[HISTORY: Adopted by the Town of Barnstable 10-7-1993 by Order No.
93-104 (Art. XXXIX of Ch. III of the General Ordinances as updated through 7-7-2003).
Amendments noted where applicable.]
A.
Exposure to hazardous substances can cause cancer, genetic
mutation, birth defects, miscarriages, lung, liver, and kidney damage, and
death.
B.
Environmental contamination can bankrupt site owners,
lower or destroy land values, drive out residents and industry, depress local
economies, and endanger public health.
C.
Most hazardous substances do not readily decompose into
harmless components. They instead remain in highly dangerous forms and penetrate
by movement through land and water into and throughout the environment.
D.
Some hazardous substances are considered explosive and/or
extremely hazardous and toxic. These substances have caused death and serious
injuries to Fire Department personnel. A comprehensive database containing
the types and amounts of toxic or hazardous materials stored or handled within
buildings within the Town should be formed in order to provide essential information
to Fire Department personnel.
E.
Barnstable's groundwater is the sole source of its
existing and future drinking water supply. When sufficient groundwater exists
to saturate a permeable geologic formation so as to yield significant quantities
of water through wells or springs, it is known as an aquifer.
F.
On Cape Cod, some aquifers may be integral with the surface
waters, lakes, streams and coastal estuaries which constitute significant
recreational and economic resources of the Town. These resources are used
for swimming and other water-related recreation, shellfishing and fishing.
G.
Accidental spills and discharges of petroleum products
and other toxic and hazardous materials onto the ground and surface waters
have repeatedly threatened the quality of such groundwater supplies and related
water resources on Cape Cod and other Massachusetts towns, posing substantial
public health and safety hazards and threatening economic losses to the affected
communities.
H.
Unless stricter preventive measures are adopted to manage
the storage, use, and generation of toxic and hazardous materials and to prohibit
the release of these materials within the Town, further releases of such materials
to the aquifer will predictably occur, and with greater frequency and degree
of hazard by reason of increasing construction, commercial and industrial
development, population, and vehicular traffic in the Town of Barnstable and
on Cape Cod.
I.
The foregoing conclusions are well known and have been
confirmed by findings set forth by the Barnstable County Health and Environmental
Department, the Cape Cod Commission, the Massachusetts Department of Environmental
Protection, the Occupational Safety and Health Administration (OSHA), and
the Environmental Protection Agency (EPA).
J.
Recent revisions to the Massachusetts Drinking Water
Regulations, 310 CMR 22.00, created the need for this chapter to be amended
in order to remove potential conflicts between this chapter and 310 CMR 22.00.
The Town of Barnstable adopts the following measures under its home rule powers, its police powers to protect the public health and welfare, and its authorization under M.G.L. Chapter 40, § 21.
A.
BOARD OF HEALTH
BUILDING COMMISSIONER
FIRE DEPARTMENT
HEALTH DEPARTMENT
Enforcement agencies.
A regulatory committee of the Town. It consists of three members,
one of whom is a physician. The members are appointed by the Town Council
of the Town of Barnstable.
The designated supervisor and administrator of the Town of Barnstable
Building Department. The Building Commissioner is appointed by the Town Manager.
The appropriate Town of Barnstable Fire District's Fire Chief
and/or that Fire Chief's designee(s).
The Director of Public Health, who is the designated agent of the
Board of Health, and/or the Director of Public Health's designee(s).
The Health Department provides administrative support to the Board of Health.
B.
ACUTELY HAZARDOUS MATERIAL
HANDLE
HAZARDOUS MATERIAL
(1)
(2)
(3)
(a)
(b)
(c)
(d)
MATERIAL SAFETY DATA SHEET (MSDS)
OPERATOR
OWNER
RELEASE
(1)
(2)
(3)
(4)
(5)
SITE
STORE
Other terms.
A material which is extremely toxic or reactive. For the purposes
of this chapter, any acutely hazardous waste listed within 310 CMR 30.136
of the Massachusetts Department of Environmental Protection Hazardous Waste
Regulations, and those wastes listed within 310 CMR 30.131 with EPA Hazardous
Waste Nos. F020, F021, F022, F023, F026, F027, and F028 are considered as
acutely hazardous materials.
