[HISTORY: Adopted by the Borough Council of the Borough of Franklin Park 9-18-2019 by Ord. No. 650-2019. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Borough of Franklin Park Energy Source Operations Ordinance."
The purpose of this chapter is to provide minimum standards to safeguard persons, structures and infrastructure and to promote and protect the public health, safety and welfare by regulating and controlling geophysical and seismic testing within the Borough associated with the exploration of oil, gas, and/or other materials by the use of energy source operations. All energy source operations shall conform to the provisions of this chapter.
All energy source operations not currently under permit at the time of adoption of this chapter shall cease until a permit for such energy source operations is obtained in accordance with this chapter.
Whenever used in this chapter, the following words shall have the meanings indicated:
- A person who has applied for a permit under this chapter.
- The Borough of Franklin Park.
- BOROUGH ENGINEER
- An individual licensed and registered under the laws of the Commonwealth of Pennsylvania engaged in the practice of engineering, assigned or appointed by the Borough to perform the duties required under this chapter, and the agent(s) of such individual.
- BUILDING INSPECTOR/ZONING OFFICER
- The Borough employee who is charged with the administration and enforcement of the Building Code and the Zoning Code.
- ENERGY SOURCE OPERATIONS
- Operations that involve the transmittal of seismic waves to model the geophysical properties of the Earth's crust.
- A chemical or other substance intended to produce an explosion or that contains oxidizing or combustible units or other ingredients in proportions or quantities that, by ignition by fire, by friction, by concussion, by percussion or by detonation, may produce an explosion capable of causing injury to persons or damage to property. The term "explosive" includes, but is not limited to, black powder (all varieties), dry gun cotton, nitroglycerine, dynamite, chlorates, fulminates, all sensitized ammonium nitrate compositions and any other of their compounds or mixtures, smokeless powder, wet gun cotton and wet nitrostarch.
- Any person who is required to apply for a permit under this chapter and who has received a permit from the Borough.
- A natural person or any corporate entity, including, but not limited to, any partnership, corporation or limited liability company and its or their heirs, successors, assigns, directors, officers and employees, as applicable.
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 the use of shot holes, weight drops, explosives, vibrating machines, vibroseis equipment, thumper trucks, seismic drones, geophones, and/or any other vehicles or equipment that cause and/or detect vibrations without first obtaining a permit therefor from the Borough.
Application for an energy source operations permit hereunder shall be made with the Building Inspector/Zoning Officer and shall contain the following information:
Name of the applicant;
Address of the applicant;
Type of explosives or other geophysical methods of exploration to be used, and the purposes therefor;
A map designating the proposed testing area; the location of all points of use; the energy source to be used at each point; and the location of all points of entry onto, over and/or under private property to be made by applicant's personnel and/or equipment;
A traffic control plan for any operations or testing that will impede, disrupt and/or redirect traffic on a public right-of-way;
The applicant's insurance information, including the name of the 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 the applicant's certificate of insurance;
A copy of the applicant's certificate of insurance;
Where applicable, proof of the applicant's right or license to handle explosives in the Commonwealth of Pennsylvania;
Where applicable, proof of the applicant's license to operate a seismic drone under applicable federal law;
Documentation demonstrating that soils information for the region has been reviewed and indicating locations where special precautions are to be taken due to landslide prone areas or other sensitive soil conditions;
The names of all property owners and tax parcel numbers for all properties within the testing area;
A list of the names, contact information and qualifications of independent third parties to be utilized to conduct pre-testing and post-testing inspections at the request of property owners in accordance with § 106-7A, with such list to include at least two qualified third parties for each type of inspection contemplated, including, but not limited to, inspections of homes, buildings, surface infrastructure, subsurface infrastructure, and water wells;
The dates and duration for all proposed energy source operations; and
Other pertinent information as required herein.
