Model Hazardous Materials and Waste Bylaw
According to work done by the Cape Cod Commission's Water Resources office for the Monomoy Lens (1993) and Sagamore Lens (1996) groundwater protection projects, at least 11 of Cape Cod's 15 towns have some form of review, controls or a program which deal with hazardous materials. These include three general types of controls:
- prohibitions on certain land uses in wellhead protection/Zone II areas of town contained in zoning bylaws;
- general town bylaws; or
- Board of Health regulations.
Several towns have specialized regulations, promulgated by the Board of Health, which deal with discrete concerns such as underground oil storage tanks, the application of pesticides and herbicides or the use of drain cleaners.
Overall, nine towns control hazardous materials via zoning prohibitions. Five (Barnstable, Chatham, Dennis, Falmouth and Yarmouth) have either a separate town-wide ordinance or health department regulations enforced by the Board of Health. Of these five, three (Barnstable, Chatham and Yarmouth) have an ordinance or by-law which includes a registration and/or licensing program for hazardous materials users.
Hazardous Materials Controls
The traditional method for controlling hazardous materials is to include specific land use prohibitions in a municipality's zoning bylaw. The land use prohibitions described in these types of zoning bylaws relate to water supply areas and are generally the same as those listed in the Department of Environmental Protection's (DEP) drinking water regulations at 310 CMR 22.00. These include prohibitions on specific uses, such as junkyards and sludge or solid waste landfills. Other uses are allowed in these areas with performance controls, such as storage of road de-icing chemicals under cover and on an impervious surface.
An important question to consider when deciding how to implement a hazardous materials control program (encompassing more than just land use prohibitions) is whether to use a town-wide bylaw or a health regulation. Of the five towns noted above, only Barnstable's is a town-wide ordinance. The other four municipalities use health regulations. Bylaws that establish use prohibitions must be adopted as a zoning bylaw.
The development and implementation of a town-wide ordinance or bylaw is authorized by G.L. c. 40, §21.
In addition, health regulations are authorized by G.L. c. 111, §31. Unlike town-wide ordinances, health regulations (other than those which relate to disposal of sanitary sewage), can be adopted or modified by the Board of Health based on a one-time publication of a summary of the regulation in a newspaper of general circulation and a public hearing.
The following model bylaw is presented as a Board of Health regulation.
01.0 Authority: This regulation is promulgated by the Board of Health in the Town of _______ pursuant to its authority under the provisions of the Massachusetts General Laws, Chapter 111, Section 31.
02.1 The groundwater underlying is the sole source of existing and future drinking water supplies.
02.2 The aquifer is integrally connected with surface waters, lakes, streams and coastal estuaries. These constitute significant recreational and economic resources of the Town.
02.3 Accidental spills and discharges of petroleum products and other hazardous materials have impacted and threaten the quality of groundwater supplies on Cape Cod.
02.4 This health regulation is critically important to protect the public health, safety, welfare and the environment, as well as preserve and maintain the existing and potential groundwater supply of the Town from contamination with hazardous materials.
Commentary: This list is intended as a generalized menu for inclusion. It should be noted, however, that the DEP's Massachusetts Source Approval Regulations (310 CMR 22.21) require the implementation of wellhead protection measures for new municipal wells that pump over 100,000 gallons per day. Additionally, water suppliers planning to increase approved yields of existing wells or wellfields by 100,000 gallons per day or greater are also required to implement protection measures.
03.0 Definitions: In this Bylaw, the following words have the meanings indicated:
03.1 Discharge: The accidental or intentional disposal, deposit, injection, dumping, spilling, leaking, incineration or placing of hazardous material or waste upon or into any land or water such that hazardous material, waste or any constituent thereof may enter the land or waters of the Town of _______. Discharge includes, without limitation, leakage of such materials or wastes from failed or discarded containers or storage systems and disposal of such materials or wastes into any on-site leaching structure, drywell, catch basin, sewage disposal system or unapproved landfill.
