Town of Tonawanda, NY
Erie County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Tonawanda 7-15-1974 as Chapter 38 of the 1974 Code of the Town of Tonawanda. Amendments noted where applicable.]
GENERAL REFERENCES
Building, plumbing and electrical standards — See Ch. 54.
Fire hazards and open burning — See Ch. 85.
Fire prevention — See Ch. 87.
Zoning — See Ch. 215.

§ 173-1 Title.

This chapter shall be known as the "Smoke and Air Pollution Ordinance."

§ 173-2 Definitions.

The following words, when used in this chapter, shall have the following meanings:
COMBUSTION ENGINEER
A person qualified by education and/or experience in combustion engineering and who, through his vocation, has kept abreast of its changing practices.
DENSE SMOKE
Smoke of a density equal to or in excess of No. 3 of the Ringelmann Smoke Chart.
DUST AND/OR FLY ASH
Gasborne and airborne particles as described and/or defined in § 173-4D of this chapter.
DUST-SEPARATING EQUIPMENT
Any device for separating dust from the media in which it is carried.
FUEL
Combustible materials, solid, liquid or gaseous, used primarily either to kindle or sustain fire or produce heat, including refuse to be consumed in refuse-burning equipment.
FUEL-BURNING EQUIPMENT
Any furnace, incinerator, refuse-burning equipment, boiler, apparatus, device, mechanism, stack or structure used in the process of burning fuel or combustible material except a railroad locomotive or vehicle as herein defined.
FUMES
Fumes, gases, noxious acids or vapors which are of such character and volume as to be detrimental to health and property.
INTERNAL-COMBUSTION ENGINE
An engine in which combustion of a gas, gaseous liquid or pulverized solid fuel takes place.
OPEN FIRE
Any fire wherein the products of combustion are emitted into the open air and are not directed thereto through a stack or chimney.
PERSON
Any individual, partnership, association, syndicate, company, firm, trust, corporation, government corporation, department, bureau, agency or any other entity recognized by law as the subject of rights and duties.
RINGELMANN SMOKE CHART
The Ringelmann Chart with instructions for use, as published by the United States Bureau of Mines, 1945.
SMOKE
All gaseous products of combustion, together with carbon, soot, fly ash and all other particulate solids in combustion gases.
SOOT
Agglomerated particles consisting essentially of carbonaceous material.
STACK OR CHIMNEY
A flue, conduit or opening arranged for emitting gases into the open air, and includes an open fire, structure or opening of any kind whatsoever capable of emitting smoke.
TOWN
The Town of Tonawanda, Erie County, New York, exclusive of the Village of Kenmore.
VEHICLE
A mechanism, other than a steam locomotive, either self-propelled or propelled by other means such as a roller, derrick, crane, trencher, portable hoisting engine, steamboat, tug or other apparatus, which is not ordinarily permanently installed in one location but is used at various places over a wide area.

§ 173-3 Dense smoke prohibited; exceptions.

A. 
The production or emission of dense smoke within the Town of Tonawanda is prohibited.
B. 
The following exceptions to the provisions of this section shall be permitted:
(1) 
In the event of upset fire conditions or breakdowns of equipment which are unavoidable and beyond the ordinary control of the person operating a fuel- or refuse-burning device, dense smoke of Ringelmann Smoke Chart No. 3 shall be permitted for one period of not more than six minutes during any one hour.
(2) 
When a firebox is being cleaned out or a new fire being built therein, dense smoke shall be permitted for one period of not more than 10 minutes in any one calendar day or for two periods of not more than six minutes in any one calendar day.
(3) 
Locomotives.
(a) 
It shall be unlawful for a railroad locomotive to emit smoke of a density greater than No. 2 of the Ringelmann Chart for more than one minute at any one time or for more than 10 such one-minute periods in any consecutive period of 60 minutes. This provision shall apply to any locomotive in service or being prepared for service in transfer yards or engaged in switching operations, except as set forth in Subsection B(3)(b) and (c) herein.
(b) 
In the event of upset fire conditions or breakdowns of equipment which are unavoidable and beyond the ordinary control of the person operating the locomotive, smoke of a density greater than No. 2 of the Ringelmann Chart shall be permitted for one period of not more than five minutes during any one hour.
(c) 
When a firebox is being cleaned out or a new fire being built therein, smoke of a density greater than No. 2 of the Ringelmann Chart shall be permitted for one period of not more than 10 minutes in any one calendar day or for two periods of not more than six minutes in any one calendar day.
(d) 
Railroad locomotive cranes and railroad wrecking equipment are exempted from the requirements of the definition of "dense smoke" in § 173-2 and from the requirements of §§ 173-7, 173-9, 173-10, 173-15 and 173-18.

§ 173-4 Emission of certain quantities of pollutants prohibited; additional standards.

