[HISTORY: Adopted by the Town Board of the
Town of Clinton 4-12-1994 by L.L. No. 3-1994. Amendments noted where
applicable.]
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:
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.
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.
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.
The Planning Board of the Town of Clinton, Dutchess County,
New York.
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.
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.
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.
The Town of Clinton, Dutchess County, New York.
The Town of Clinton Town Board, its governing body.
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.
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]
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]
(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:
(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.
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.
