[Amended 6-22-2020 by
Art. 11]
The primary intent of this bylaw is to establish guidelines
and regulate the removal, importation, and filling of any material
for the protection of human health, public safety, welfare, and the
integrity of the natural resources, including aquifers, bodies of
water and the wetlands of the Town of Dudley.
The following definitions shall apply to this bylaw:
The Board of Selectmen.
Soil, loam, sand, gravel, borrow, rock, sod, peat, humus,
clay, coal or other earth material.
To dig out and remove material.
To deposit, use, redistribute or move any material on or
within any land area or water body. Also, any material which is used
for this purpose.
To bring any material from outside of the Town to any land
area or water body within the Town.
Any geologic, man-made, recycled or processed material including
in its entirety or as a proportion containing clay, rock, sand, gravel,
topsoil, loam, humus, peat, sod, borrow rock, sediment, wood, plant
or animal matter, glass, paper, plastic, metal, bituminous pavement,
or concrete.
The removal, importation or filling of any material to or from
any parcel of land in the Town of Dudley is prohibited unless a written
permit therefor is obtained first from the Board. If said fill project
is in excess of 100,000 cubic yards over the life of the project or
projects, an Administrative Consent Order from the Massachusetts Department
of Environmental Protection or successor agencies or their equivalent
is required as part of the permitting process as herein provided.
A.
No permit shall be necessary when material must be removed, imported
or filled for the following:
(1)
To
construct a single- or multi-family building being built in accordance
with a permit issued by the Building Inspector. The importation or
removal of up to 1,500 cubic yards of material shall be exempt from
permitting. A permit from the Board is required for importation or
removal of material in excess of 1,500 cubic yards.
(2)
To
construct a commercial building or facility that has met Board and
Town approvals for a permit. Importation or removal of material for
the purpose of such construction is permitted up to the amounts necessary
to complete the project according to approved plans. Additional importation
or removal beyond the scope of construction of over 3,000 cubic yards
shall require a permit from the Board, except for municipal or school
buildings or facilities.
(3)
To
construct a public or private way within the Town that has met all
requisite Town approvals and after the developer has put a covenant
in place and recorded said covenant along with the conditions of approval
by the Board, or by the Planning Board, as apt. Additional importation
or removal of the material beyond the scope of construction of over
3,000 cubic yards shall require a permit from the Board. Definitive
subdivision plans approved by the Planning Board pursuant to the Subdivision
Control Law[1] are exempt from this bylaw.
[1]
Editor's Note: See MGL c. 41, § 81K et seq.
(4)
To
operate a licensed landscape/materials facility to sell/remove materials
produced off site and hauled into said facility.
(5)
General
property improvement or maintenance, such as the installation of swimming
pools, landscaping, construction of septic systems, and/or other property
improvement or maintenance. The importation or removal of up to 1,500
cubic yards of material for the purpose of such improvement or maintenance
shall be exempt from permitting. A permit from the Board is required
for importation or removal beyond 1,500 cubic yards. Removal, importation,
or filling of materials is not considered part of a normal operation
of a farm or garden and is not exempt from this bylaw.
B.
Any project or series of projects which involves over the lifetime
of the project the importation or filling of greater than 100,000
cubic yards of material as referenced in the beginning of this section
for the purpose of reclamation or any other purpose may be regulated
by Administrative Consent Order (ACO) and/or other state or federal
regulations. (See Interim Policy on the Re-Use of Soil for Large Reclamation
Projects, Policy # COMM-15-01.) If the project is in compliance with
an ACO and/or other state or federal regulations, the Board may deem
that the requirements of this bylaw are satisfied and shall issue
a permit stating that the project is in compliance with this bylaw.
Such a permit must be issued before a project can commence. If at
any time during the project the Board determines that there are violations
of the terms of the ACO and/or any other applicable state or federal
regulations, the Board shall issue a cease-and-desist order and suspend
or revoke the permit.
A.
Any person wishing to obtain a permit to remove, import or fill material
to or from any parcel of land within the Town shall file a written
application with the Board, which shall include the following information
and documentation:
(1)
The legal name and address of the applicant. The name, address and
telephone number of the individual overseeing the proposed excavation
and/or fill project.
(2)
The location of the proposed excavation and/or fill project.
(3)
The legal name and address of the owner of the property to be filled
or excavated.
(4)
A list of abutters, and abutters to abutters, within 300 feet of
the location of the proposed excavation and/or fill project, as appearing
in the records maintained by the Assessor's office of the Town.
(5)
A site plan of the land prepared by a registered land surveyor or
registered professional engineer, as apt, showing the existing contours
and topography of the entire site of the proposed excavation and all
abutting land within 100 feet of the proposed excavation and/or fill
project. The site plan shall locate monuments sufficient to delineate
the perimeter of the site at intervals of not less than 500 feet.
