Town of Clarence, NY
Erie County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Clarence 10-12-1994 by L.L. No. 1-1994. Amendments noted where applicable.]
GENERAL REFERENCES
Demolition of buildings — See Ch. 69.
Dumps and dumping — See Ch. 87.
Solid waste — See Ch. 185.
This chapter shall be known as and may be cited as the "Industrial Hazardous Waste Treatment, Storage and Disposal Facilities Law of the Town of Clarence."
A. 
It is the duty and intent of the Town Board to protect the inhabitants of the Town of Clarence through an exercise of its police powers by requiring maximum consideration of safety and health factors in the operation of industrial hazardous waste treatment, storage and disposal facilities within the Town to ensure the continued well-being of the Town citizenry.
B. 
The law of the State of New York, Environmental Conservation Law § 27-1107, preempts municipalities from regulating the siting and operation of an industrial hazardous waste treatment, storage and disposal facility that has received a certificate from a State Siting Board.
C. 
Certain industrial hazardous waste treatment, storage and disposal facilities have been declared or asserted to be exempt from or are not subject to the requirement for a certificate from a State Siting Board.
D. 
In the absence of appropriate local review and regulation, such exemptions or exceptions may permit certain industrial hazardous waste treatment, storage and disposal facilities to operate, be built or be expanded within the Town without the necessary environmental and siting review.
E. 
The Town Board desires to ensure that, notwithstanding any such declared or asserted exceptions or exemptions, all industrial hazardous waste treatment, storage and disposal facilities proposed to be located or expanded in the Town of Clarence are subject to full environmental and siting review, consistent with the principles of Environmental Conservation Law §§ 27-1103 and 27-1105, to protect public and worker health and safety and the environment, in the exercise of the Town's police powers.
F. 
The Town Board intends by this chapter to:
(1) 
Reduce the risk of pollution from industrial hazardous waste treatment, storage and disposal facilities by restricting the scope and size of such activities.
(2) 
Ensure that accurate, current information about industrial hazardous waste treatment, storage and disposal facilities within the Town is available to public officials and citizens.
(3) 
Protect the residents of the Town from any undesirable effects of industrial hazardous waste treatment, storage and disposal facilities.
(4) 
Exercise the Town's police powers under the Municipal Home Rule Law and § 130 of the Town Law for the physical and mental well-being and safety of its citizens in relation to the operation of industrial hazardous waste treatment, storage and disposal facilities within the Town.
This chapter shall apply to all territory within the confines of the Town of Clarence, excepting any incorporated village.
As used in this chapter, these terms and words shall be defined as follows:
DISPOSAL
The abandonment, discharge, deposit, injection, dumping, spilling, leaking or placing of any substance so that such substance or any related constituent thereof may enter the environment. "Disposal" also means the thermal destruction of waste or industrial hazardous waste, including the treatment of waste through oxidation, and the burning of such wastes as fuel for the purpose of recovering usable energy.
EXPAND or EXPANDED
Any modification or change of the terms or conditions of a 6 NYCRR Part 373 hazardous waste treatment, storage and disposal facility permit and/or a 6 NYCRR Part 201 air permit issued by the New York State Department of Environmental Conservation to an existing industrial hazardous waste treatment, storage and disposal facility to:
A. 
Substitute a new or different treatment or disposal process or method for all or part of the process or method operating at the facility prior to the application for a change or modification to the permit.
B. 
Change, by substitution or addition, the types of waste specified in the existing permit which can be received by the facility, except that the application to add a waste stream of the type specified in the existing permit shall not be considered an application to modify or change any of the terms or conditions of the existing permit.
C. 
Increase the quantity of hazardous waste stored, treated or disposed of by the facility under the existing permit.
INDUSTRIAL HAZARDOUS WASTE
Any substance meeting the definition of that term under § 27-1101 of the New York State Environmental Conservation Law or any regulations promulgated thereunder, as such statute and regulations may be amended from time to time.
INDUSTRIAL HAZARDOUS WASTE TREATMENT, STORAGE AND DISPOSAL FACILITY
Any facility meeting the definition of that term under § 27-1101 of the New York State Environmental Conservation Law or any regulations promulgated thereunder, as such statute and regulations may be amended from time to time.
OPERATOR
Any person who is responsible for the overall operation of an industrial hazardous waste treatment, storage and disposal facility.