A. 
The emission from any stack or premises within the town into the open air of such quantities of dust, soot, cinders, fly ash, noxious acids, vapors, fumes or gases so as to cause injury or detriment to persons or to the public or so as to endanger the reasonable comfort, health or safety of any person or the public or in such manner as to cause unreasonable injury or to cause damage to business or property is prohibited and also is hereby declared to be a nuisance and may be abated in the manner provided by law.
B. 
Plans and specifications for any and all installations and/or changes on both new and existing systems which involve or affect the discharge of fumes into the atmosphere, except that which would result from the use of fuel-burning equipment as defined under § 173-2, must be filed with the Smoke and Air Pollution Inspector and shall be accompanied by a statement made by a practicing chemical engineer, an independent consulting laboratory or a doctor of chemistry or other designated authority acceptable to the Smoke and Air Pollution Advisory Board describing the process of fume removal and discharge and certifying that the process of cleaning and removal of fumes described will reduce to a minimum fumes to be discharged into the air and that such process of cleaning can be accomplished by means of equipment available for purchase on an industrial scale.
C. 
Dispersion of effluent toxic gases by increasing the volume of air handled is not permissible.
D. 
The quantity of dust and/or fly ash emission shall be limited to 0.75 grains per cubic foot of flue gas at stack temperature, of which amount not more than 0.2 grain per cubic foot shall be of such a size as to be retained on a three-hundred-mesh United States standard sieve. These conditions are to be conformed to when the percentage of excess air in the stack does not exceed 50% at full load. The foregoing requirements shall be measured in accordance with the methods outlined in the Test Code for Dust-Separating Apparatus of the American Society of Mechanical Engineers.

§ 173-5 Smoke Inspector.

A. 
There is hereby established the office of Smoke Inspector, who shall serve at the pleasure of the Town Board at a compensation to be determined by the Town Board from time to time.
B. 
Qualifications. The Smoke Inspector shall be qualified in theory and practice of design, construction and operation of fuel-burning apparatus.
C. 
The Smoke Inspector shall, in cooperation with the Advisory Board, have charge of the enforcement of this chapter and of the rules and regulations promulgated hereunder. His duties shall include but shall not be limited to the following:
(1) 
The investigation of complaints, making of observations of smoke conditions and taking the necessary and proper steps to abate the nuisance therefrom and the enforcement of this chapter.
(2) 
The issuance of permits, certificates and notices under this chapter and the keeping and custody of applications, plans, permits, certificates, violations, complaints and other records on file for department purposes only.
(3) 
The examination of the plans for all new buildings and for the alteration of all existing buildings in order to assure that they are in accordance with this chapter and with the rules and regulations established by this chapter.
(4) 
The examination of the application and plans for the construction, installation or alteration of any fuel-burning equipment or any equipment pertaining thereto and, if found to meet the requirements of this chapter and of said rules and regulations, the issuance of an installation permit.
(5) 
The inspection of the installation of all equipment for which a permit has been issued and, when found that the work is completed in accordance with this chapter and with said rules and regulations, the issuance of an operating permit.
(6) 
The inspection annually of all the fuel-burning equipment under the jurisdiction of this chapter and, when found to comply with its provisions and said rules and regulations, the issuance of a certificate of operation.
(7) 
The publication and dissemination of information on methods of smoke reduction.
(8) 
The enlistment of the cooperation of civic, technical, scientific and educational societies.
(9) 
To make, prepare and promulgate rules and regulations with the advice of counsel of the Advisory Board for the installation and operation of fuel-burning equipment, subject to approval thereof by the Town Board after a public hearing thereon.
(10) 
Such other duties as are not hereinbefore enumerated as the Town Board may assign to him.
D. 
The Town Board may appoint such assistants and employees as it may deem necessary to help, aid and assist the Smoke Inspector or to work independently of the Smoke Inspector and may pay them such compensation as the Town Board may determine from time to time.

§ 173-6 Smoke Regulation Advisory Board.

A. 
There is hereby established a Smoke Regulation Advisory Board to consist of five members, who shall be appointed by the Town Board as follows: two for terms of one year, two for terms of two years and one for a term of three years. At the expiration of the several terms, appointment of successors shall thereafter be made by the Town Board for terms of three years. One of the members of said Board shall be a qualified combustion engineer. The Town Board shall appoint the Chairman, who shall serve as such until January 1, 1949. The Town Board shall thereafter appoint a Chairman at the first meeting of the Town Board in January of each year. The Smoke Advisory Board shall elect a secretary from among its members. If a vacancy shall occur in said Board other than by expiration of term, such vacancy shall be filled by the Town Board by appointment for the unexpired term. The Town Board shall have the power to remove any member for cause after a public hearing.
B. 
The duties of said Advisory Board shall be to advise and counsel with the Smoke Inspector and to assist him in the promulgation of rules and regulations as provided in § 173-5 hereof.
C. 
All meetings of said Board shall be held at the call of the Chairman and at such other times as such Board may determine.