(a)
Existing conditions, including grades, man-made features, elevations,
property boundaries, dimensions, owners of the land who are entitled
to notice under this bylaw, access points, water bodies and watercourses,
wetlands, and environmental sample locations.
(b)
Process diagrams indicating removal and/or fill sequence, transport
routes, and security measures.
(c)
Drainage, water flow and sedimentation control before and after
the proposed removal and/or filling, and stormwater and erosion control
and groundwater recharge structures and features to be utilized during
removal and/or fill operations.
(d)
Final grade plans depicting proposed finish elevations, slopes,
permanent stormwater and erosion control and groundwater recharge
structures and features, the methods of final stabilization of all
material and the proposed cover material and cover vegetation.
(e)
Unless otherwise determined by the permit granting authority,
map scales shall be no more than 60 feet to the inch and elevation
contour intervals shall not exceed two feet. Elevation contours are
required only for areas of removal and/or fill, 100 feet beyond the
perimeter of the removal and/or fill areas and along abutting property
lines.
(6)
The applicant shall submit an appropriate number of copies to the
Board to allow members to review the application and to distribute
a copy to all appropriate Town officials and boards for their review.
To allow other Town boards and officials time to comment and make
recommendations on applications, the Board shall wait 45 days after
submission of a complete application before issuing a permit.
(7)
For filling projects a soil management plan shall be submitted and
signed by a Massachusetts licensed site professional (LSP). The LSP
shall be hired by the Town at the applicant's expense. All charges
incurred by the LSP related to any aspect of the project shall be
paid by the applicant. Failure of any applicant or permit holder to
make timely payments for these services shall be grounds for denial
of a permit and/or for issuance of a cease-and-desist order and/or
for revocation of the permit. The following shall be included in the
soil management plan:
(a)
A statement by the LSP verifying that the soil management plan
meets the requirements of the Excavation/Fill Bylaw of the Town of
Dudley and other applicable federal and state law or regulation pertaining
to the transport, use and/or disposal of any materials for fill;
(b)
That bills of lading will be required for each load of material
transported in or within the Town. Each bill of lading shall state
the point of origin of the material, the exact location where the
material was placed, the amount of material by weight or volume, and
the date of transport;
(c)
Complete descriptions of pre-fill environmental conditions and
findings and sample locations;
(d)
Procedures for verification of material origin and acceptance;
(e)
Recordkeeping practices;
(f)
Site security, fill operation inspection and site control;
(g)
Transport routes, times and days of operation, locations of
equipment parking and storage and duration of fill activities;
(h)
Qualifications of applicant personnel responsible for adhering
to the soil management plan and this bylaw;
(i)
Erosion, dust, and stormwater controls and inspection and maintenance
thereof;
(j)
Effects of the filling on groundwater recharge;
(k)
Quality assurance/quality control procedures;
(l)
Emergency response and notification procedures, including telephone
numbers and contact individuals/firms;
(m)
Total proposed volume of materials used for fill;
(n)
Daily personnel procedures and operation management procedures,
including types, numbers, locations and hours of operation of any
processing equipment on site;
(o)
Environmental monitoring plan to maintain protection of human
health, public safety, welfare and the environment during the following
fill operations;
(p)
Cover material, revegetation, erosion and pollution control,
and monitoring and maintenance plan; and
(q)
Any other information required by the Board.
(8)
A plan of the land showing the proposed contours and topography of
the site when the proposed excavation and/or fill project is completed,
showing a typical cross section of the proposed final cover as well
as any drainage or other structures that may be necessary.
(9)
A proposal concerning the provisions of security for the final completion
of the excavation and/or fill project in accordance with plans submitted
and any additional conditions that may be attached to the permit.
B.
The Board shall submit application materials to the Building Inspector
for review, approval and comments if a residential use shall occur.
[Amended 6-22-2020 by
Art. 11]
C.
The Board may, by regulation, prescribe forms for initial applications,
extensions, and renewals, and such forms may require additional information
as the Board shall determine to be necessary.
A.
Prior to issuing any permit hereunder, the Board shall hold a public
hearing, notice of which shall be given by publication in a newspaper
having general circulation within the Town and copies of which are
mailed to each of the abutters shown on the list submitted with the
application, at least seven days prior to the hearing.
B.
Prior to such hearing the Board shall also send notice of the application
to the Board of Health, Conservation Commission, and Planning Board
and request such comment or advice as said Boards or Commission may
deem appropriate.
C.
If, after hearing, the Board determines that the permit application conforms to the requirements of § 158-3 of this bylaw, and that the permitted operation would conform with the requirements of public health and welfare and be consistent with the sound development of the Town, the Board may issue such permit upon the terms specified in this bylaw and subject to such additional conditions the Board may determine to be necessary.
Every permit issued shall be subject to the following conditions:
A.