OWNER
Any person who owns an industrial hazardous waste treatment, storage and disposal facility. "Owner" shall include any person or entity which holds a greater than ten percent (10%) interest, either directly or indirectly, in any entity which is the "owner" of an industrial hazardous waste treatment, storage and disposal facility.
PERSON
Refers to any individual, partnership, public or private corporation, joint venture, political subdivision, industry, association, firm, trust, estate, state agency or board or commission or the state or any legal entity whosoever, to the extent that the Town may lawfully exercise jurisdiction over such entity.
STORAGE
The containment of industrial hazardous waste, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such industrial hazardous waste.
TOWN ENGINEER
The person appointed by the Town Board to serve in that position or, if that position is vacant, such other person or persons designated by the Town Board to carry out the duties and responsibilities of the Town Engineer under this chapter.
TREATMENT
Any method, technique or process, including neutralization, designed to change the physical, chemical or biological character or composition of any industrial hazardous waste so as to neutralize such waste or so as to render such waste nonhazardous, safer for transport, amenable for recovery, amenable for storage or reduced in volume.
A. 
All relevant sections of Article 27 of the New York State Environmental Conservation Law and Title 6 of the New York Codes, Rules and Regulations are deemed to be included within and as part of this chapter.
B. 
The provisions of this chapter shall be interpreted in such a manner so as to be consistent with state law, except that the more stringent requirements of this chapter shall apply.
A. 
On or after the effective date of this chapter, no person shall construct, install, assemble or expand an industrial hazardous waste treatment, storage and disposal facility within the Town of Clarence unless such facility has either:
(1) 
Received a certificate of environmental safety and public necessity from a Facility Siting Board, as provided by the New York State Environmental Conservation Law; or
(2) 
Received a special permit from the Town Board.
B. 
The term or period of any special permit shall be determined by the Town Board, except that the maximum term of any such permit shall be three years. In the event that no expansion of an existing industrial hazardous waste treatment, storage and disposal facility is requested at the end of the term or period of any special permit held by the owner or operator of such facility, the special permit held by such owner or operator may be renewed automatically and at no charge upon application to the Town Board.
A. 
The owner or operator of any proposed new or expanded industrial hazardous waste treatment, storage and disposal facility, as set forth above in § 123-6A, herein also referred to as the "applicant," shall submit a complete application as specified in § 123-9 for a special permit to the Town Board.
B. 
The Town Board shall review any application for a special Town permit for completeness. In the event that the Town Board shall, upon review of an application hereunder, find such application to be incomplete, it shall return such application to the applicant for completion.
C. 
After the Town Board has found an application hereunder to be complete, it shall direct the Town Clerk to issue a public notice in a newspaper of general circulation in the Town stating that a complete application for a special permit has been received and scheduling a public hearing on the application.
D. 
The notice of complete application and public hearing must be published at least fourteen (14) calendar days in advance of the public hearing.
E. 
In its deliberations on any application submitted hereunder, including its review of the special permit application for completeness, the Town Board may obtain technical assistance from the Town Engineer, such other Town employees as have relevant expertise and any consultants which the Town Board, in its sole discretion, may consider necessary to hire for such technical assistance.
F. 
The Town Board may disapprove or approve, with or without conditions, any application submitted hereunder.
G. 
For good cause shown, the Town Board may grant variances from the requirements specified in § 123-9 for the contents of a complete application.
H. 
The Town Board shall only grant a special permit to the applicant or a variance from the requirements for the contents of a complete application upon the affirmative vote of a majority plus one (1) of the Town Board members to approve the application or to grant the variance. The Town Board shall base its decision to grant or deny a special permit to an applicant on the environmental impact of the proposed new or proposed expanded facility and its adverse effects, if any, on the environmental quality, health, safety, general welfare and quality of life within the Town.
I. 
In granting any special permit hereunder, the Town Board shall, at a minimum, as a condition of any such permit, require quarterly reporting of the following information:
(1) 
The volume of industrial hazardous waste received by the facility by type of waste.
(2) 
The volume of industrial hazardous waste treated at the facility by type and by treatment method.
(3) 
The volume of industrial hazardous waste disposed of at the facility by type and by disposal method.
(4) 
The volume of industrial hazardous waste, by type, leaving the facility for off-site treatment, storage or disposal.
(5) 
The volume of industrial hazardous waste stored at the facility, by type, on the last day of the reporting quarter.
J. 
The Town Board, in granting the special permit, may impose such additional terms and conditions, including additional reporting requirements, as it deems reasonable.