§ 173-7 Construction, alteration and use of fuel- or refuse-burning plants. [1]

A. 
No new fuel- or refuse-burning plant, equipment or device shall be installed, erected or used, nor shall any existing fuel- or refuse-burning plant, equipment or device be altered, added to or used, nor shall any stack or furnace connected with such plant, equipment or device in installed, erected, altered, added to or used, within the town, until plans and specifications of the same shall have been filed in the office of the Smoke Inspector and approved as being so designed that the same can be managed and operated to conform to the provisions of this chapter and until a permit shall have been issued for such installation, erection, reconstruction or addition; provided, however, that such plans and specifications for heating plants only in residences of less than five dwelling units or flats need not be so filed unless demanded by the Smoke Inspector.
B. 
The plans and specifications so filed shall show:
(1) 
The type of installation.
(2) 
The nature and extent of the work to be performed.
(3) 
The extent of the space to be heated.
(4) 
The kind of fuel or refuse to be used and the rate of burning, including all provisions made for securing complete combustion of the fuel or refuse and the manner in which it is to be burned, for the purpose of preventing and eliminating dense smoke or other air pollution.
(a) 
The Smoke Inspector shall specify the volatile content of the solid fuel that may be consumed in any hand-fired equipment, provided that a fuel shall not be specified whose volatile content is in excess of the volatile content of the fuel now being used by any person hand-firing when these rules go into effect. Also no solid fuel shall be burned, imported, stored, sold or delivered for hand-firing that does not meet the standard herein described.
(b) 
A fuel shall not be used for hand-firing with a volatile content in excess of 24% of an ash- and moisture-free basis. Any solid fuel with a volatile content in excess of this shall be burned only with mechanical fuel-burning equipment.
(5) 
The location and dimensions of the premises, room, basement or other portion of the building in which such plant, equipment or device now is or may be located; and also the doors, windows, air shafts, fans and other means of ventilation in such premises, room, basement or other portion of such building, to be sufficient to prevent the temperature therein from rising to a point higher than 120° F. and to be sufficient, also, to provide that the atmosphere of any such room, basement or other portion of the building may be changed at least every 10 minutes.
(6) 
The location and dimensions of all stacks used in connection with or as a part of said fuel- or refuse-burning plant.
C. 
The Smoke Inspector may require such additional data as he may deem necessary for the purpose of issuing a permit. No plans and specifications shall be approved nor shall a permit be issued for the installation, construction, erection or alteration of or addition to such fuel- or refuse-burning plant, equipment or device unless adequate and approved provisions are shown thereon for securing reasonably complete combustion of the fuel or refuse to be used, for the purpose of preventing dense smoke or other air pollution.
D. 
After a permit has been issued, no fuel- or refuse-burning plant, equipment or device shall be operated or used with a type of fuel materially different from that specified nor in a manner different from the plans and specifications and the terms and conditions relating to its operation or use.
E. 
Nothing contained in this section shall be construed so as to prohibit the making of repairs to any stack or fuel- or refuse-burning equipment or device.
[1]
Editor's Note: See also Ch. 54, Building, Plumbing and Electrical Standards; and Ch. 215, Zoning.

§ 173-8 Issuance of building permits; inspections.

The Building Commissioner shall not issue a permit for the erection, construction, reconstruction or alteration of any building or structure which includes or requires a stack connected with a fuel- or refuse-burning plant, equipment or device unless a permit has been issued as provided in §§ 173-5 and 173-7 hereof. It shall be the duty of the Smoke Inspector, after such permit has been issued, to inspect the premises wherein said fuel- or refuse-burning plant, equipment or device is to be located to see that the execution of the work so authorized by said permit shall be done in conformity with the approved plans and specifications and the existing standards, rules and regulations applicable thereto.

§ 173-9 Certificates of operation.

It shall be unlawful for any person to use any new or reconstructed fuel- or refuse-burning plant, equipment or device until he shall have first procurred a certificate of operation. No original certificate of operation shall be issued for such plant, equipment or device unless such plant, equipment or device is so constructed that it can consistently be managed to do the work required with the type of fuel and equipment to be used without emitting from the stack dense smoke, dust, soot, cinders, fly ash or noxious acids, fumes or gases.

§ 173-10 Annual inspections and certificates.

A. 
Every fuel- or refuse-burning plant, equipment or device shall be subject to annual inspection, and it shall be unlawful for any person to use or operate any fuel- or refuse-burning plant, equipment or device without first obtaining therefor an annual certificate of operation.
B. 
The first annual inspection shall commence one year from the effective date of this chapter, and each annual certificate of operation shall be effective for one year from the date thereof.