A nonrefundable permit fee for processing and preparing the permit shall accompany each application. The amount of such permit fee shall be specified in the current Borough Fee Schedule Resolution as enacted or amended by Borough Council from time to time. In addition, an escrow of $5,000 shall be included with the application and shall be used to reimburse the Borough for all fees and expenses incurred by the Borough related to an application under this chapter, including, but not limited to, the reasonable and necessary charges of professional consultants, including, but not limited to, the Borough Engineer and the Borough Solicitor, for review of and report on an application and/or permit under this chapter and the inspection of any energy source operations conducted under this chapter. In the event that the Borough's costs relating to the application and/or energy source operations exceed $5,000, the applicant shall be responsible for immediately replenishing the escrow each time it is depleted with an additional $5,000.
The application shall also include a report prepared by the applicant showing all Borough and municipal authority facilities and infrastructure, as well as all utilities and infrastructure owned by others that may be negatively affected by the proposed energy source operations. The application and the report shall be submitted to the Building Inspector/Zoning Officer for subsequent review by the Borough Engineer and Borough Council. Every municipal authority and other organization or entity that owns and/or operates facilities that are noted in the report as being susceptible to negative affects by the proposed energy source operations shall be provided with a copy of the report by the applicant concurrent with applicant's submission of its application to the Borough. The applicant shall include a certification with its application certifying as to the organizations and entities to which it has sent the report. The Borough Engineer shall make a written recommendation to Borough Council with respect to the application within 60 days of receiving a complete application from the applicant. The Borough Council will consider the applicant's request at the next public meeting following the Borough Engineer's recommendation if the Borough Council has the Borough Engineer's recommendation at least 14 days before the meeting. If not, the Borough Council will consider the applicant's request at the following public meeting. No permit shall be issued except upon approval of the Borough Council.
The term of a permit issued under this chapter shall be for one year beginning on the date of approval by the Borough Council and all energy source operations shall be completed within said one-year term. The applicant shall notify the Building Inspector/Zoning Officer of its intent to commence energy source operations in writing a minimum of seven days before such operations commence.
All geophysical operations shall be limited to the areas identified in the application and approved by Borough Council. A copy of the map submitted with the application, in the form approved by Borough Council, 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 Borough Manager at least seven days prior to embarking on such relocation, which shall be performed in compliance with Borough standards, the standards of the respective utility company or municipal authority and at no cost to the Borough or respective utility company or municipal authority.
The applicant shall employ a licensed engineer or geologist specializing in vibration analysis to act as project manager for the energy source operations. Said project manager shall be on the job site during the entire period of testing to mitigate any potential harm or injury to people and 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 Borough Manager, the Building Inspector/Zoning Officer and/or such other Borough official for information regarding the applicant's testing operations, including a request for maps of the testing area that show the points of use.
Prior to any person, on behalf of the applicant, imaging the geologic profile of a property not owned or leased by applicant and/or entering upon and/or crossing any property not owned or leased by the applicant and prior to any equipment of the applicant or any agent of the applicant being placed on, in, under and/or above any property not owned or leased by the applicant, the applicant shall obtain written permission, as required by law, from all such affected property owners. Energy source operations shall not be conducted on private or public property without the express written permission of the owner(s) of said property.
The applicant shall be responsible for and shall settle all reasonable and legitimate claims, demands, and causes of action relating to property or persons arising out of or as a result of the applicant's operations under the permit and shall handle all such claims in a fair, reasonable and expedient manner.
The applicant must perform a PA One Call for any drilling, digging or excavating activities within the Borough. All applicable commonwealth and federal permits and/or licenses pertaining to the operations shall be supplied to the Borough upon request.
The applicant shall notify each owner of property, in writing, by United States mail or personal delivery at the property, within 400 feet of its planned energy source operations; provided, however, that where vibroseis or weight drop tests are the method being utilized for the energy source operations, the applicant shall be required to notify only those owners of properties within 125 feet of such energy source operations. Such notice shall be sent a minimum of 14 days prior to conducting any energy source operations. Said notice shall 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 in writing to any owner within the notification area if requested, the insurance information required by § 106-4 to be included in its application. Additionally, the notice shall provide property owners within the notification area with the option to have pre-test and post-test inspections of all structures located on or under said property, including testing of water wells, performed by qualified third-parties independent of applicant at the applicant's expense. If requested by a property owner, such pre-test inspections shall be performed by one of the designated independent third-parties identified in applicant's application before the applicant commences any energy source operations and post-test inspections shall be performed by one of the designated independent third-parties identified in applicant's application within 30 days following completion of the energy source operations; provided, however, in addition to the pre-testing and post-testing inspections provided for herein with respect to water wells, testing of such water wells shall also be repeated six months following completion of the energy source operations. Results of all pre-testing and post-testing inspections shall be timely provided to the applicable property owner and the applicant shall maintain records of all such inspections for a minimum of two years following completion of its energy source operations under the respective permit.