The Town Board may grant a special permit for the operation, siting or expansion of an industrial hazardous waste treatment, storage and disposal facility only if it finds that:
A. 
Construction and/or expansion of such facility will not adversely affect either the environmental quality and/or the health, safety, general welfare or quality of life of the Town's citizens.
B. 
Residential areas and contiguous populations will not be endangered.
C. 
Construction and operation of such facility would not be contrary to local zoning or land use regulations in force on the date of the application.
A. 
All applications for a special permit for a proposed new or proposed expanded facility shall include an application to the Town Board on a form prescribed by the Town Board by resolution.
B. 
The Town Clerk shall make available those application forms.
C. 
Any person applying to the Town Board for a special permit for a proposed new or expanded industrial hazardous waste treatment, storage and disposal facility must file with the Town ten (10) copies of an application containing all of the following:
(1) 
A full description and analysis of the need for the proposed new or proposed expanded facility.
(2) 
A full description of the location of the proposed new or proposed expanded facility, including all property boundaries.
(3) 
A draft environmental impact statement, unless such a statement is not required under the State Environmental Quality Review Act[1] or the National Environmental Policy Act.
[1]
Editor's Note: See Article 8 of the Environmental Conservation Law.
(4) 
A copy of the applications for such permits or requests for permit modifications as may be required by the New York State Department of Environmental Conservation or the United States Environmental Protection Agency.
(5) 
A full description of the proposed methods of operation of the proposed new or proposed expanded industrial hazardous waste treatment, storage and disposal facility, including, without limitation, the types and quantities of waste to be processed, the technologies involved, the protocols to be followed to assure safe operation and complete treatment of all wastes and the training and certification of all employees.
(6) 
A full description of the design and capacity of the proposed new or proposed expanded facility.
(7) 
A full description of the operational record of other industrial hazardous waste treatment, storage and disposal facilities utilizing substantially similar technology, whether operated by the applicant or any other operator.
(8) 
A full description of the operational record of all other industrial hazardous waste treatment, storage and disposal facilities operated by the applicant, regardless of the type of technology used for the treatment, storage and disposal of industrial hazardous waste at each such facility.
(9) 
Identification of each source of industrial hazardous waste that will be destroyed or treated at the proposed new or proposed expanded facility.
(10) 
A full description of the proposed methods of transporting such wastes to and from the facility and the routes which deliveries will traverse, including, without limitation:
(a) 
The accident rates of the different possible transport routes.
(b) 
The length of the transport route, structures within five-tenths (0.5) mile of the transportation route, including the number of residences, schools and hospitals.
(c) 
Transportation restrictions, including traffic intersections, traffic/railroad intersections, tunnels, bridges and toll booths.
(d) 
A description of the nature and the average daily volume of waste being transported.
(11) 
A full description of the proximity of the proposed new or proposed expanded facility site boundary to incompatible structures, including, without limitation, the proximity to airports, residences, schools, hospitals, churches, commercial centers and nursing homes.
(12) 
A full description of the proximity of the proposed new or proposed expanded industrial hazardous waste treatment, storage and disposal facility site boundary to existing and proposed utility lines.
(13) 
A full description and analysis of the potential for fires and explosions at the site.
(14) 
A full description and analysis of proposed safety measures and emergency response techniques for fires and explosions at the proposed new or proposed expanded facility, including, without limitation, the level and ability of the local fire departments and emergency medical teams and the proximity of the site area to the fire department and fire-fighting water supply.
(15) 
A full analysis, prepared by qualified experts in the relevant fields of knowledge, of the impacts of the proposed new or proposed expanded facility on the health and welfare of the residents of the Town.
(16) 
A full analysis, prepared by qualified experts in the relevant fields of knowledge, of the impacts of the proposed new or proposed expanded facility on endangered, threatened and indigenous species or critical habitat for wildlife generally and the extent to which mitigation measures can be effectively implemented.
(17) 
A full analysis, prepared by qualified experts in the relevant fields of knowledge, of whether the proposed new or proposed expanded facility is necessary and compatible with the surrounding environment and with the health, safety and welfare of neighboring populations.
(18) 
A full analysis, prepared by qualified experts in the relevant fields of knowledge, of the cumulative impacts upon air quality and public health in the Town of the proposed new or proposed expanded facility and other existing and proposed air contaminant sources, whether or not located within the Town.
