Town of Clinton, NY
Dutchess County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Clinton 4-12-1994 by L.L. No. 3-1994. Amendments noted where applicable.]
GENERAL REFERENCES
Building construction and fire prevention — See Ch. 112.
Fines and penalties — See Ch. 137.
Subdivision of land — See Ch. 206.
Zoning — See Ch. 250.
This chapter shall be known and may be cited as the “Town of Clinton Natural Gas Plant and Power Plant Site Study and Operations Local Law.”
The Town Board of the Town of Clinton hereby finds and determines that construction, operation and expansion of the use of natural gas and power plant facilities, as hereinafter defined, within the Town of Clinton or any part thereof, and the environmental impacts associated therewith, pose a potential threat to the health and safety of the residents of the Town of Clinton due to the potential for contamination of air, groundwater, and adjacent properties unless proper mitigation measures are observed. It is the purpose and intent of this chapter, pursuant to the Environmental Quality Review Act, Chapter 250, Zoning, or Building Codes, Rules and Regulations of the State of New York in the Town of Clinton, to provide for the health, safety and welfare of the residents of the Town of Clinton, and the owners of property within the Town, by regulating the construction, operation and expansion of natural gas and power plant facilities within the Town of Clinton.
For the purpose of this chapter, the following terms shall have the meanings set forth hereinafter:
APPLICANT
Any person filing an application for siting as well as a permit to own, operate or expand the use of a gas or power plant facility under this chapter and must be the owner or operator of the power plant facility and not simply a designer or representative of the applicant.
CONSTRUCTION
Any physical modification to an existing or potential site at which a potential or proposed gas or power plant facility is to be located, including, but not limited to, site preparation and grading of any proposed site.
PERSON
Any individual, public or private corporation, political subdivision, government agency, authority, department or bureau of the state, municipality, industry, copartnership, association, firm, trust, estate, or any other legal entity whatsoever.
PLANNING BOARD
The Planning Board of the Town of Clinton, Dutchess County, New York.
POWER FACILITY or FACILITY
A natural gas or electric power plant facility or power-generating facility or any supporting facility or substation or natural gas facility or electric or natural gas transmission system which implements the use of a natural gas or electric facility.
POWER PLANT FACILITY or POWER-GENERATING FACILITY or POWER FACILITY
A facility whose primary purpose is the generation of electric power, powered by non-fossil or fossil fuel (including natural gas, oil, coal or any other fossil fuel), or by any other means whatsoever. "Natural gas facility" means any facility generating or transmitting for any purpose natural gas, propane or any derivative fuel from natural gas. This definition of a power or natural gas facility includes any portion of or supporting facility or substation relating to such plant or facility, including land areas forming the boundary of the actual facility and supporting facilities or substations and all other land areas incorporated by the plant, including, but not limited to, buffer zones. The term "power plant" includes a "co-generation facility" as that term is defined in Article 1, § 2 of the Public Service Law of the State of New York.
SUBSTATION or POWER SUBSTATION and SUPPORTING FACILITY or POWER SUPPORTING FACILITY and NATURAL GAS FACILITY
Any device or structure including land areas forming the boundaries of the actual device or structure and all other land areas incorporated by the device or structure, including but not limited to buffer zones relating to a power facility or natural gas facility. This definition includes all substations, supporting facilities, transmission systems and any related structures or devices in the Town of Clinton regardless of the point of origin of the electric power or natural gas that they are related to.
TOWN
The Town of Clinton, Dutchess County, New York.
TOWN BOARD
The Town of Clinton Town Board, its governing body.
TOWN ENGINEER
A professional engineer licensed by the State of New York or engineering company and retained by the Town Board on the behalf of the Town.
A. 
This chapter shall regulate the siting, construction and operation of natural gas or power plant facilities located within the Town of Clinton.
B. 
On or after the effective date of this chapter, no person shall commence the preparation or modification of a site for, or begin the construction of a natural gas or power plant facility, supporting facility or substation in the Town of Clinton without having first obtained a certificate issued with respect to the facility by the Town Planning Board pursuant to this chapter. Any facility with respect to which a certificate is issued shall not thereafter be built, maintained, or operated except in conformity with the certificate and any terms, limitations, or conditions contained therein as provided by this chapter, provided that nothing herein shall exempt any facility from compliance with federal law, state law and regulations thereunder subsequently adopted or from any other municipal laws and regulations of the Town of Clinton.
C. 
Exempt facilities. This chapter shall not apply to and the following facilities are exempt from regulation under this chapter:
(1) 
Any natural gas or power facility over which any agency or department of the federal government has exclusive jurisdiction or has jurisdiction concurrent with that of the State of New York and has exercised such jurisdiction to the exclusion of regulation of the facility by the state.
