[HISTORY: Adopted by the Town Board of the Town of Esopus 2-10-1988
by L.L. No. 1-1988. Amendments noted where applicable.]
This chapter shall be known as a "Local Law Regulating Blasting and
the Use of Explosives in Blasting Operations."
" It is an elementary principle in reference to private rights that
every individual is entitled to the undisturbed possession and lawful enjoyment
of his own property."[1]
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"Since blasting involves a substantial risk of harm, no matter the degree
of care exercised, we perceive no reason for ever permitting a person who
engages in such an activity to impose this risk upon nearby persons or property
without assuming responsibility therefor."_
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Over 140 years ago, the New York Court of Appeals addressed the potential
conflict which exists between the right of a person to undertake activities
on his lands which disturb the right of quiet possession of land by an adjoining
land owner. The Court concluded:
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"If these rights conflict, the former must yield to the latter, as the
more important of the two, since upon the grounds of public policy, it is
better that one man should surrender a particular use of his land than that
another should be deprived of the beneficial use of his property, altogether,
which might be the consequence if the privilege of the former should be wholly
unrestricted."_
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[1]
Editor's Note: Hayes v Cohoes, 2 NY 159 (1848).
It is the intent of the Town Board of the Town of Esopus to implement
and encapsulate in statutory form the New York State Court of Appeals decision
in Spano v Perini, (25 NY2d 11) (1970).
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"One who engages in blasting must assume
the responsibility, and be liable without fault for any injury he causes to
neighboring property ..."
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As used in this chapter, the following terms shall have the meanings
ascribed to them:
Includes any activity whereby layers of earth or rock are dislodged
or torn apart by the use of any explosive, and includes the displacement of
any vegetation, ground cover, earth or rock by the explosion or detonation
of any explosive material.
The duly appointed Building Inspector of the Town of Esopus.
Includes a person, persons, firm, partnership, corporation or other
entity capable of being sued.
A.
"A blaster is absolutely liable for any damages he causes
with or without trespass..." (We are) "not concerned with the particular manner
by which the damage was caused, but by the simple fact that any explosion
in a built up area was likely to cause damage."[1]
[1]
Editor's Note: Spano v Perini, 25 NY2d 11, 15.
No person shall purchase, own, possess, transport or use explosives
in blasting operations in the town unless a license therefor shall have first
been issued as provided under the Labor Law.
The holder of a blaster's license issued pursuant to this chapter
shall perform blasting operations in accordance with the provisions, regulations
and requirements of the Labor Law and of the codes, rules and regulations
and any and all amendments thereto and, in addition, shall perform such blasting
operations in accordance with recommended good practices usually employed
in the industry.
The provisions of this chapter shall not apply to any of the following:
A.
Agencies of the United States, including its armed services.
B.
The state and its political and civil subdivisions.
C.
Any school district or portion thereof situated in the
town.
D.
Any district corporation.
E.
Any public benefit corporation.
F.
Police and fire-fighting forces.
G.
Any quarry operating and existing in the town prior to
the enactment of the Zoning Ordinance (1969).
It shall be unlawful to blast or carry on any blasting operation after
5:00 p.m. or before 8:00 a.m., nor shall any blasting be done on Sunday, except
with the written approval of the Building Inspector.
A.
No person may use explosives in the Town of Esopus without
first obtaining a permit from the Building Inspector.
B.
Permits for blasting shall only be issued to persons
holding blaster's licenses or to contractors who have in their employ
persons holding such licenses.
C.
The permit shall state the location for which it is approved,
the date issued, the name of the person authorized to do the blasting and
such other information as the Building Inspector may deem necessary.
D.
The permit shall be good only for the one location designated
therein, shall not be transferable and shall expire not later than one year
from the date thereof.
E.
The applicant shall also satisfy the Building Inspector
that any magazine to be used for the storage of explosives on the work for
which the blasting permit is desired has been duly licensed by the Industrial
Commissioner of the State of New York, as provided in Article 16, § 458,
of the Labor Law.
F.
The permit shall not be issued until the applicant shall
submit to the Town of Esopus a public liability insurance policy providing
coverage in the amount of $1,000,000 for each person injured, $3,000,000 for
each accident and $1,500,000 for property damage, together with a certificate
of insurance, executed by the carrier, that said policy will not be canceled
except on 10 days' notice, in writing, to the Town of Esopus.
G.
Should the Building Inspector determine that the extent
of the blasting operations in any particular case and the danger involved
require public liability insurance coverage in greater amounts than above
specified, he shall immediately certify his determination to the Town Clerk
and simultaneously request that the Town Board fix the policy limits. The
Town Board shall meet as expeditiously as possible for said purpose, and said
Town Board is hereby authorized and empowered to fix the policy limits in
such amount or amounts as the Town Board shall deem commensurate with the
scope of the blasting operations and the dangers involved. Such liability
insurance policy shall be issued by an insurance company authorized to do
business in New York State and approved as to form and sufficiency by the
Town Attorney, and, after such approval, said policy shall be filed with the
Town Clerk.
H.
The liability hereby imposed upon the applicant shall
be one of absolute liability for any such loss, expense, cost or damages of
any kind or nature to persons or property resulting from blasting, with or
without trespass, and shall not depend upon any question of negligence upon
his part or upon the part of his agents, servants or employees. The neglect
of anyone to direct the applicant, his agents, servants or employees to take
any particular precaution or to refrain from doing any particular thing shall
not excuse the applicant from the liability hereby imposed upon him.
I.