(19) 
A full description and analysis, prepared by qualified experts in the relevant fields of knowledge, of the potential air quality problems which may occur at the proposed new or proposed expanded facility as the result of historical or estimated meteorological conditions, including, without limitation, the atmospheric stability, prevailing wind direction and wind speed and the extent to which such respective problems and conditions will affect neighboring communities.
(20) 
A full analysis, prepared by qualified experts in the relevant fields of knowledge, of the potential for groundwater and surface water contamination as a result of the construction, expansion and operation of the proposed new or proposed expanded facility, including, without limitation: the deposition of air emissions from the facility onto the ground or surface waters; the potential for hydraulic contact with floodplain, wetlands, recharge zones, surface waters and aquifers; the effect of any surface water runoff; and the hydrogeological characteristics affecting groundwater contamination.
(21) 
A full analysis, prepared by qualified experts in the relevant fields of knowledge, of the proposed new or proposed expanded facility's impact on sources of water supply for human and animal consumption, including, without limitation: the effect the facility will have on surface water or aquifers located on and in the vicinity of the site which are used for domestic, agricultural or industrial purposes; and the current use and potential uses for such bodies of water and the extent to which the facility will create conditions inconsistent with those uses.
(22) 
A full description of areas surrounding the proposed new or proposed expanded facility where mineral resources, in either solid or liquid form, have been removed by various procedures in the past.
(23) 
Identification of each facility that will dispose of residue, if any, from the proposed new or proposed expanded facility; a written statement from the owner or operator of each such facility that it has agreed to and is authorized to accept such residue; and a written statement from the state or other appropriate environmental regulatory agency with jurisdiction over such a facility, certifying that such facility is authorized to accept such residue.
(24) 
A full description of the extent to which the proposed new or proposed expanded facility will diminish available open space and recreation resources used by the Town and surrounding communities.
(25) 
A full description of the visual aesthetic impact of the proposed new or proposed expanded facility and its proximity to areas that are traveled by the general public.
(26) 
A full description and recording of the background sound level in the vicinity of the proposed new or proposed expanded facility at the time of the application.
(27) 
A full description and analysis of the extent to which the construction, operation or expansion of the proposed new or proposed expanded facility may affect the preservation of historic and cultural resources, including, without limitation, the proximity of the site to historical or cultural resources, the facility's impact on the public's access to nearby historic and cultural resources and any negative impact on the visitation to these resources.
(28) 
A statement of how long the proposed new or proposed expanded facility will remain in operation, which statement shall be incorporated into any special permit issued hereunder as a condition thereof, except that the Town may issue the special permit for a shorter term, and the issuance of such a special permit does not create any right or interest beyond the specified term of the permit.
(29) 
A proposed detailed program for closure of the proposed new or proposed expanded facility, to be implemented when use of the facility or part of the facility permanently terminates.
(30) 
A proposed detailed program to restore the site of the facility to its original state prior to construction of the facility, which plan would be implemented subsequent to closure of the facility.
(31) 
A proposed detailed program for the monitoring of all activities of the proposed new or proposed expanded facility by personnel of the Town of Clarence or persons authorized by the Town of Clarence, whereby such personnel or persons shall be allowed access to the facility at any time deemed necessary by the Town Board.
(32) 
A full analysis, prepared by qualified experts in the relevant fields of knowledge, of alternatives to the proposed new or proposed expanded facility, including, without limitation, the treatment, disposal, destruction, containment or isolation of the hazardous wastes without use of the facility.
(33) 
A full description of reasonable alternative locations outside of the Town for the treatment, disposal, destruction, containment or isolation of the hazardous wastes, by any and all appropriate means, including but not limited to industrial hazardous waste treatment, storage and disposal facilities operated by commercial entities, whether or not affiliated with the applicant.
(34) 
A detailed full contingency plan.
D. 
Applications shall be sworn to by or on behalf of the applicant in respect to all statements of fact therein or shall bear an executed statement on behalf of the applicant, pursuant to New York State Penal Law § 210.45, to the effect that statements made therein are made under penalty of perjury.
A. 
Each permit application shall be accompanied by an application fee of twenty thousand dollars ($20,000.) to defray the cost of review thereof. Additional fees may be assessed if the actual costs to the Town of reviewing any application exceeds twenty thousand dollars ($20,000.). If any part of the fee is not used to defray the costs of review of a permit application, the part not so used shall be returned to the applicant at the end of the review process.
B. 
Prior to the issuance of the special permit hereunder and every year thereafter that such permit or a renewal thereof remains in effect, each permit holder shall pay to the Town an annual permit fee in the amount of forty thousand dollars ($40,000.), which fee shall be deposited to the general fund of the Town. The special permit fee shall defray the cost of review, inspection and monitoring of the facility.