To use, to deal with, act on, or dispose of.
One or more of the following:
A product or waste or combination of substances which, because of quantity,
concentration or physical or chemical or infectious characteristics, poses
a present or potential hazard to human health, safety, or welfare or the environment
when improperly treated, stored, transported, used, or disposed of or otherwise
managed.
Any material regulated under Sections 310 CMR 30.122, 310 CMR 30.123,
310 CMR 30.124, 310 CMR 30.125, 310 CMR 30.131 (except for those listed with
EPA Hazardous Waste Nos. F020, F021, F022, F023, F026, F027, F028 which are
considered as acutely hazardous materials), 310 CMR 30.132, and 310 CMR 30.160
of the Massachusetts Department of Environmental Protection Hazardous Waste
Regulations, et seq., as these statutes may be amended. A general listing
of these materials and quantities is available at the Health Department office.
Any material, waste, product, or substance which has one or more of
the following characteristics:
Ignitable: easily catches fire, flash point of less than 140° F.;
Corrosive: easily corrodes certain materials, very acidic or alkaline,
the pH is less than or equal to 2.0 or greater than or equal to 12.5;
Reactive: explosive, produces toxic gases when mixed with water or acid;
Toxic: poisonous.
The form containing data regarding physical characteristics, flammability,
reactivity, toxicity, and the health and safety hazards of specific chemicals,
as well as information relative to procedures recommended for spills and leaks
of specific chemicals and special precautions to be taken during handling
of specific chemicals.
The person who has the effective control of a business operation,
or governmental agency.
The person who has legal ownership of a site. For the purpose of
this regulation, the Health Department shall be entitled to rely on the most
current list of owners in the records of the Town Board of Assessors as providing
sufficient evidence of ownership under this chapter.
The accidental or intentional spilling, leaking, pumping, discharging,
pouring, emitting, emptying or dumping of toxic or hazardous material upon
or into any land, air, or waters of the Town of Barnstable. Release includes,
without limitations, leakage of such materials from failed or discarded containers
or storage systems, and disposal of such materials into any sewage disposal
system, dry well, catch basin, unapproved hazardous waste landfill, or any
other discharge of toxic or hazardous materials into the environment. The
term "release" as used and applied in this chapter does not include the following:
Proper disposal of any material in a sanitary or industrial landfill
that has received and maintained all necessary legal approvals for that purpose;
Application of fertilizers and pesticides in accordance with label recommendations
and with regulations of the Massachusetts Pesticide Control Board;
Application of road salts in conformation with the Snow and Ice Control
Program of the Massachusetts Highway Department and/or the Town of Barnstable
Highway Division.
Disposal of sanitary sewage to subsurface sewage disposal systems as
defined and permitted by Title 5 of the Massachusetts Environmental Code and
the Board of Health regulations.
Disposal of sanitary sewage to the Town of Barnstable wastewater treatment
plant and to other wastewater treatment facilities as defined and permitted
by the Massachusetts Department of Environmental Protection.
Any real estate, personal property, facility, building, structure,
installation, equipment, pipe or pipeline including any pipe into a storm
drain, sewer or treatment works, well, pit, pond, lagoon, impoundment, ditch,
tank, landfill, storage container, or any other place or area to, from or
at which toxic or hazardous materials have been stored or discharged.
The containment of substances or materials in such a manner as not
to constitute disposal or use of such substances or materials. Notwithstanding
the above, such terms shall not include the maintaining of hazardous materials
which are in transit or which are maintained in a fixed facility for a period
of less than 30 days during the course of transportation.
A.
No owner of a business, home occupation, industry, or
operator of a governmental agency shall handle or store acutely hazardous
materials and/or hazardous materials in the Town of Barnstable unless he/she
is the holder of a registration. Such registration shall include an inventory,
the location of the site, the name of the operator, and the name of the owner.
The inventory shall include the proposed and/or existing quantities of all
acutely hazardous materials and hazardous materials handled or stored on site
on the form provided by the Health Department.
B.
The owner shall describe the storage location of the
material safety data sheets on the registration form provided. The material
safety data sheets shall be made available upon request of the Health Department
and/or the Fire Department.
C.
There are no minimum quantities that exempt an owner
from this section.