For the purpose of this Section, discharge shall not include the following:
03.1.1 the proper disposal of any material in a sanitary or industrial landfill that has received and maintained all necessary local, regional, state and federal approvals for that purpose;
03.1.2 the application of fertilizers and pesticides in accordance with label recommendations and with the regulations of the Massachusetts Pesticide Control Board;
03.1.3 the application of road salts in conformance with the Snow and Ice Control Program of the Massachusetts Highway Department;
03.1.4 the discharge of sanitary sewage to subsurface sewage disposal systems as defined and permitted by Title 5 of the Massachusetts Environmental Code;
03.1.5 the discharge of sanitary sewage to the Town of _____ Wastewater Treatment Plant and to other wastewater treatment facilities as defined and permitted by the Massachusetts Department of Environmental Protection.
Commentary: Towns may wish to incorporate into the exceptions to the term "discharge" conformance with requirements of local Department of Public Works programs relating to the application of road salts.
03.2 Hazardous Material: Any chemical, combustible liquid, compressed gas, explosive, flammable aerosol (gas, liquid or solid), hazardous chemical, health hazard, mixture, organic peroxide, oxidizer, physical hazard, pyrophoric, unstable (reactive) or water reactive, as defined under Title 29 of the Code of Federal Regulations, Section 1910.1200(c) and any other chemical, material or substance identified by the Board of Health of _____ as a hazardous material based on available scientific evidence. Hazardous materials also include, but are not limited to petroleum products, solvents, oil-based paints and pesticides.
Commentary: Hazardous materials are primarily regulated by the Occupation Safety and Health Administration (OSHA) through 29 CFR 1910. The transport of hazardous materials is regulated by the federal Department of Transportation through 40 CFR 171 and 172. Hazardous wastes are regulated by the Department of Environmental Protection through 310 CMR 30.00 and the Environmental Protection Agency through 40 CFR 260.
03.3 Hazardous Waste: Any waste material defined by the Massachusetts Hazardous Waste Regulations, 310 CMR 30.00.
03.4 Household Quantity: Any or all of the following:
03.4.1 275 gallons or less of oil on site at any time to be used for heating of a structure or to supply an emergency generator, and
03.4.2 25 gallons (or the dry weight equivalent) or less of other hazardous materials on site at any time, including oil not used for heating or to supply an emergency generator, and
03.4.3 a quantity of hazardous waste at the Very Small Quantity Generator level as defined in the Massachusetts Hazardous Waste Regulations, 310 CMR 30.535.
03.5 Materials Safety Data sheet (MSD sheet): Information sheets available from the manufacturer, prepared in accordance with the requirements of 29 CFR 1910.1200, which contain data on the physical characteristics, flammability, explosivity, reactivity and safety and health hazards of specific chemicals or products. The MSD sheet also provides information on proper handling procedures, personal protective gear, spill control measures and recommended disposal methods.
03.6 SARA Title III/EPCRA: Title III of the Superfund Amendments and Reauthorization Act (SARA) passed in 1986. Title III is known as the Emergency Planning and Community Right-to-Know Act (EPCRA). Title III/EPCRA requires both users of hazardous materials and communities to undertake emergency planning. It also requires that all facilities that store in excess of 10,000 pounds of hazardous materials and lesser amounts of extremely hazardous materials (as defined in Title III) file a form called a Tier II report with the fire department, Local Emergency Planning Committee and State Emergency Response Commission. The Tier II report identifies by common name and quantity all the hazardous materials they use on site.
03.7 Wellhead Protection Areas: Areas that contribute ground water to existing public and community water supply wells. These areas shall be delineated by a consistent method and recognized by the Cape Cod Commission in conjunction with state standards for Zone IIs (as defined in 310 CMR 22.02).
04.0 Prohibitions: Discharges of hazardous materials or hazardous waste within the limits of the Town of _____ are prohibited.
04.1 New installations for underground storage of hazardous materials or hazardous wastes are prohibited within the following locations in the Town of ____________:
04.1.1 Zone II or the Interim Wellhead Protection Area of a public water supply well; and/or
04.1.2 Within four (4) feet of maximum high water table.
04.2 New commercial, industrial or institutional facilities that involve the use, treatment, generation, storage or disposal of hazardous wastes or hazardous materials, with the exception of household quantities, shall not be allowed in Wellhead Protection Districts/Zone II Areas. The prohibition on locating in a Wellhead Protection District/Zone II Area shall also apply to changes or expansions in use where the existing use involves the use, treatment, generation, storage or disposal of hazardous waste or hazardous materials in household quantities or less and the proposed new or expanded use results in more than a household quantity.