C. 
All applications shall be accompanied by any other data that the Town Board reasonably requires to responsibly determine the feasibility of issuing or denying a permit.
A. 
No special Town permit shall be issued until the Town Board has received a restoration bond, in an amount set by the Town Board, issued by a bonding or surety company acceptable to the Town Board, to ensure that all restoration work is completed pursuant to the plan submitted with the application, the dictates of this chapter and any other local law or state law.
B. 
The terms and conditions of any such bond, including the amount of such bond, shall be clearly set forth in detail.
C. 
The Town Board may accept other suitable forms of financial assurance. Likewise, the Town Board may require other bonds or forms of financial assurance to protect the public.
All ordinances and local laws or parts thereof in conflict herewith are preempted by this chapter; provided, however, that the provisions of this chapter shall not be interpreted as obviating any requirements or restrictions wherever it is possible to conform to the provisions of both this chapter and any other law or ordinance.
A. 
In the event that the Town Engineer reasonably believes that a person has constructed, installed, assembled or expanded an industrial hazardous waste treatment, storage and disposal facility without first obtaining a special Town permit as required by this chapter, the Town Engineer shall issue an order to such person directing such person to cease all operations which would have required the issuance of such permit. Any order issued pursuant to this section may be enforced in a court of competent jurisdiction.
B. 
At any time the Town Engineer reasonably believes that the owner or operator of an industrial hazardous waste treatment, storage and disposal facility is in violation of any term or condition of a special Town permit, the Town Engineer shall issue such owner or operator a notice of violation. Such notice of violation shall:
(1) 
Specify the nature of the violation, including the term or condition of the special permit which the owner or operator has failed to comply with and the date(s) of any such violation.
(2) 
Direct the owner or operator to immediately cease any operations which are in violation of the special permit and to comply with all terms and conditions of the special permit.
(3) 
Assess civil penalties in an amount not to exceed twenty-five thousand dollars ($25,000.) per violation. Every day or part thereof that such violation shall continue shall be deemed to be a separate and distinct violation.
C. 
If, after consultation with the owner or operator, the Town Engineer determines that some or all of the violations specified in the notice of violation did not occur or mitigating circumstances warrant a reduction in the amount of the civil penalty requested in the notice of violation, he or she shall inform the Town Board, in writing, of the basis for his or her determination. The Town Board, by a majority vote, shall either accept or reject the recommendation of the Town Engineer.
A. 
Every violation by any person of a special Town permit shall, upon conviction therefor, be assessed a fine of not less than one thousand dollars ($1,000.) per violation and not more than twenty-five thousand dollars ($25,000.) per violation. Every day or part thereof that such violation shall continue shall be deemed to be a separate and distinct violation of this chapter.
B. 
Any person who is found by a court of competent jurisdiction to have failed to obtain a special Town permit prior to construction, installation, assembly or expansion of an industrial hazardous waste treatment, storage and disposal facility shall pay civil penalties of not less than ten thousand dollars ($10,000.) per day or more than twenty-five thousand dollars ($25,000.) per day for each day which the industrial hazardous waste treatment, storage and disposal facility operated without a special Town permit and shall be enjoined from any future operation of the facility in violation of this chapter until the facility receives a special Town permit.
A. 
The Town Board may, on reasonable notice to the permit holder, suspend, revoke or modify any special permit. The permit holder shall be afforded the opportunity for a hearing before the Town Board within sixty (60) days of notice of suspension, revocation or modification.
B. 
The Town Engineer may order the immediate suspension of operations if he finds that there is an imminent and substantial threat to public health or safety or the environment. The permit holder shall be afforded the opportunity for a hearing before the Town Board within thirty (30) days of such suspension.
C. 
After notice and opportunity for a hearing, any permit issued pursuant to this chapter may be modified, suspended or revoked, in whole or in part, during its term, for cause, including but not limited to the following:
(1) 
Violation of any part of this chapter or the terms of a permit issued pursuant to this chapter. The Town Board shall also consider any previous violations of this chapter or the terms of the permit.
(2) 
Obtaining a permit by misrepresentation or failure to fully disclose all relevant facts.
(3) 
Materially false or inaccurate statements or information in an application for a permit.
(4) 
Newly discovered material information or a material change in environmental conditions, relevant technology or applicable law or regulations since the issuance of the special permit.