Department of Transportation Guide Book, the list of hazardous substances and toxic pollutants designated by the Federal Environmental Protection Agency (EPA) and the New Jersey Department of Environmental Protection pursuant to Section 311 of the Federal Water Pollution Act, Amendment of 1972, as amended by the Clean Water Act of 1977 (33 U.S.C. § 1251 et seq.) and the list to toxic pollutants designated by Congress or the EPA pursuant to Section 307 of the Federal Water Pollution Control Act, and hospital or medical waste, including but not limited to syringes, bandages and discarded pharmaceutical products and any material warranting removal or cleanup in the opinion of the Howell Township/Farmingdale Office of Emergency Management.
- Includes the Township of Howell's employees, agents, officers, officials and supporting units as directed by the Office of Emergency Management.
- Any motorized equipment, registered or unregistered, including but not limited to a passenger car, motorcycle, truck, tractor trailer, construction equipment, farm machinery, watercraft, aircraft and trains.
- Any container, drum, box, cylinder, bottle or tank used to hold, contain, carry or store any hazardous materials whether or not said container was manufactured for the containment of hazardous material.
- VOLUNTEER ORGANIZATION
- Any duly incorporated volunteer fire, ambulance, first aid, emergency or rescue company or squad.
This article provides for the reimbursement for the expenses incurred by the Borough of Farmingdale, Township of Howell, any and all volunteer organizations, as defined above, and all persons rendering both volunteer and nonvolunteer services from other local municipalities for the use of their vehicles, expendable items and equipment and for wages (both regular and overtime) paid to their employees, agents, servants and those persons from local municipalities who render nonvolunteer services as a result of an incident involving hazardous materials fire or leak, release or spill of a hazardous material and for the costs of medical and hospital treatment for injuries incurred by agents, servants, and employees of the Borough of Farmingdale as well as those persons who render voluntary service as part of a volunteer organization and/or nonvoluntary service for the Borough of Farmingdale or the Township of Howell as a result of the incident.
Any person causing any hazardous material fire or leak, spill or release involving a hazardous material must reimburse the Borough of Farmingdale for the aforementioned services at the rates set forth in Section 184.108.40.206, Costs.
This article also provides a penalty for the violation of the article for either committing a spill or for failure to report the same.
The discharge of hazardous substances is prohibited within the Borough of Farmingdale. This article shall not apply to discharge of hazardous substances pursuant to and in compliance with the conditions of a federal or state permit.
Any person who may be subject to liability for a discharge or who becomes aware of a discharge which occurred prior to or after the effective date of this article shall immediately notify the Howell Township/Farmingdale Office of Emergency Management at the Howell Township Municipal Building during normal business hours or through the 911 emergency reporting system after business hours.
Whenever any hazardous substance is discharged, the Borough or the Office of Emergency Management may, in its discretion, act to remove or arrange for the removal of such discharge.
Any person who has discharged a hazardous substance or who has failed to report a discharge or who is in any way responsible for any hazardous substance which has been or shall be removed by the Borough shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs and shall be liable for the costs associated with the use of Borough, Township or volunteer organization vehicles, expendable items and equipment and for the wages (regular and overtime) paid to Borough employees, agents and servants and those persons from local municipalities who render nonvolunteer services as a result of an incident involving a hazardous material fire or leak, release or spill of a hazardous material and for the costs of medical and hospital treatment for injuries incurred by agent, servants, and employees of the Borough of Farmingdale as well as those persons who render voluntary service as part of a volunteer organization and/or nonvoluntary service for the Borough of Farmingdale or the Township of Howell as a result of the incident.
Reimbursement to the Borough/Township for expendable items used shall be made by the owner or operator of the vehicle responsible for any hazardous material fire or leak or spill of hazardous material; the owner or person responsible for the vessel containing the hazardous material involved in such fire, leak or spill on public or private property, whether stationary or in transit and whether accidental or through negligence; the owner or person responsible for any property from which any leak or spill of hazardous material emanates, whether accidental or through negligence; and any person responsible for any hazardous material fire, leak or spill of hazardous material on public or private property, whether accidental or through negligence.
Any person causing any hazardous material fire or leak, spill or release involving a hazardous material must provide reimbursement for services rendered by any recovery company, towing company or any other technical assistance called for by the Borough to handle such incident. In the event of a vehicle having been responsible for an incident, such vehicle shall be impounded until such time as it has been deemed safe to proceed by the responsible official in conjunction and cooperation with the Borough of Farmingdale and until such time arrangements have been made to reimburse the Borough and the towing company for their expenditures under the terms of this article.
The person or entity responsible for any fire, leak or spill of hazardous materials shall reimburse the Borough/Township the full price of expendable items and costs used to extinguish such fire, or to stop or contain such leak, or to control such spill, within 15 days after receipt of a bill therefor. The collections agency shall utilize its best efforts to collect costs hereunder and shall reimburse its agents or the local units for amounts collected. In the event that the collection agency is not able to collect said costs or only a portion thereof, the collection agency shall not be responsible to its agents or the local units for the full amount of same.
The person or entity responsible for any fire, leak or spill of hazardous material who or which fails to reimburse the Borough/Township within the time required shall be subject to a fine of not less than $300 nor more than $500 per day or to imprisonment for a period of not more than six months, or both. The person or entity responsible for committing a spill, or who or which fails to report the same, will be liable for the same penalties as aforesaid stated.
The Borough of Farmingdale, through its chief financial officer, shall be authorized to establish a Dedicated by Rider Trust Account entitled "Farmingdale Office of Emergency Management Trust Account," and funds received from those persons or parties responsible for the hazardous material fire or leak or spill of hazardous material; the owner or person responsible for the vessel containing the hazardous material involved in such fire, leak or spill on public or private property, whether stationary or in transit and whether accident or through negligence; the owner or person responsible for any property from which any leak or spill of hazardous material emanates, whether accidental or through negligence; and any person responsible for any hazardous material fire or leak or spill of hazardous material on a public or private property, whether accidental or through negligence, shall be deposited into this account and used for reimbursement purposes, as well as for training, education, enforcement and equipment and equipment needs related to hazardous materials response or remediation.