D.
New owners of businesses, home occupations, or industrial
establishments who have not previously obtained a registration in accordance
with this section shall, if they handle or store acutely hazardous materials
and/or hazardous materials, obtain a registration prior to handling or storage
at a building or structure and prior to commencing business.
E.
The registration shall be revised or renewed if there
is a change in the inventory, the site, the operator, or the owner.
A.
All acutely hazardous materials and/or hazardous materials
shall be stored indoors, unless in product-tight containers which are protected
from the elements, leakage, accidental damage, and vandalism. Liquid hazardous
materials other than gasoline, which are stored outside, shall be stored above
ground in a covered container within a containment area designed to contain
a minimum of 110% of the volume of all materials to be stored. For the purposes
of this subsection, fertilizer shall be considered as hazardous materials.
B.
Containers of acutely hazardous materials and/or hazardous
materials shall be stored on an impervious, chemical-resistant surface compatible
with the material being stored. Provisions shall be made to contain the product
in the case of an accidental release.
C.
Wastes containing acutely hazardous materials and/or hazardous materials shall be held on the premises in product-tight containers and shall be removed and disposed of in accordance with the Massachusetts Hazardous Waste Management Act, Ch. 704 of the Acts of 1979.[1]
[1]
Editor's Note: See MGL C. 21C, § 1 et seq.
D.
Road salts and other chemicals used for ice and snow
removal shall be contained in a structure that provides protection from the
elements. The structure shall be constructed in such a way to prevent a release
and to prevent leachate from contaminating the groundwater and surface waters.
E.
Other containers/containment areas may be required as
specified or as determined by the Director of Public Health.
A.
The Board of Health shall adopt regulations from time
to time specifying the hazardous materials and acutely hazardous materials
which shall be regulated by licensure, specifying the quantities of such hazardous
materials and acutely hazardous materials which shall be regulated by licensure,
and specifying the fees for such licenses. The Board of Health may have reference
to scientific literature, publications, recommendations and regulations of
federal, state, and local regulatory agencies, the expertise and experience
of public safety agencies, especially and including Fire Departments. Such
a determination will be based upon the ignitability, corrosivity, reactivity,
or toxicity of the hazardous materials handled or stored, the amounts of hazardous
materials and acutely hazardous materials stored, and the proposed storage
location and handling location of the acutely hazardous materials and hazardous
materials.
B.
The Health Department shall enforce such Board of Health regulations. The Health Department shall require, after reviewing the submitted registration information set forth in § 108-4, an owner to obtain an annual license.
C.
It shall be the responsibility of the owner and/or the
operator to apply annually for such license.
D.
New owners of businesses, home occupations, industrial
establishments or operators of governmental agencies who have not previously
obtained a license in accordance with this section may be required upon registration
to obtain a license prior to handling and/or storage at a building or dwelling
and prior to commencing business.
E.
The owner and/or operator shall submit a contingency
plan prior to the issuance of a license by the Health Department. A contingency
plan shall meet the requirements set forth below:
(1)
Submission of the names, addresses, and telephone numbers
of the owner, operator, and all other persons responsible for implementation
of the contingency plan in the absence of the owner and/or operator.
(2)
A plan showing where and how all regulated substances shall be stored as described within § 108-5 of this chapter such that the method of containing any accidental release to ensure that all such releases will be totally contained and prevented from reaching any surface or ground waters or into any on-site sewage disposal system, sewer system, catch basin, or dry well. This plan shall also be posted in one of the following on-site locations: guard shack, fire alarm box, sprinkler riser, other location acceptable to the Fire Department. The location of the posting shall be specified.
(3)
The Health Department and/or the Fire Department may
require the owner to provide vacuum suction devices or absorbent scavenger
materials be present on site in sufficient magnitude so as to control and
collect the total quantity of regulated substances present or may require
such devices and materials to be readily available and easily accessible from
off-site sources consistent with the contingency plan. Emergency containers
shall be of such capacity as to hold the total quantity of regulated substances
plus any absorbent material. A plan showing the location of all emergency
collection devices shall be provided if the provisions of this section are
required.