Commentary: Towns should consider incorporating into their zoning bylaw/ordinance the list of prohibited land uses contained in the Drinking Water Regulations (310 CMR 22.00) specific to Zone II/Wellhead Protection Districts. Bylaws that establish use prohibitions must be adopted as a zoning bylaw.
05.0 Storage Requirements:
05.1 Hazardous materials and hazardous wastes shall be stored in product-tight containers, with materials segregated from wastes, and on an impervious surface.
05.2 Outdoor storage must be designed to:
05.2.1 include protection from the elements, accidental damage or vandalism,
05.2.2 contain releases or spills of not less than 150% of the volume stored, and
05.2.3 prevent any flow of hazardous materials or waste to exposed soils, drains or surface waters.
05.3 Indoor storage shall be designed, by means of a berm, dike or other containment method, to contain releases or spills of not less than 150% of the volume stored and to prevent the flow of hazardous materials or wastes to floor drains, exposed soils or surface waters. The Board of Health may waive the containment requirements for indoor storage of hazardous materials stored in display areas and available for public sale.
05.4 Boat storage yards shall conform to the requirements of either Section 05.2 or 05.3. This includes yards which store boats stacked in racks or individually.
05.5 Containers of hazardous materials or wastes shall be stored in such a manner as to facilitate visual inspection of each container.
05.6 Containers of hazardous materials or wastes shall be stored in such a manner as to separate incompatible materials or wastes.
Commentary: In general, hazardous materials and wastes should be stored under cover and in tight containers. Containment requirements from other regulations range from 110% to 150% of the volume stored.
Several towns have regulations related to underground storage tanks (USTs). USTs are regulated primarily by the Massachusetts Fire Code, Department of Public Safety, and Federal requirements. The Federal requirements mandate that by September 23, 1998, all unprotected steel USTs must either be upgraded or removed from service, although heating oil tanks are not subject to this requirement. Towns interested in learning more about USTs can call the UST Compliance Program at (617) 727-3200, ext. 645.
06.0 Labeling Requirements:
06.1 Areas for storage of hazardous materials shall be clearly delineated and signs shall be posted clearly designating the nature of the storage area.
06.2 Containers of hazardous materials shall be clearly labeled with the name of the product or chemical(s), a list of the physical and health hazards associated with the product or chemical(s) taken from Materials Safety Data sheets and target organs affected by exposure.
06.3 Containers of hazardous waste shall be labeled as "Hazardous Waste," with the hazardous waste generator identification number and the date the container began accumulating waste clearly listed on the container.
06.4 Containers of hazardous materials which are in their original product containers and which are or will be displayed for sale at retail establishments are not required to be labeled according to the provisions of Section 6 of this regulation.
Commentary: The labeling requirements for containers of hazardous materials are part of the OSHA labeling requirements at 29 CFR 1910.1200. Most materials in their original containers will already satisfy these requirements. The labeling requirements for containers of hazardous waste are taken from the standards in 310 CMR 30.300, 30.680 and 30.690.
07.0 Registration Requirements:
07.1 Every owner or operator of a commercial, industrial or institutional facility which uses, treats, generates, stores or disposes of hazardous wastes or hazardous materials in any quantity shall register on or before (DATE) with the Board of Health.
07.2 Registration shall include:
07.2.1 the types and quantities of hazardous materials and wastes used, handled or stored at the facility,
07.2.2 a description of the location in the facility where the hazardous materials and wastes are used, handled or stored accompanied by a map or drawing,
07.2.3 a brief description of how the hazardous materials and wastes are stored (i.e. in a 55-gallon drum, in a 150-gallon tank, etc.),
07.2.4 the Hazardous Waste Generator identification number, and
07.2.5 the name of the hazardous waste transporter(s) used by the facility.
07.3 Copies of all Materials Safety Data sheets shall be submitted with the registration information to the Health Department.
