[Added 9-8-2022 by Ord. No. 679
A.
All words used in this article shall carry their customary dictionary
definitions as provided in the most recent edition of Webster's
Collegiate Dictionary, except where specifically defined herein. Words
used in the present tense shall include the future. The singular number
shall include the plural, and the plural the singular. The word "shall"
is always mandatory and not permissive; the word "may" is permissive.
The words "used" or "occupied," as applied to any land or structures,
shall be construed to include the words "intended, arranged or designed
to be used or occupied." The word "person" shall include the individual,
corporation, partnership, incorporated association or any other entity.
Words in the masculine gender shall include the feminine gender. The
words "includes" and "including" shall not limit the defined term
to the specific examples, but are intended to extend the terms meaning
to other instances of like kind and character.
B.
The following words and phrases shall have the particular meaning
specified in the purpose of interpreting this article:
A.
Permit required. It shall be unlawful for any person to conduct any
exploration activities within the Borough 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 therefore from the Borough.
B.
Permit application; fee procedure. Application for a permit hereunder
shall be made with the Leetsdale Borough. 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; 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; and 7) proof
of the right or license to handle explosives in the Commonwealth of
Pennsylvania. A nonrefundable permit fee of $1,000 for processing
the application and preparing the permit shall accompany each such
application. Such fee may be adjusted by resolution of Council from
time to time. On receipt of such application, the Planning Commission
or its 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 the Borough
Council with the recommendations of the Planning Commission or its
designee. The Borough Council will consider the applicant's request
at its monthly meeting. If not, the Council will consider the applicant's
request at the Council's following monthly meeting. No permit
shall be issued except upon approval of the Borough Council.
C.
Term of permit. The term of a permit issued under this article shall
be for one year beginning on the date of approval of the permit by
the Borough Council, and all energy source operations shall be completed
within said term. The applicant shall notify the Borough or its designee
a minimum of three business days 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 Public Works Chairman or
his designee, 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.
D.
Operations in general.
(1)
All geophysical operations shall be limited to the areas determined
by the Borough Council and depicted on the map kept by the Borough.
A copy of such map shall be attached to any permit issued by the Borough.
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 Public Works Chairman or his/her designee at least three
business days prior to embarking on such relocation, which shall be
performed in compliance with Borough standards.
(2)
The applicant shall employ an engineer specializing in seismology
to be approved by the Borough, who shall be on the job site during
the entire period of testing to mitigate any potential damage to public
or private property. The applicant shall also designate a point of
contact who will respond within 24 hours to any request from the Public
Works Chairman or his/her designee 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.
(3)
The applicant shall obtain written permission, as required by law,
from property owners before entering upon or crossing their property.
(4)
The applicant shall be responsible for and shall settle all reasonable
and legitimate claims, demands, and causes of actions relating to
property or persons arising out of or as a result of the applicant's
operations under this permit and shall handle all such claims in an
expedient manner.
E.
Notice required.
(1)
The applicant shall notify each owner of property, in writing by U.S. Mail to or personal delivery at the property, located within 250 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 Subsection B to be included in its application.
(2)
The applicant shall notify each owner of property, in writing by
U.S. Mail to or personal delivery at the property, within 400 feet
of charge tests or 125 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.
(3)
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 the testing area. The toll-free telephone number provided by the applicant shall be answered during hours of operation as set forth in Subsection D while work is ongoing in the Borough, and an answering machine shall be installed to receive after-hour calls.
F.
Energy level restrictions.
(1)
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 Subsection H(4) herein, shall be subject to any peak particle velocity greater than 6/10 inch per second. The applicant shall conduct all the necessary engineering tests on property located within a 100-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 by a professional engineer or geologist registered in the Commonwealth of Pennsylvania.
(2)
Using industry standard equipment and techniques, the engineer required by Subsection D shall monitor and record, during operations, all pertinent locations to ensure compliance with the maximum peak particle velocity established by Subsection F(1). If peak particle velocity for any test exceeds said maximum, the engineer shall notify the Public Works Chairman 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.