An application for such permit shall be accompanied by
an inspection fee of $100 for each day the blasting shall take place.
[Amended 4-21-2005]
The blaster shall each day deliver to the Town Clerk before 10:00 a.m.
the records of the blasting done on the previous day. This record shall contain,
at a minimum, the following information for each blast:
A.
The name and address of the person, firm or corporation
responsible for the detonation of the blast.
B.
The date.
C.
The time.
D.
The spacing.
E.
The burden (feet).
F.
The depth (feet).
G.
The subdrilling (feet).
H.
The stemming (feet).
I.
The number of holes (diameter in inches).
J.
The maximum explosive per delay.
K.
The type of day.
L.
The wind direction.
M.
The make of explosive (pounds).
N.
The total explosive used for each blast.
O.
The delay system.
P.
The delay manufacturer.
Q.
The delay cap numbers.
R.
The minimum interval.
S.
The name of the blaster.
It shall be unlawful for any person, firm or corporation to engage in
the use of explosives or combustibles for blasting purposes without following,
within the Town of Esopus, the following precautions and procedures:
A.
Blasts shall be made with small charges consisting of
an explosive agent no greater than 12 sticks of forty-percent dynamite or
the equivalent thereof.
B.
Barricades shall be erected around blasting areas at
all times.
C.
Watchmen shall be posted in sufficient numbers to warn
all persons of danger while blasting is in progress. Said watchmen shall not
be less than two in number and shall carry red flags.
D.
Blasts shall be covered with wire mesh mats or railroad
ties to effectively prevent the spraying of stones, earth or other debris
on the surrounding areas.
E.
All persons living within a radius of 500 feet of a point
at which a blast is to be made shall be personally warned to take necessary
precautions by opening windows and doors.
F.
Blasting shall be done only by duly licensed persons.
G.
Before any explosive is detonated, the person holding
the blaster's permit shall sound a horn loud enough to be heard 1/4 of
a mile away three times and wait five minutes before actually detonating the
explosive.
H.
No blasting shall be done except between the hours of
8:00 a.m. and 5:00 p.m.
A.
In the event that blasting is carried on contrary to
the conditions contained in this chapter, the Building Inspector must issue
a stop-work order.
B.
No blasting shall be conducted in the Town of Esopus
which shall cause any vibrations in any neighboring properties. The sudden
appearance of cracks in floors, walls or ceilings or the lengthening of the
same or the cracking of windows or the implosion or explosion of windows shall
be prima facie evidence of the use of excessive amounts of explosives, and
the Building Inspector must issue a stop-work order upon observation of the
same. No appeal to the Zoning Board of Appeals shall act as a lifting of a
stop-work order, notwithstanding any provision of law.
C.
The Building Inspector shall have the authority to lift the stop-work order upon proof that the next successive explosion (blast) shall not only be within the limits set forth in § 54-13A above, but shall also contain fewer explosives than the prior explosion so that the explosions do not vibrate neighboring houses.
D.
It shall be no excuse that the use of lesser amounts
of explosives would increase the cost of removing the rock and earth.
E.
Failure to comply with the stop-work order shall be deemed
a misdemeanor and punishable by a fine of not more than $2,500 for each day
such violation of the law shall be permitted to exist or by imprisonment for
a term of not more than six months, or both.
Before firing any blast, except where the same is in a tunnel, the material
to be blasted shall be covered on the top and sides with timber, held securely
together by strong chains or cables of iron or steel and covered with sheets
of metal or heavy woven matting of rope or wire.
One hour before the detonation of any blast (explosion), the contractor
and/or blaster shall give notice to the Town Clerk by telephone or in person
of the exact time that the explosion will take place.
The blasting of rock contiguous to any structure shall be so conducted
as not to cause damage thereto. To this end, weak walls or other supports
shall be shored up, and rotten or decomposed rock shall be removed only by
use of gads, picks or crowbars. When blasting in the vicinity of a weak structure
is unavoidable, only light face blasts with short lines of resistance and
charges shall be used.
Immediately after firing a blast, the blaster shall cause all debris
to be removed and shall thoroughly examine the rock and the drill holes to
ascertain whether there remains any unexploded charge, and until this is done,
no further drilling or blasting shall take place. In case a blast shall fail
to carry away the entire drill hole and leaves the lower part intact, no further
drilling shall be done in that hole.
In the event that any provision of this chapter shall be found by a
court of competent jurisdiction to be invalid or unconstitutional, that finding
shall not invalidate the other provisions of this chapter.
In the event that persons or property are damaged by the blasting and
payment therefor shall not have been made within three months from the time
of notice to the contractor or blaster, the contractor and the blaster shall
be jointly and severally responsible for the payment of reasonable attorney's
fees, costs and disbursements of the plaintiff, whether or not the case goes
to trial; attorneys' fees shall not, however, be payable by the contractor
or blaster in the event that a final judgment is entered against the plaintiff
or in the event that said contractor or blaster can prove that they or their
insurance carrier offered to settle such claim for a consideration at least
equal to that payable pursuant to the final settlement or judgment, within
said three-month period, and that said offer was rejected by the claimant.
The violation of any of the provisions of this chapter, except § 54-14, for which a separate penalty is imposed, or failure to comply therewith shall be a misdemeanor and punishable by a fine which shall not exceed $1,000. Each day such violation shall be permitted to exist shall constitute a separate offense. The application of the above penalty shall not be held to prevent the enforced removal of the prohibited conditions or application to the Supreme Court for an injunction.