§ 173-11 Extensions of time for compliance.

Upon due application and upon furnishing proof that plans and specifications have been or are being prepared for the reconstruction or alteration of or addition to any premises or fuel- or refuse-burning plant, equipment or device to prevent or eliminate air pollution or the emission of dense smoke and that the necessary steps have been taken to provide for compliance with the provisions of this chapter, but that the proper equipment or device cannot be obtained immediately, a certificate of extension may be granted for a period of not more than six months, and such period may be extended further for not more than three months at any one time. All extensions of time shall be reported to the Town Board.

§ 173-12 Permits and certificates not to constitute bar to prosecution for offenses.

The issuance and delivery of a permit for the construction, reconstruction or alteration of or addition to any fuel- or refuse-burning plant, equipment or device or any stack connected thereto or the issuance and delivery of an original or an annual certificate of operation shall not be a bar to prosecution because of a violation of any of the provisions of this chapter.

§ 173-13 Reports on sale of certain fuel- or refuse-burning equipment; exceptions.

A. 
It shall be the duty of a person engaged in the business of selling fuel- or refuse-burning equipment or devices which are required to be connected to a vent or stack to report to the Smoke Inspector the sale of every such equipment or device to be installed or used anywhere within the town, and it shall be the duty of every person purchasing any such equipment or device at the time of making such purchase to give to the seller a statement in writing, signed by such purchaser or his duly authorized agent, setting forth the correct address of the building in which such equipment or device is to be installed or used.
B. 
The report herein provided for shall be in writing and shall be delivered or mailed to the Smoke Inspector within seven days after such sale and shall contain the name and the address of the purchaser and the location of the building in which such equipment or device is to be installed or used.
C. 
A false statement or report in connection with the sale of any such equipment or device shall be a violation of the provisions of this chapter.
D. 
The provisions of this section shall not apply to:
(1) 
Fuel- or refuse-burning equipment or devices installed in buildings used exclusively for private residences containing less than five dwelling units or flats.
(2) 
Wholesale transactions made for the purpose of resale.

§ 173-14 Restrictions on certain fuel-burning equipment.

Fuel-burning equipment or devices installed to heat buildings used exclusively for private residences containing less than five dwelling units or flats shall be equipped with efficient smoke-eliminating apparatus unless such equipment or device is fueled with anthracite coal, coke, oil, gas or other smokeless fuel.

§ 173-15 Fuel restrictions for boilers.

All boilers used in connection with steam shovels or used for stationary work shall, when operated, use only smokeless-type (bituminous) or anthracite coal, coke, oil, gas or other smokeless fuel.

§ 173-16 Smoke indicators.

The owner or operator of every fuel- or refuse-burning plant, equipment or device, except those in which the only fuel is gas or oil and except those in buildings used exclusively for private residences containing less than five dwelling units or flats, shall provide means whereby the fireman may be enabled to know, without leaving the boiler or furnace room, whether or not prohibited smoke is issuing from the stack. Such means of observation shall be one of the following:
A. 
A window or other opening through which an unobstructed view of the top of the stack may be had from the boiler or furnace room.
B. 
A mirror, so placed as to reflect the top of the stack, visible from the boiler or furnace room.
C. 
A smoke indicator installed so as to accurately indicate the type, volume and character of smoke being discharged.

§ 173-17 Right of entry for inspections.

A. 
The Smoke Inspector and/or his assistants shall be permitted to enter any premises within the town and to inspect said premises and the fuel- or refuse-burning plant, equipment or device therein at all reasonable hours for the purpose of administering and enforcing the provisions of this chapter.
B. 
No person shall in any manner hinder, obstruct, delay, resist, prevent or interfere with the agents or employees of the town while administering or enforcing the provisions of this chapter nor refuse them entrance to premises for that purpose.

§ 173-18 Penalties for offenses.

[Amended 5-21-1984 by L.L. No. 8-1984]
A. 
Any violation by a person, firm or corporation of any provision of this chapter shall be deemed a violation punishable by a fine not to exceed $250 or by imprisonment for a period not to exceed 15 days, or both.
B. 
Any person who takes part in or assists in any violation of this chapter shall also be subject to the penalties provided herein.
C. 
Each day that a violation of this chapter is committed or permitted to exist shall constitute a separate offense.
D. 
Each unlawful emission of dense smoke, dust, soot, cinders, fly ash, noxious acids, fumes or gases shall constitute a separate violation.
E. 
A person participating in any such violation, either as owner, proprietor, lessee, agent, tenant, manager, superintendent, captain, engineer, fireman or janitor, or otherwise, shall be liable therefor and subject to the fines or penalties fixed by this chapter upon conviction thereof.