[HISTORY: Adopted by the Town Board of the Town of Clarence 10-12-1994
by L.L. No. 1-1994. Amendments noted where applicable.]
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:
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.
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:
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.
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.
Increase the quantity of hazardous waste stored, treated or disposed
of by the facility under the existing permit.
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.
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.
Any person who is responsible for the overall operation of an industrial
hazardous waste treatment, storage and disposal facility.
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.
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.
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.
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.
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:
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.
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.
(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.