(3)
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.
(4)
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.
(5)
Hours of operation. Energy source testing may be conducted from 8:00
a.m. until the earlier of sunset or 7:00 p.m. local time, on Mondays
through Fridays, and from 9:00 a.m. until the earlier of sunset or
7:00 p.m. local time, on Saturday. Testing shall not be permitted
on Sunday.
G.
Lands, streets, rights-of-way, and easements.
(1)
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.
(2)
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.
(3)
The applicant shall notify the Public Works Chairman of any equipment
to be operated on Borough streets that will exceed the maximum load
limit of 52,000 pounds and obtain any special permitting required.
(4)
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.
(5)
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.
H.
Testing.
(1)
The applicant shall furnish to the Borough's Public Works Chairman
a schedule of each week's test plans. If thumper trucks are utilized
on Borough roads, which will require permission of the Borough, the
Borough Engineer shall inspect the road before and after testing.
Applicant shall pay any and all costs incurred by the Borough as a
result of these inspections.
(2)
All vibroseis or weight drop operations shall be conducted a minimum
distance of 150 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 600 feet of any occupied building.
(3)
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
survey.
(4)
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
5/10 inch per second.
(5)
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 days 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.
(6)
The applicant shall notify the Borough's Secretary/Manager,
or designee, within 24 hours after the occurrence of any violation
of these permit requirements.
I.
Bond, insurance, and indemnity.
(1)
The applicant shall submit to the Borough a performance bond in the
amount of $250,000 from a surety authorized to do business in the
state. The performance bond shall be valid for a period of two years
from the date that the permit is issued. The bond shall provide, but
not be limited to, the following condition: there shall be recoverable
by the Borough, jointly and severally from the principal and surety
any and all damages, loss or costs suffered by the Borough in connection
with the applicant's geophysical operations within the Borough.
The bond shall contain the following endorsement: "It is hereby understood
and agreed that this bond may not be canceled by the surety company
until 60 days after receipt by the Borough, by registered mail or
written notice, of such intent to cancel or not to renew." The rights
reserved to the Borough with respect to the bond are in addition to
all other rights of the Borough and no action, proceeding or exercise
of a right with respect to such bond shall affect any other rights
of the Borough.
(2)
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.
(3)
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 or, 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.
(4)
Any permit granted hereunder may be revoked upon breach of any term
or condition contained herein.
(5)
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 Secretary.
A.
Any owner, operator, or other person who violates or permits a violation
of this article, upon being found liable therefor in a civil enforcement
proceeding before a Magisterial District Judge, shall pay to the Borough
a fine of no more than $1,000 per violation, plus all court costs,
including, but not limited to, reasonable attorney's fees incurred
by the Borough on account of such violation. Each day a violation
exists after final judgment shall constitute a separate offense. The
amount of the fine imposed shall be multiplied by the number of such
days and may be charged and collected as a judgment by the Borough
without further judicial proceedings. No penalty or cost shall be
imposed until the date the determination of the violation by the Magisterial
District Judge becomes final. If the defendant neither pays nor timely
appeals the judgment, the Borough may enforce the judgment as provided
by law. Further, the appropriate officers or agents of the Borough
are hereby authorized to issue a cease-and-desist notice and/or to
seek equitable relief, including injunction, to enforce compliance
herewith. No bond shall be required of the Borough if the Borough
seeks injunctive relief.
B.
Any permit granted hereunder may be revoked upon breach of any term
or condition contained herein under this article and its sections
and subsections.
C.
The Borough may institute injunctive, mandamus, or any other appropriate
action or proceeding at law or equity for the enforcement of this
article or to correct violations of this article, any court of competent
jurisdiction shall have the right to use restraining orders, temporary
or permanent injunctions or mandamus or other appropriate forms of
remedy or relief.
D.
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 Secretary/Manager.
If any section, subsection, sentence, clause or phrase or portion
of this article is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such shall be deemed a separate,
distinct, and independent provision and such holding shall not affect
the validity of the remaining portion thereof.
