[HISTORY: Adopted by the Borough Council of the Borough of Oakmont as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 205.
[Adopted 7-3-2017 by Ord. No. O25-2017]
As used in this article, the following terms shall have the meanings indicated:
APPLICANT
A person, entity, business or corporation seeking to perform energy source operations within the municipal boundaries of Oakmont Borough.
ENERGY SOURCE OPERATIONS
Operations that involve the transmittal of seismic waves to model the geophysical properties of the Earth's crust and/or subsurface.
It shall be unlawful for any person to conduct any energy source operations or exploration activities on Borough property, streets and rights-of-way regarding oil, gas, and/or other materials by the use of energy source operations, including without limitation weight drops, explosives, and/or vibrating machines, thumper trucks or any other vehicles or equipment that causes vibrations, without first obtaining a permit therefor from the Borough.
A. 
Application for a two-year permit hereunder shall be made with the Oakmont Borough Manager to be reviewed by the Borough Engineer. Such application shall contain the following information:
(1) 
Name of the applicant;
(2) 
Address of the applicant;
(3) 
Type of explosives or other geophysical methods of mineral exploration to be used, and the purposes therefor;
(4) 
A map designating a testing area and showing the location of all points of use and the energy source to be used at each point;
(5) 
A traffic control plan for any operations or testing that will impede traffic on a public right-of way; and
(6) 
The applicant's insurance information, including the name of applicant's insurance carrier, the types and amount of insurance covering its proposed operations, the name and telephone number of an individual to contact in case of a claim for personal injury or property damage, and the procedure for obtaining a copy of applicant's certificate of insurance.
B. 
A nonrefundable permit fee of $500, or other amount as may be adopted by resolution, for processing the application and preparing the permit shall accompany each such application. On receipt of such application, the Borough Engineer or his designee shall prepare a report showing all Borough facilities or infrastructure that may be negatively affected by the proposed exploration activity located in the testing area shown in such application. Such report and the application shall then be submitted to Borough Council with the recommendations of the Borough Engineer or his designee. No permit shall be issued except upon approval of Borough Council.
C. 
All applicants must put up an additional $5,000 or any other amount as may be adopted by resolution, paid along with the permit fee, which will be set up as an escrow account to cover Borough costs incurred as a result of the permitted project.
D. 
Appeals from determinations of Borough Council shall be governed by the Pennsylvania Local Agency Law[1] and heard by the Borough Board of Appeals.
[1]
Editor's Note: See 2 Pa.C.S.A. § 105 et seq.
The term of a permit issued under this article shall be for one year beginning on the date of approval of the permit, and all energy source operations shall be completed within said term. The applicant shall provide the Borough with a minimum of five business days' notice in advance of the actual commencement of energy source operations. Once operations have commenced, in the event applicant is rendered unable, wholly or in part, by circumstances beyond the applicant's control, to complete operations within the remaining term of the permit, then the time for completion may be extended, at the sole discretion of the Borough Engineer, for a period of time not to exceed six months, upon written request by the applicant setting forth full particulars of the circumstances causing the delay which were not within the control of the applicant and which the applicant could not have avoided by the exercise of due diligence and care.
The applicant shall agree to pay professional fees incurred by the Borough pursuant to the issuance of the permit and required for applicant's compliance with the permit, including any legal and engineering fees.
A. 
All geophysical operations shall be limited to the areas approved by permit. If, during the course of operations, any utility line must be relocated to maintain compliance with the terms and conditions set forth herein or to ensure the safety of the general population, the applicant shall notify the Borough Engineer or his designee at least three business days prior to embarking on such relocation, which shall be performed in compliance with Borough standards.
B. 
The applicant shall designate a qualified representative who shall be on the job site during the entire period of testing to mitigate any potential damage to public or private property. The qualifications of the designated point of contact shall be provided to the Borough. The applicant shall also designate a point of contact who will respond within 24 hours to any request from the Borough Engineer or other representative for information regarding the applicant's testing operations, including a request for maps of the testing area that show the points of use as planned by the applicant at the time of the request.
C. 