(2) 
Any natural gas or power facility over which the State of New York and the Public Service Commission have exclusive jurisdiction pursuant to the Public Service Law of the State of New York.
(3) 
Any natural gas or power facility which provides emergency or standby equipment and power for an existing manufacturing or industrial facility and which:
(a) 
Does not generate the power or provide the natural gas for the purpose of resale; and
(b) 
Operates fewer than three days per month.
A. 
Preapplication procedure. Any person proposing to submit an application for a natural gas or power facility under this chapter must consult with the Town as to any study, program of studies, engineering plans, and other reports made or to be made which are required to be submitted under this chapter in support of the application. The Town shall review the proposed facility with the applicant as well as explain and set forth to the applicant all procedures and documents in support of the application required under this chapter. During the preapplication procedure, particular attention shall be given to coordinating all municipal hearings and reviews required by this chapter, to the extent practicable and permitted by law.
B. 
Application for a permit to construct and operate a facility.
(1) 
An applicant for a certificate to construct and operate a power-generating facility shall file with the Town Clerk of the Town of Clinton an application, in such form as the Town may prescribe, containing the following information and materials:
(a) 
A description of the proposed site and a description of the facility to be built thereon, including available site information, including maps and descriptions, present and proposed development plans, source and volume of water required for facility operation and cooling, and appropriate geological, aesthetic, ecological, biological, water supply, meteorological and population data;
(b) 
A description of any reasonable alternate locations or location within the Town for, and alternate practical sources of power to, the proposed facility; a description of the comparative advantages and disadvantages of each such location and source; and a statement of the reasons why the primary proposed location and source is best suited to promote the health and welfare of the residents of the Town of Clinton, including the recreational and other concurrent uses which the site may serve;
(c) 
Studies, identifying the author and date thereof, which have been made of the expected environmental impact and safety of the facility both during its construction and operation, which are sufficient to identify:
[1] 
The anticipated gasses, liquid and solid wastes to be produced at the facility, including their source, anticipated volumes, composition and temperature, and such other attributes as the Town may specify and the probable level of noise during the construction and operation of the facility.
[2] 
The treatment process to reduce wastes to be released into the environment, the manner of disposal for waste retained (including excess heat) and measures for noise abatement.
[3] 
The anticipated volumes of waste to be released to the environment under any operating condition of the facility, including meteorological, hydrological and other information needed to support such estimates.
[4] 
The conceptual, architectural and engineering plans indicating compatibility of the facility with the environment.
[5] 
How the construction and operation of the facility, including transportation and disposal of wastes, would comply with the environmental, health and safety standards, requirements, regulations and rules under federal, state and local laws.
[6] 
A detailed environmental assessment form pursuant to Article 8 of the Environmental Conservation Law of the State of New York and applicable local laws of the Town of Clinton, which shall include a description and evaluation of the nature of the probable environmental impact, including specification of the predictable adverse effects on the natural environment and ecology, public health and safety, scenic, historic, cultural and recreational value, water and air quality, wildlife and an evaluation of measures to mitigate adverse effects.
(d) 
Preliminary engineering plans with elevations showing the use, location and dimensions of proposed buildings and land areas, driveways, driveway intersection with streets, maneuvering areas, parking areas, utility and utility easements, signs and railroad sidings.
(e) 
A storm drainage and grading plan regarding proposed handling of surface water runoff and erosion control.
(f) 
A survey prepared by a licensed surveyor or engineer showing the precise site boundaries.
(g) 
Name and address of the owner and operator of the proposed facility. If the owner and operator is a corporation, list the state of incorporation plus the names and addresses of all officers and directors.
(h) 
The applicant shall submit financial statements prepared by his/her certified public accountant for the three full years prior to the application, or such other financial data agreed upon by the Planning Board and the applicant at the preapplication conference showing sufficient finances and operating expenses to execute construction and operation of the proposed facility according to the plans submitted.
(i) 
Nature of the soils at or within 1,000 feet of the site.
(j) 
Depth of the water table at or within 1,000 feet of the site.
(k) 
Location, nature and size of aquifers, state-regulated wetlands and floodplains at or within 1,000 feet of the site.
(l) 
Direction of present historic groundwater flows at or within 1,000 feet of the site.
(m) 
Location, nature and size of all surface waters at and/or within 1,000 feet of the site.
(n) 
Proximity of the site to private residences, public buildings or property, school facilities, places of work or other areas where individuals may be present.
(o) 
Detailed plans of any places of proposed storage of fuels, including, but not limited to, fossil fuels associated with the operation of this facility.