07.4 The registration information shall be revised, updated and re-submitted within fourteen (14) business days if there is:
07.4.1 a change in the types or quantities of hazardous materials or wastes used, treated, generated, stored or disposed of at the facility,
07.4.2 a change in excess of a household quantity in the amount of hazardous materials or wastes used, treated, generated, stored or disposed of at the facility, or
07.4.3 if there is a change in the facility operator or owner.
07.5 Registration is not transferable between current and past and/or future owners.
07.6 In the event that the facility permanently ceases operations, the owner or operator of the facility shall notify the Board of Health of said closure at least 30 days before the closure date.
07.7 The information described in this Section shall be retained on site at the facility for a period not less than three (3) years.
Commentary: In the Town of Yarmouth program, there are no minimum quantities which exempt a facility from registering. In Barnstable, there is an exemption from registration if the amount of hazardous materials and/or wastes is "associated with reasonable household use" which has been interpreted to be 50 gallons and 25 pounds. However, the exemption in Barnstable does not apply to home occupations, hotels, motels, time-shares or guest houses.
The word "DATE" above is intended to allow local Boards to select a time each year which is most convenient for them to receive the registration information. Several towns use June 30th.
08.0 Contingency Plans:
08.1 Every owner or operator of a commercial, industrial or institutional facility which uses, treats, generates, stores or disposes of hazardous wastes or hazardous materials in excess of a household quantity shall create and maintain in a central location at the facility a Contingency Plan. Such Contingency Plan shall be filed on or before (DATE) with the Board of Health.
08.2 The Contingency Plan shall include:
08.2.1 the method of addressing a release or spill of the each of the hazardous materials or wastes described in Section 7 (Registration Requirements) of this regulation.
08.2.2 a description of the types and locations of spill containment and emergency equipment (i.e. fire extinguishers) at the facility.
08.2.3 an evacuation scheme for the facility.
08.2.4 the chain of notification for facility personnel and employees as well as response organizations who would be alerted in the event of a release or emergency.
08.3 The Contingency Plan shall be revised, updated and re-submitted within fourteen (14) business days if there is a change in any or all of the following:
08.3.1 the types or quantities of hazardous materials or wastes used, treated, generated, stored or disposed of at the facility.
08.3.2 any of the information to be included in Contingency Plans as described above.
08.3.3 the facility operator or owner.
09.0 Licensing Requirements:
09.1 Every owner or operator of a commercial, industrial or institutional facility which uses, treats, generates, stores or disposes of hazardous wastes or hazardous materials in excess of a household quantity must file for a license on or before (DATE) with the Board of Health.
09.2 The license shall become effective on (DATE) and shall expire on (DATE), but may be renewed annually upon an application and fee payment to the Board of Health.
09.3 No owner or operator of a commercial, industrial or institutional facility shall use, treat, generate, store or dispose of hazardous wastes or hazardous materials in excess of a household quantity unless:
09.3.1 they have provided the registration information required by Section 07.0 of this regulation, and
09.3.2 are the holder of a valid license issued by the Board of Health.
09.4 The Board of Health reserves the right to suspend, modify or revoke said license upon showing of due cause.
09.5 New commercial, industrial or institutional facilities which use, treat, generate, store or dispose of hazardous wastes or hazardous materials in excess of a household quantity shall obtain their license prior to commencing business.
Commentary: The word "DATE" above is intended to allow local Boards to select a time each year which is most convenient for them to begin the licensing cycle and select a time frame for the license.
There are several factors to consider when deciding whether to require licensing in addition to a registration program. Hazardous materials regulations are set up to require all commercial, industrial or institution facilities (with a few exceptions) to register if they use, treat, generate, store or dispose of any quantity of hazardous materials or wastes. Separate licensing requirements (like those noted above) apply when a facility meets or exceeds a certain threshold quantity of hazardous materials/wastes. Therefore, not all facilities in a town may be required to obtain a license. Towns also generally charge a separate fee for processing licenses and licensure adds additional administrative costs to a program.
Also, Barnstable's and Yarmouth's programs include a separate licensing requirement based on a set quantity of hazardous materials or wastes which is less than the household quantity described in the Definitions section of this regulation. Chatham's regulation does not specify a quantity above which a facility is subject to licensing.