The applicant shall obtain written permission, as required by law, from property owners before entering upon, crossing or utilizing any portion of their property.
A. 
The applicant shall notify each owner of property, in writing by United States Mail to or personal delivery at the property, located within 125 feet of its planned energy source operations, a minimum of 10 working days prior to the conducting of any test. Said notice will include the anticipated start date of energy source operations and the energy source planned to be used. The applicant will offer to provide and will provide if requested, to such owner, in writing, the insurance information required by § 138-3 to be included in its application.
B. 
The applicant shall notify each owner of property, in writing by United States Mail to or personal delivery at the property, within 300 feet of charge tests or 100 feet of vibroseis or weight drop tests, a minimum of 10 working days prior to the conducting of any test, of the availability at no cost to the property owner of pre- and post-test inspections of all structures located on or under said property, including appropriate testing and lab test for water wells. The applicant shall perform the offered inspections if requested by the property owner. The applicant shall maintain records of such inspections for a period of two years and shall make such records available upon request by the Borough.
C. 
The applicant shall place newspaper advertisements in the newspaper of record in the Borough of not less than three inches by four inches explaining the work to be performed, the location of the proposed work, and a toll-free telephone number where residents may call for more information. Said advertisements shall be placed continuously during the two-week period immediately before the permit application is scheduled to be considered by the Borough Council, and again during the two-week period immediately before actual operations commence in any testing area. The toll-free telephone number provided by the applicant shall be answered by an applicant representative during hours of operation as set forth in § 138-6 while work is ongoing in the Borough, and an answering machine shall be installed to receive after-hours calls.
A. 
The applicant shall engineer all source locations (explosive charge size and depth, and vibrator source sweep frequency and drive levels or other geophysical sources) so that no structure, subject to limitations contained in § 138-10D herein, shall be subject to any peak particle velocity greater than five-tenths of an inch per second. The applicant shall conduct all the necessary engineering tests on property located within a one-hundred-mile radius from the Borough and containing soils similar to that at the planned locations of the geophysical operations, and shall provide all reports to the Borough in an appropriate format for evaluation at the time of application.
B. 
Using industry standard equipment and techniques, the representative required by § 138-6 shall monitor and record, during operations, all pertinent locations to ensure compliance with the maximum peak particle velocity established by Subsection A. If peak particle velocity for any test exceeds said maximum, the representative shall notify the Borough Engineer and cease all operations until corrections are made. The applicant shall maintain all documentation of monitoring activities for a period of at least two years and make said documentation available upon request for inspection by the Borough.
C. 
The applicant shall obtain location maps for all water wells, underground hazardous waste storage/disposal sites, and water, sewer, oil, gas and chemical pipelines located in the testing area and conduct all energy source operations in a manner so as to not damage, interrupt, or otherwise interfere with said structures. Information obtained by the applicant shall be used by the surveying teams and operations manager to ensure compliance with the terms and conditions of this permit and that safe operating distances are maintained. If requested by the applicant, the Borough shall make available for inspection and copying maps, if any, prepared by or on behalf of the Borough that indicate subsurface structures or facilities; provided, however, that the applicant's reliance on any information furnished by the Borough, its agents, representatives, and employees, whether written or verbal, shall be at the sole risk of the applicant and the following disclaimer shall be placed on and shall apply to any and all such information:
APPLICANT ACKNOWLEDGES THAT THE BOROUGH HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF INFORMATION REGARDING SUBSURFACE STRUCTURES AND FACILITIES FURNISHED TO APPLICANT AND MAKES NO REPRESENTATION OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. APPLICANT EXPRESSLY ACKNOWLEDGES THAT THE BOROUGH MAKES NO WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS FOR A PARTICULAR USE OR PURPOSE OF SUCH SUBSURFACE INFORMATION.
D. 
All Borough-owned structures, including but not limited to susceptible underground utilities (water mains, sewer mains, etc.), shall have pre- and post-testing inspections paid for by the applicant if subjected to a peak particle velocity greater than thirty-five-hundredths-inch per second. The Borough shall have the option of receiving reimbursement of its actual cost of performing said inspections or having the inspections done by a third-party firm hired by the applicant. Any reimbursement provided by this section shall be paid to the Borough within 30 days following the applicant's receipt of an invoice from the Borough.