(p) 
Such other information as the applicant may consider relevant or as may be required by the Planning Board. Copies of the application including the required information stated above must be filed with the Planning Board and will be available for public inspection.
C. 
Hearing and decisions.
(1) 
The Planning Board shall fix a time, as soon as practicable, but in no event more than 90 days from the date an application is made and an environmental assessment form is filed, for a hearing relating to such application. The Planning Board shall give public notice thereof by the publication in the official newspaper, or any supplemental newspapers, of the Town of Clinton of such hearing at least 14 days prior to the date thereof.
(2) 
In addition, at least 14 days prior to the hearing, the applicant must file with the Town proof of personal service of a copy of the completed application and requisite environmental assessment upon:
(a) 
The Dutchess County Planning Department;
(b) 
The Town of Clinton Fire District;
(c) 
The New York State Department of Transportation;
(d) 
The Dutchess County Health Department;
(e) 
The New York State Department of Environmental Conservation;
(f) 
The Town of Clinton Planning Board; and
(g) 
The Clerk of each and every town neighboring, adjoining or contiguous to the Town of Clinton.
(3) 
The Planning Board shall render a decision on the application as soon as practicable, but in no event more than 62 days after such hearing; provided, however, the time within which the Planning Board must render its decision may be extended by mutual consent of the applicant and the Planning Board. The decision of the Planning Board shall be filed in the office of the Town Clerk within seven days and a copy thereof mailed to the applicant. The Planning Board shall render a decision upon the record either to grant or deny the application as filed or to certify the facility upon such terms, conditions, limitations or modifications of the construction or operation of the facility as the Planning Board deems appropriate. [1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
The Town may not grant a certificate for the construction or operation of a natural gas or power facility either as proposed or as modified by the Planning Board unless it first finds and determines:
A. 
The nature of the probable environmental impact, including a specification of the predictable adverse effect on the normal environment and ecology, public health and safety, aesthetics, scenic, historic and recreational value, forest and parks, air and water quality, fish and other marine and wildlife.
B. 
That the facility:
(1) 
Represents the minimum adverse environmental impact, considering the state of available technology, the nature and economics of the various alternatives, the interests of the Town with respect to the aesthetics, preservation of historic sights, forests and parks, fish and wildlife, viable agricultural lands, and other pertinent considerations.
(2) 
Is compatible with the public health and safety.
(3) 
Will not discharge any effluent that will be in contravention of the standards adopted by the Department of Environmental Conservation.
(4) 
Is in compliance with criteria and requirements of this chapter.
(5) 
Has harmonious relationship with uses located in adjacent districts as reflected in the Master Plan, that maximum safety of vehicular access and egress from the site to existing proposed streets and highways is guaranteed, that the facility provides maximum adequacy of interior circulation and parking facilities with particular attention to vehicular and pedestrian safety and railroad sidings, that the facility maintains the adequacy of traditional landscaping and setbacks in regard to achieving maximum compatibility and protection to adjacent property, and that the facility achieves maximum protection, provides environmental safeguards in regard to protection of the local environment and of adjacent properties.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
(6) 
Conforms to, and is in compliance with, all zoning laws, ordinances, rules and regulations of the Town.
(7) 
Requires sewer flow and water volume which the Town has the ability and capacity to provide at all times, including but not limited to peak hours of operation.
(8) 
Will be in full compliance with all applicable laws, rules and regulations of the United States of America, the State of New York, County of Dutchess and the Town of Clinton in effect on the date of submission of the permit application pertaining to construction and operation of this facility, including all requirements of this chapter, paying particular attention to the regulations and performance standards of § 168-8 contained herein relating to the operation of power-generating facilities.
A. 
The applicant's acceptance of the permit of the Town of Clinton shall be indicative of his/her consent to execute, and the applicant shall execute, an indemnification agreement prepared by the Town which shall indemnify and save harmless the Town of Clinton and all officers, agents and employees of the Town from and against any and all losses, claims, damages, costs, judgments, lawsuits, attorney fees, expenses, risks of loss or liability of whatever nature arising out of injuries to persons or property of whatever kind or nature as a result of operation of the power facility with the Town of Clinton and which are attributable to the negligence, omission of duty, misfeasance or wrongful act on the part of the applicant, its employees or agents.
B. 
Insurance.
(1) 
Prior to issuance of a permit hereunder, the applicant shall present to the Town certificates of insurance which name the Town of Clinton as additional named insured, evidencing the acquisition of liability insurance coverage, including pollution coverage, in at least the amounts of:
(a) 
Death/bodily injury: $50,000,000; and
(b) 
Property damage: $25,000,000.