(4)
Proper and adequate maintenance of containment and emergency
equipment shall be required. Procedures shall be established for inspections
performed by the operator and/or the operator's designee(s) once every
three months and for the verification of maintenance of containment and emergency
equipment. Such procedures shall be in writing, including a regular schedule
of maintenance. A log documenting any accidental spills, describing how such
spills were handled, describing inspection results, and maintenance shall
be kept at the site. Such logs and records shall be available for inspection
by the Health Department and/or the Fire Department at all times.
(5)
The procedures which will be followed in the event of
release so as to control and collect all released material in such a manner
as to prevent it from reaching any surface or ground waters or into any sewage
disposal system, municipal sewer system, catch basin, or dry well. Every operator
having knowledge of a release or other loss of acutely hazardous materials
and/or hazardous materials shall report the release or loss of same to the
Health Department and the Fire Department within one hour of detection. The
operator shall ensure the telephone number of the appropriate Fire Department
and of the Town of Barnstable Health Department office shall be posted on
or adjacent to a telephone located at the site.
F.
Prior to submission of the contingency plan to the Health
Department, approval of that plan must be obtained from the Fire Department.
G.
Upon receipt of the annual fee, completion of the annual
application form designated by the Health Department, upon receipt of a complete
inventory, and upon receipt of a satisfactory contingency plan, the Director
of Public Health shall issue said license to the operator and the site. Said
license shall expire on June 30 and shall be administratively renewed annually
upon application and payment of the annual fee.
H.
The Director of Public Health may grant, suspend, modify,
or revoke such license for due cause or failure to comply with any section
of this chapter and/or failure to perform the conditions set forth in the
contingency plan.
Any person or persons upon whom any order has been served pursuant to
any section of this chapter may request a hearing before the Board of Health
by filing a written petition, provided that such petition shall be filed within
seven days after the day the order was served. Upon receipt of a petition,
the Board of Health shall in writing inform the petitioner of the date, time,
and place of the hearing and their right to inspect and copy the Board of
Health's file concerning the matter. The hearing shall be commenced not
later than 30 days after the date the order was served. At the hearing, the
petitioner and other affected parties shall be given an opportunity to be
heard, to present witnesses or documentary evidence, and to show why an order
should be modified or withdrawn, or why an action by an inspector or other
personnel of the Health Department should be reconsidered, rescinded, or ordered.
Failure to hold a hearing within the time period specified herein shall not
affect the validity of any order. The Board of Health shall sustain, modify,
or withdraw the order and shall inform the petitioner in writing of its decision
within not more than seven days after the conclusion of the hearing.
A.
No person shall handle or store any hazardous materials
and/or acutely hazardous materials which were not listed on the submitted
registration and inventory until after the owner and/or the operator has registered
any additional hazardous materials as an amendment to the inventory.
B.
An operator shall first receive the approval of the owner
prior to registering any additional hazardous materials with the Health Department.
C.
The Health Department may require, after reviewing the
submitted amended inventory and other information, the operator and the owner
of a business, home occupation, or industry to obtain an annual license if
such additional hazardous materials places the applicant under the current
licensing regulations of the Board of Health.
D.
The Director of Public Health may grant, suspend, modify,
or revoke such license for due cause or failure to comply with any section
of this chapter and/or failure to perform the conditions set forth in the
contingency plan.
The release of any hazardous materials and/or acutely hazardous materials
upon the ground, or into any surface or ground waters or into any sewage disposal
system, sewer system, catch basin, or dry well within the Town of Barnstable,
is prohibited.
Licensure, registration, and reconciliation of inventory requirements
shall not apply to the following:
A.
Fuel oil stored in conformance with Massachusetts fire
prevention regulations and regulations of the Barnstable Board of Health for
the purpose of heating buildings located on the site.
B.
Fuel stored in boats, airplanes, trucks, and other vehicles
accessory to a residential use.
C.
Noncommmercial buildings. The handling and storage of hazardous materials at a residential dwelling in quantities which are associated with reasonable household use. This exemption does not apply to a professional or home occupation use as defined by §§ 240-12C(1) and 240-18 of Chapter 240, Zoning. In addition, this exemption does not apply to hotels, motels, interval ownership facilities (time-shares), guesthouses.
A.