The portions of the permitted premises which have been filled or
excavated shall be graded and leveled to conform to the approved final
contour plan at least annually.
B.
After final grading and leveling and not later than October 15 of
each year, the filled or the excavated portion shall be covered with
not less than four inches of suitable topsoil, and shall be seeded
and planted with suitable ground cover within 200 feet of current
excavation operations. All final contour slopes will conform to a
two to one maximum. That is for every two feet of horizontal travel
only a one-foot drop maximum is allowed.
C.
No fill or excavation shall be undertaken within 100 feet of a public
or private way or within 150 feet of a building or structure, unless
the Board specifically finds that such fill or excavation will not
undermine the way or structure or otherwise be seriously detrimental
to the neighborhood and such finding is endorsed on the permit.
D.
No swamp, pond, watercourse, or other wetland will be altered or
polluted in any way without all necessary permits, and no watercourses,
drains, swales, culverts or other water channeling contours or structures
shall be constructed unless shown on the plan submitted and approved.
E.
For all filling projects, materials shall include only sand gravel,
clay stone, quarried rock or other subsurface products free from solid
waste, with an aggregate size of six inches or less, and have no solid
waste, refuse, junk, industrial waste, or volatile, explosive or flammable
materials. This material shall have no concentration of oil or hazardous
material, toxic substance or infectious biological material greater
than federal, state or local reportable or action criteria or greater
than pre-fill concentration of oil or hazardous material, toxic substance
or infectious biological material prevailing in the area to be filled.
The fill material shall also be free from organic material, such as
trees, stumps, waste, building materials, and construction and demolition
debris and shall contain 10% or less of total organic carbon by lab
analysis.
F.
For all filling projects, the Board may require such borings and
test pits, inspections, monitoring, certifications, reports and test
by licensed site professionals, engineers, laboratories and/or other
qualified persons needed to evaluate the application and/or to monitor
performance under a permit and/or establish compliance with the conditions
of a permit and this bylaw. It shall be a condition of all permits
that the applicant pay for all such borings and test pits, inspections,
monitoring, certifications, reports and tests and that they be conducted
by persons selected by and responsible to the Board. Failure of any
applicant or permit holder to make timely payment for any borings
and test pits, inspection, certification, monitoring, report or test
or to carry out any step or to submit any information required by
the Board shall be grounds for denial of a permit and/or for issuance
of a cease-and-desist order and/or for revocation of the permit.
G.
No fill or excavation will begin until security by surety bond, cash,
or other approved method is provided to ensure that the excavation
will be carried out in accordance with the permit and that the final
grades and cover are provided. Such security shall not be less than
$2,000 for each acre of the proposed site. The security shall be released
when suitable vegetation has been reestablished on the portion of
the site for which it was provided.
Every permit granted under this bylaw shall be valid for a period not to exceed one year. Any permit issued may be renewed by the Board, without hearing, if the proposed fill or excavation will be conducted in accordance with a plan previously approved and if the annual report required by § 158-8, Documentation and inspection, of this bylaw has been filed. Any expansion or extension of a permitted excavation will also be subject to a public hearing.
A.
For projects only involving excavation and removal, one month prior
to permit expiration the permitted operator of an excavation shall
submit a report showing the following information for the preceding
permitted period of operation:
B.
For projects involving any filling, the permit holder shall, at the
end of each calendar month during which any filling activity occurred,
provide a dated letter from the LSP stating the following:
(1)
That the material used for fill is not otherwise prohibited from
use as fill material in accordance with this bylaw or other applicable
federal or state laws, regulations, standards or guidelines.
(2)
That the LSP has compared analytical results of testing of the materials
to the existing, pre-fill conditions at the fill location and determined
that the concentrations of oil or hazardous material, toxic substance
or infectious biological material in the materials intended for use
as fill are not greater than existing, pre-fill concentrations for
that location.
(3)
That such analytical results are based on sampling techniques which
adequately assess the material.
(4)
That bills of lading for each load of a material have been reviewed
by the LSP and that each bill of lading is on file and available for
review by the Town.
C.
Every permitted excavation or fill project shall be open for inspection
by the proper local officials and the Town's Engineer at all reasonable
times. Every November the Town Engineer, at the applicant's expense,
will do an annual site visit to verify that proper restoration has
been completed according to the submitted plan and report findings
to the Board.
The Board of Selectmen shall set all application and renewal
fees. The applicant is responsible for peer review fees for new applications,
annual renewal of applications, inspections, plan review and site
visits for the Town's Engineer as deemed necessary.
Each day of fill or excavation without the permit required,
or otherwise, in violation of this bylaw shall constitute a separate
offense and shall be individually punishable by the fine provided
in MGL c. 40, § 21, Clause 17, or MGL c. 40, § 21D,
whichever is applicable.