(2) 
Upon good cause shown by the facility, the Town Board may by resolution decrease the amount of liability insurance required by this chapter. This insurance must be maintained throughout the term of the permit issued by the Town of Clinton to construct and operate the facility and for a three-year additional period after termination of the permit. The certificates must provide for 30 days' notice to the Town prior to cancellation of coverage. Failure of the applicant to maintain this insurance coverage will result in immediate revocation of the permit issued hereunder.
C. 
Any approval of the application and issuance of permit by the Planning Board pursuant to this chapter will be valid only for so long as the premises which are the subject of the site plan approval are used for the specific use and purposes stated in that application. If at any future time the applicant wishes to dedicate the premises to any other use, he/she must make a new application in accordance with the provisions of this chapter.
D. 
The permit shall be personal with the applicant. The permit does not go with the title of the land nor may it be sold, assigned, transferred or disposed of in any manner without the prior written consent and approval of the Town Board. Consent and approval will not be withheld unreasonably. Any proposed purchaser, assignee, or transferee must demonstrate to the Town Board his/her ability to comply in all respects with all provisions and conditions of the existing permit to construct and operate the facility, as well as all other provisions and requirements of this chapter. Any holder of such permit who otherwise allows the permit to be used by any other person, and any person who uses a permit granted to any other person, will be guilty of an offense under this chapter.
E. 
Any member of the Town Board, Planning Board or any of its duly authorized representatives must be granted access to the area of the activity or business of the applicant at all reasonable hours to inspect for compliance herewith.
F. 
At the preapplication conference, or at the time a permit is issued, the Town and the applicant will review and determine what inspections are required of the facility under this chapter and by any other state or federal licensing agencies. In addition, the content of the inspection reports and how often the inspection reports are to be supplied to the Town for analysis by the Town Engineer will be addressed. Should the Town, after review and analysis of the reports, determine that further inspection of the facility for compliance herewith is necessary, the facility must permit the Town, at the Town's discretion, to appoint an engineer and representative who will act as an independent inspector during the life of the permit and who will be paid by the Town and reimbursed by the facility. Payment must be made by the facility to the Town upon request therefor, when all expenses are properly documented. The representative will report his/her findings relating to the operation of the facility to the Planning Board, and the report will be made available to the applicant. The engineering representative will not be empowered to interrupt, interfere with, cause delay, impede in any way, or stop the operation of the facility.
G. 
The facility agrees to give the inspector access to any and all areas of the plant and to review all aspects of the facility's operation, including, but not limited to, physical inspection of the facility, monitoring of all air emissions and air purification systems relative to the facility's emissions, all areas of fuel storage located at the facility, the treatment process to reduce waste to be released into the environment by the facility, and review of the manner of disposal for waste retained as well as all other aspects of operation pertinent to the facility, in order to determine and ensure that the facility is operating in full compliance with all applicable laws, rules and regulations of the United States of America, the State of New York, County of Dutchess, and the Town of Clinton, including all requirements of this chapter and the regulations and performance standards of § 168-8 contained herein.
H. 
If, upon inspection, the Town determines that the facility fails to comply with all applicable rules and regulations of the United States of America, the State of New York, the County of Dutchess or Town of Clinton, and the conditions of the permit to operate issued to the facility under this chapter, then the facility and the persons responsible for the operation thereof are subject to, among other things, the penalty provisions contained in § 168-10 of this chapter.
Any facility for which a permit to construct and operate has been issued pursuant to this chapter must utilize the best available air and water pollution abatement technology. In addition, at all times during construction and/or operation, the facility must meet or exceed all existing applicable laws of the United States of America, the State of New York, County of Dutchess and the Town of Clinton regulating construction and/or operation of such facilities, including but not limited to:
A. 
Generally.
(1) 
The State Environmental Quality Review Act (SEQRA) (New York Environmental Conservation Law § 8-0101 et seq.).
(2) 
The National Environmental Policy Act (NERA) (42 U.S.C. § 4321 et seq.).
(3) 
Federal Aviation Administration Construction Notice. The Federal Aviation Administration must approve all construction over 200 feet high if the construction is located within an instrument approach area of local airports.
B. 
Air quality.
(1) 
The Clean Air Act (CAA) (42 U.S.C. § 7401 et seq.) which includes but is not limited to:
(2) 
National Ambient Air Quality Standards (NAAQS) which require that the proposed construction and operation of the facility will not result in a violation of the standards for ambient air quality established to protect the health and welfare of the public by adversely impacting the existing air quality in the vicinity of the facility (40 CPR Part 50).