The Health Department shall be the repository of information
relating to releases of hazardous materials. Any person possessing hazardous
material release information has an obligation to submit such information
to the Health Department. Every professional engineer and/or other person
conducting a 21E report analysis shall submit a copy of the final report to
the Health Department within 21 days of completion of the report. Nothing
shall contravene with § 12 of Chapter 21E of the Massachusetts General
Laws.
B.
If a person believes that the information required by
this chapter involves the release of a trade secret, the person shall nevertheless
make the disclosure to the Director of Public Health and shall notify the
Director of Public Health in writing of that belief on the inventory document.
C.
The Director of Public Health and the Fire Chief shall
protect from disclosure any trade secret designated as such by the operator.
D.
Upon receipt of a request for the release of information
to the public which includes information of which the operator has notified
the Director of Public Health is a trade secret, the Director of Public Health
shall notify the operator in writing of the request by certified mail, return
receipt requested. The Director of Public Health shall release the information
to the public within 10 days of receipt of a written request, but no earlier
than three days after the date of mailing the notice of the request for information,
unless, prior to the expiration of the ten-day period, the operator files
an action in an appropriate court for a declaratory judgment that the information
is subject to protection or for an injunction prohibiting disclosure of the
information to the public and promptly notifies the Director of Public Health
of that action.
E.
Any information which is confidential pursuant to this and/or § 108-4 shall not be disclosed to anyone except the following:
(1)
An officer or employee of the Town, county, state, or
the United States, in connection with the official duties of that officer
or employee under any law for the protection of health, or to a contractor
with the Town and their employees if, in the opinion of the Director of Public
Health, disclosure is necessary and required for the satisfactory performance
of a contract, for performance of work, or to protect the health and safety
of the employees of the contractor. Fire and emergency rescue personnel and
Health Department personnel operating within the jurisdiction of the Town
shall be considered employees of the Town, as the case may be.
(2)
Any licensed physician where the physician certifies
in writing to the Health Department that the information is necessary to the
medical treatment of the physician's patient.
A.
The provisions of this chapter shall be enforced by the
Health Department. The Health Department may, according to law, enter upon
any premises at any reasonable time to inspect for compliance.
B.
Upon request of the Health Department, the owner, individual
identified on a registration or license application, or operator of any premises
at which toxic or hazardous materials are used or stored shall furnish all
information required to monitor compliance with this chapter. A sample of
wastewater disposed to on-site septic systems, dry wells or sewage treatment
systems may be required by the Health Department at the operator's expense.
C.
All records pertaining to storage, removal and disposal
of toxic or hazardous wastes shall be retained for no less than five years
by the registration holder or license holder, and shall be made available
for review by the Health Department upon request.
D.
The Building Commissioner of the Town of Barnstable shall
condition issuance of building and occupancy permits upon conformity with
the requirements of this chapter respecting any hazardous materials and/or
acutely hazardous materials to be used in the course of such construction
or occupancy.
Written notice of any violation of this chapter shall be given by the
Health Department, specifying the nature of the violation; any corrective
measures that must be undertaken, including containment and cleanup of discharged
materials; any preventive measures required for avoiding future violations;
and a time for compliance. Requirements specified in such notice shall be
reasonable in relation to the public health hazard involved and the difficulty
of compliance. The cost of containment and cleanup shall be borne by the owner
and operator of the premises.
A.
Any person who shall violate any section of this chapter
for which penalty is not otherwise provided in any of the General Laws shall
upon conviction be fined $300.
B.
Any person who shall fail to comply with any order issued
pursuant to the sections of this chapter shall, upon conviction, be fined
$300. Each day's failure to comply with an order shall constitute a separate
violation.
C.
In the alternative to criminal prosecution, the Health
Department may elect to utilize the noncriminal disposition procedure set
forth in MGL C. 40, § 21d. Noncriminal ticket citation for any violation
of any section of this chapter shall be in the amount of $75 for the first
violation and $25 for each additional violation. Each day's failure to
comply with an order shall constitute a separate violation.
D.
Further, the Health Department, after notice to and after
a public hearing thereon, may suspend, revoke, or modify any license issued
hereunder for cause shown.
Each provision of this chapter shall be construed as separate, to the
end that if any part of it shall be held invalid for any reason, the remainder
shall continue in full force and effect.