Energy source testing may be conducted from 9:00 a.m. until 3:00 p.m. local time, on Mondays through Fridays. Testing shall not be permitted on holidays.
A. 
The applicant shall restore, at its own cost, Borough-owned lands or rights-of-way used in its operations to the original condition just prior to the testing operations, free of damage, including ruts or any injury to landscaping.
B. 
The applicant shall ensure that its operations will not interfere with the free and safe flow of traffic. When operations are immediately adjacent to the pavement, all equipment shall be parked and/or operated in one lane of traffic.
C. 
The applicant shall notify the Borough Engineer of any equipment to be operated on Borough streets that will exceed the maximum designated weight limit or 10 tons, whichever is greater, and obtain any special permitting required and provide bonding as recommended by the Engineer.
D. 
Cables placed on the pavement within rights-of-way must be arranged so they do not create a hazardous condition or rumble strip effect. All cables must be securely anchored to the roadway with materials that will not damage and/or puncture the pavement. Nails, spikes, and similar materials used for anchors shall not be placed inside the pavement edge.
E. 
Operations under the permit shall be barred when the Borough Engineer determines that the ground conditions are such that operations would cause ruts deeper than five inches in the rights-of-way or easements. In addition, when ground conditions would cause the tracking of mud, gravel, rock, or debris onto the roadway surface of any right-of-way or other Borough improvements in a way that creates a safety hazard or potential for damage to vehicles, operations shall include measures to prevent such hazardous tracking. In the event that hazardous tracking occurs, the applicant shall immediately clean the roadway of all mud, gravel, rock or debris and cease operations until such time as appropriate preventative measures are implemented to ensure that said hazardous tracking does not occur.
F. 
Each testing crew performing work that impedes the flow of traffic, such as testing on Borough streets or rights-of-way, shall be accompanied by a certified peace officer provided by the applicant. The applicant shall furnish at its cost adequate signs, barricades, flares, flagmen, etc., as necessary, to protect the traveling public.
A. 
The applicant shall furnish to the Borough's Engineer a schedule of each week's test plans. If thumper trucks are utilized on Borough roads, which will require permission of the Borough, Borough Engineer shall inspect the road before and after testing. As is required by § 138-5 of this article, applicant shall pay any and all costs incurred by the Borough as a result of these inspections.
B. 
All vibroseis or weight drop operations shall be conducted a minimum distance of 100 feet from any building, which shall mean a structure built for the support, shelter, or enclosure of persons, chattel, or movable property of any kind and which is affixed to the land. No charge test shall be detonated within 300 feet of any building, water well, or underground hazardous waste storage/disposal site. The applicant will provide multiple monitoring of any charge testing within 300 feet of any occupied building.
C. 
The applicant shall maintain and make available upon request to the Borough, for a period of two years, the daily log of energy source tests showing date, location, energy source used, drive level, operator, and all other related information including seismic and pre- and post-test surveys.
D. 
No energy source operation shall subject any building intended for human habitation, utility line, water well, or underground hazardous waste storage/disposal site to a peak particle velocity greater than five-tenths of an inch per second.
E. 
Explosives shall be transported in constantly attended Type 3 magazines as defined by Section 1902.4.7 of the 1994 Standard Fire Prevention Code. All vehicles transporting explosives will be placarded according to Regulation of Hazardous Materials 49 CFR. Only the necessary amount of explosives for each day's operations, during such period as the permit is in effect, shall be transported within the Borough at any given time. No explosives shall be stored within the corporate Borough limits, unless approved by the Borough's Fire Chief. If such storage is approved, explosives must be stored in a locked and secure, constantly attended Type 2 magazine, as defined by Section 1902.4.6 of the 1994 Standard Fire Prevention Code, at a single, isolated, and sparsely populated location.
F. 
The applicant shall notify the Borough's Engineer, or designee, in writing within three business days after the occurrence of any violation of these permit requirements.
A. 