(3) 
PSD. Prevention of significant air quality determination permit which directs that the facilities in certain listed categories obtain the permit if they have the potential to emit 100 tons of pollutants per year (40 CFR 52.21).
(4) 
A New Source Review Permit under the Clean Air Act, if applicable (42 U.S.C. § 7410 et seq.).
(5) 
New Source Performance Standards (NSPS) (pursuant to the Clean Air Act, 42 U.S.C. § 7401 et seq.).
(6) 
Certificate of approval/air pollution episode. Significant air contamination sources require an episode action plan proposing its action in the event of an air pollution episode. This action plan must be approved by the Commissioner of the New York State Department of Environmental Conservation.
(7) 
Certificate to construct/operate a stationary combustion installation. A New York State Department of Environmental Conservation permit, if applicable, is required to construct a new stationary combustion installation or to modify an existing source. In addition, the facility must obtain a separate permit to operate.
(8) 
Certificate to operate a process, exhaust and/or ventilation system. An additional DEC permit is required to operate any air contamination source.
(9) 
State Acid Deposition Control Act (SADCA) (New York Environmental Conservation Law § 19-0901 et seq.). Any facility of this nature must meet regulations established by the New York State Department of Environmental Conservation limiting the emissions of acid precursors (sulfur dioxide and nitrogen oxides) from any major steam electric-generating facilities and stationary sources.
C. 
Water quality and wetlands.
(1) 
State pollutant discharge eliminations systems permit (SPDES) (New York Environmental Conservation Law § 17-0801 et seq.). The facility must apply for and obtain this permit regulating effluent discharges (including thermal releases to surface and groundwaters within the State of New York).
(2) 
New York State 401 water quality certification. The New York State Department of Environmental Conservation must certify that federal water quality standards will not be degraded by the facility's operation.
(3) 
Water resources (New York Environmental Conservation Law § 15-0101 et seq.).
D. 
Waste disposal requirements.
(1) 
Hazardous waste treatment, storage and disposal facility permit. Any facility that generates, treats, stores or disposes of any hazardous waste as defined by the New York State Department of Environmental Conservation is required to obtain the necessary permits for the treatment, storage and disposal of the wastes.
(2) 
Waste transporter permit. The New York State Department of Environmental Conservation requires this permit if the facility transports any ash or waste designated or defined as hazardous waste within the State of New York.
E. 
Other permits/approvals.
(1) 
Floodplain development permit. If the proposed facility is constructed within the one-hundred-year floodplain, development and construction must comply with all local and state laws regarding development within the one-hundred-year floodplain area.
(2) 
Building permit. The construction of the facility requires a Town building permit and will be subject to all rules and regulations relative to the issuance of building permits, including site plan approval and requirements pursuant to and including Chapter 250, Zoning, §§ 250-28 and 250-96, and any other local laws pertaining thereto.
(3) 
Special use permit. Any facility constructed pursuant to this chapter must meet all guidelines and requirements pursuant to this chapter for the issuance of special permits to construct and operate the facility.
A. 
The minimum fee for an application for a permit to construct and operate a facility under this chapter shall be as set from time to time by resolution of the Town Board, payable at the time the application is submitted, to be used by the Town to engage services of qualified professionals or experts to review and report on the application and the facts, allegations or data set forth therein. The applicant must pay for all Town costs associated with processing this application. The application fee required shall be deposited in a special account maintained by the Supervisor of the Town of Clinton and the monies shall be invested at interest. Any monies not expended by the Town of Clinton under the provisions of this chapter shall be returned to the applicant together with any interest earned on the monies so deposited. In the event the Town expends the minimum application fee deposited, the applicant shall be responsible for contributing the difference between the previously paid up to the actual expenses of the Town should the Town so require. The applicant shall be required to guarantee future payment on the application fee by presenting the Town a letter of credit or some other form of financial responsibility acceptable to the Town at the time the application is submitted.
B. 
Upon good cause shown by the applicant, the Town Board may by resolution decrease the application fee.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
Upon conviction, a violation of this chapter shall be deemed a Violation Zoning, punishable as set forth in Chapter 137, Fines and Penalties. In addition to the above-provided penalties and punishment, the Town Board in its discretion may immediately suspend the permit to operate the facility or, in the alternative, may maintain an action or proceeding in the name of the Town in a court of competent jurisdiction to compel compliance with or to restrain by injunction the violation of the chapter. The permit to operate also may be revoked by the Town Board for any violation or violations of this chapter which continue for a period of 15 consecutive days or more. Any revocation hereunder shall be subject to a public hearing thereon at which the applicant shall have an opportunity to be heard.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).