0.10.1 The Board of Health may set an annual fee for the licensing of commercial, industrial and institutional facilities covered by this regulation. Such fee may be updated annually.
0.10.2 Issuance of a license shall not occur without payment of the fee.Commentary: It is uncertain whether the revenue generated by a fee is sufficient to pay for the enforcement of a hazardous materials/waste regulation. None of the Cape programs reviewed include a set fee, but rather leave it to be specified by the Board of Health or licensing authority. See also comments above related to licensing.
0.11.1 The provisions of this regulation shall be enforced by the Board of Health. The agent of the Board of Health may enter upon any premises covered by this regulation at any time to inspect for compliance with this regulation. Upon request of an agent of the Board of Health, the owner or operator of the premises shall furnish the information described in Section 07.0 (Registration Requirements), including the MSD sheets, as well as Section 08.0 (Contingency Plan) of this regulation.
0.11.2 The Board of Health or the agent for the Board may issue administrative orders, enforcement orders, violation notices, requests for compliance and other documents or correspondence to enforce this regulation. The Board may pursue criminal prosecution or civil litigation or both in the courts of the Commonwealth to enforce the provisions of this regulation.
Commentary: Chatham's regulation creates a separate enforcement and licensing authority made up of the Board of Health and representatives from the Fire Department. Other towns may wish to consider involving Fire Departments in reviewing registration information or assisting in enforcement.
0.12.1 The penalty for failure to comply with any provision of this regulation shall be governed by the Massachusetts General Laws, Chapter 111, Section 31. Each day of failure to comply shall constitute a separate offense.
Commentary: MGLs Chapter 111, Section 31 allows Boards of Health to make "reasonable health regulations." It also states that violations of such "reasonable health regulations" shall be a fine of not more than one thousand ($1,000.00) dollars. The DEP's ordinance sets a base fine of $200.00 per violation, escalating to a maximum of $1,000.00.
0.13.1 A variance from this regulation may be granted by the Board of Health only if the applicant can demonstrate to the satisfaction of the Board of Health that:
- enforcement of this regulation or any part of this regulation would result in a manifest injustice, and
- the storage and handling of hazardous materials and/or wastes will not endanger the public health or the environment, and
- an equivalent or higher degree of protection of the public health and the environment, than that achieved through conformance with this regulation, or part of this regulation, will be achieved.
0.13.2 Applicants seeking a variance from part or all of this regulation shall submit to the Board of Health a detailed written report describing the applicant's reasons for the variance request which addresses the three points of Section 0.13.1, above.
0.13.3 The Board of Health shall hold a public hearing on all requests for a variance from part or all of this regulation.
0.13.4 Any variance granted by the Board of Health shall be issued in writing within forty-five (45) days of the public hearing.
0.13.5 Any denial of a variance shall be in writing and shall contain a statement including the reasons for the denial.
Commentary: Health regulations must include some type of variance procedure. The preceding was drawn in part from Yarmouth's hazardous materials control regulation. Yarmouth's also includes a separate fee to be used to hire an "independent environmental consultant" to review the variances.
0.14.0 Exemptions: The following are not subject to this regulation:
0.14.1 Household waste including garbage, trash and domestic sanitary sewage.
0.14.2 Treatment, Storage and Disposal Facilities as defined by 310 CMR 30.00.
0.14.3 Facilities which file Tier II reports as defined by SARA Title III.
0.14.4 Registration shall not apply to fuel oil stored in conformance with the Massachusetts Fire Prevention Regulations, the Fire Department and the Board of Health for the purpose of heating buildings located at temporary construction sites.
Commentary: Tier II filers under SARA Title III/EPCRA have been excluded because they already have to provide information similar to what is required by this regulation to Local Emergency Planning Committees.
0.15.1 If any provision of this bylaw is held invalid by a court of competent jurisdiction, the remainder of the bylaw shall not be affected thereby. The invalidity of any section or sections or parts of any section or sections of this bylaw shall not affect the validity of the remainder of the [town]'s zoning bylaw.
Commentary: This Section is a generic severability clause. Severability clauses are intended to allow a court to strike or delete portions of a regulation that it determines to violate state or federal law. In addition, the severability clause provides limited insurance that a court will not strike down the entire bylaw should it find one or two offending sections.