The applicant shall post a letter of credit valid for a period of two years after permit approval date in favor of the Borough and in a form acceptable to the Borough prior to beginning operations to guarantee maintenance and repair of any Borough property, streets or rights-of-way or during testing which may be determined in the reasonable opinion of the Borough Engineer to be damaged as a result of any testing operations. In addition, if the Borough Engineer concludes that testing will cause substantial damage to a Borough road, then the applicant must, before operations begin, enter into an agreement with the Borough undertaking the responsibility to repair the road to the extent determined in the reasonable discretion of the Borough Engineer, which agreement may provide for bond to be posted in excess of otherwise applicable PennDOT limits when the Borough Engineer has reasonably estimated that the cost of repair will exceed the PennDOT limits.
B. 
Should the Borough Engineer reasonably determine that preventive measures, such as shoring of bridges or putting protective mats over utility lines, should be taken to prevent damage to Borough roads, bridges or utilities, then the applicant shall install such protective measures as directed by the Borough Engineer, prior to beginning operations.
C. 
Prior to conducting any operations hereunder, the applicant and/or its contractors shall furnish a certificate of insurance to the Borough showing the Borough as an "additional insured" with respect to operations conducted within the Borough and showing liability insurance coverage covering commercial, personal injury, and general liability in amounts not less than $1,000,000 per person, $3,000,000 per occurrence, and $1,000,000 property damage.
D. 
The applicant shall protect, indemnify, defend and hold the Borough, its officers, employees, agents, and representatives harmless from and against all claims, demands, and causes of action of every kind and character for injury to, or death of, any person or persons, damages, liabilities, losses, and/or expenses, occurring or in any way incident to, arising out of, or in connection with its or its contractors', agents', or representatives' operations under this permit, including attorneys' fees, and any other costs and expenses incurred by the Borough in defending against any such claims, demands, and causes of action. Within 30 days of receipt of same, the applicant shall notify the Borough, in writing, of each claim for injuries to, or death of, persons or damages or losses to property occurring or in any way incident to, arising out of, or in connection with its or its contractors', agents', or representatives' operations conducted under this permit. At the Borough's discretion, the Borough may conduct an independent investigation, monitor, and review the processing of any such claim to ensure that such claim is handled as required herein.
E. 
Any permit granted hereunder may be revoked upon breach of any term or condition contained herein.
F. 
Notwithstanding anything contained herein to the contrary, any permit granted hereunder shall not be effective unless and until a copy of the permit, signed by an authorized officer of the applicant, the performance bond, and the certificates of insurance have been filed with the Borough Manager.
A person who knowingly violates any provision of this article shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined in an amount not to exceed $1,000. Each day of continuing violation shall constitute a separate offense. Each violation of this article shall constitute a separate violation subject to penalties.
This article is interpreted to be applied so that it meets all federal and state constitutional and statutory requirements. The provisions of this article are severable. If any provision or part thereof is held to be illegal or invalid, the remaining provisions shall remain in full force and effect. If any provision hereof is held to be preempted by the Oil and Gas Act[1] or other applicable law, then such provision and all remaining provisions shall be applicable to the extent it is consistent with and not preempted by the Oil and Gas Act.
[1]
Editor's Note: See 58 Pa.C.S.A. § 3201 et seq.
This article shall take effect immediately upon passage. It shall apply to any pending requests or applications for energy source operations.
The enactment and existence of this article shall not be construed as creating any right or entitlement whatsoever in any individual, group or business entity to perform energy source operations on Borough property or any other property, private or public. Furthermore, this article shall not be construed as conferring the legal right to perform energy source operations as described herein on private property, and the issuance of a permit pursuant to this article does not concomitantly confer any right to perform energy source operations on such property. This article neither expands nor limits the requirements for energy source operations on private property, but rather leaves applicable law regarding the same intact. This article shall not be construed as rendering on behalf of the Borough any statement, assertion, warranty or guarantee concerning the scope, methods, and/or safety of energy source operations by any individual, group, or entity permitted by the Borough Council under this article. Accordingly, the Borough shall not, as a result of any decision to grant or deny any permit under this article, be held liable for any harm directly or indirectly related to energy source operations performed in the Borough.