[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:
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 substance or combination of substances which, because of its
quantity, concentration or physical, chemical or infectious characteristics,
may:
Cause or significantly contribute to an increase in mortality
or an increase in serious irreversible or incapacitating reversible
illness; or
Pose a substantial present or potential hazard to human health
or the environment when improperly treated, stored, transported or
disposed of or otherwise managed.
"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.
"Hazardous substances" shall also mean:
Petroleum and petroleum products.
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.
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.
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.
Any other substances listed in Appendix A.
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.
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.
a.
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:
1.
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.
2.
Have access
to any copy, at reasonable times, of any records that must be kept
pursuant to the requirements of this article.
3.
Inspect,
at reasonable times, any facilities, equipment (including monitoring
and control equipment), practices, or operations regulated or required
under this article.
4.
Take samples
or monitor, at reasonable times, for the purpose of assuring compliance
with this article.
b.
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.
c.
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.
a.
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:
|
Storage Area
(square feet)
|
Fee
(per annum)
|
|---|---|
|
Up to 500
|
$60
|
|
501 to 2,000
|
$120
|
|
2,001 to 10,000
|
$240
|
|
10,001 to 100,000
|
$700
|
|
Over 100,000
|
$1,100
|
b.
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:
a.
Police
Department.
b.
Health
Department.
c.
Office
of Emergency Management.
d.
Construction
Code Official.
e.
Bureau
of Fire Prevention.
f.
Farmingdale
Municipal Water Supply.
g.
Ocean County
Utilities Authority.
h.
New Jersey
Water Supply Authority.
i.
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.
a.
Identification.
1.
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.
2.
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.
c.
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.
d.
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.
e.
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.
f.
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.
g.
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.
h.
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.
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.
b.
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.
c.
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.
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.
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.
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.
Any duly incorporated volunteer fire, ambulance, first aid,
emergency or rescue company or squad.
a.
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.
b.
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 2.22.23.3,
Costs.
c.
This article
also provides a penalty for the violation of the article for either
committing a spill or for failure to report the same.
a.
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.
b.
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.
c.
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.
d.
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.