The applicant shall place newspaper advertisements in a newspaper of general circulation 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 advertisement shall appear a minimum of eight times on at least eight separate days within the 14 days before the permit application is scheduled to be considered by the Borough Council and again a minimum of eight times on at least eight separate days within the 14 days immediately preceding the commencement of actual operations in the testing area. The telephone number provided by the applicant shall be answered by a person during hours of operation as set forth in § 106-10 while work is ongoing in the Borough, and a voicemail system shall be utilized to receive after-hour calls.
Notwithstanding anything to the contrary contained in § 106-7A, all Borough and applicable municipal authority owned structures, buildings, wastewater treatment facilities, pump stations, infrastructure (including, but not limited to, roads and sidewalks) and underground utilities (including, but not limited to, water mains, sewer pipes and pipelines), shall be subject to pre-testing and post-testing inspections paid for by the applicant where such structures, buildings, wastewater treatment facilities, pump stations, infrastructure and/or underground utilities will be subjected to a peak particle velocity greater than 0.35 inch per second. The Borough and/or the relevant municipal authority shall have the option of receiving reimbursement of its/their actual cost of performing said inspections or having the inspections done by a third party firm approved by the Borough and/or relevant municipal authority and hired by the applicant. Any reimbursement provided by this section shall be paid to the Borough and/or relevant municipal authority within 30 days following the applicant's receipt of an invoice from the Borough and/or relevant municipal authority.
The applicant shall engineer all source locations (explosive charge size and depth, vibrator source sweep frequency and drive levels or other geophysical sources) so that no structure, subject to limitations contained in § 106-12D herein, shall be subject to any peak particle velocity greater than 0.6 inch per second.
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 applicant's surveying teams and project manager to ensure compliance with the terms and conditions of the permit and to ensure 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/or employees, whether written or verbal, shall be at the sole risk of the applicant and the following disclaimer shall apply to all such information whether or not such disclaimer appears thereon:
The applicant shall contract with a third-party inspector to monitor seismic testing levels for potential impact on structures and other sensitive features during the energy source operations. Using industry standard equipment and techniques, the inspector shall monitor and record, during operations, all pertinent locations to ensure compliance with the maximum peak particle velocity established in § 106-9A and § 106-12D. If peak particle velocity for any test exceeds the applicable maximum, the inspector shall notify the Building Inspector/Zoning Officer and shall cause applicant to cease all energy source operations under the permit 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 and/or any property owner that has filed a damage claim in connection with such energy source operations.
Subject to issuance of a permit by the Borough, energy source operations 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 Saturdays. Energy source operations are not permitted to be conducted on Sundays or federally observed holidays.
The applicant shall restore, at its own cost, Borough-owned lands, roadways and/or rights-of-way used in and/or impacted by its energy source operations to the original condition just prior to the testing operations, free of damage, including ruts or any injury to landscaping. An excess maintenance agreement may, at the sole discretion of the Borough, be required for any such energy source operations. The applicant shall restore, at its own cost, any municipal authority owned infrastructure, including water and sewer lines, structures, facilities and related appurtenances.
The applicant shall ensure that its operations will not interfere with the free and safe flow of traffic in the Borough. When energy source operations are being conducted on or immediately adjacent to any roadway, all equipment shall be parked and/or operated in one lane of traffic. The applicant shall comply with all applicable PennDOT requirements and standards with respect to any operations impacting roadways.
The applicant shall notify the Borough Engineer of any equipment to be operated on Borough streets that will exceed the maximum posted weight limit or 10 tons, whichever is greater, and obtain any special permitting required. Where applicable, written proof that the applicant has permission to use county and state roads to conduct its energy source operations shall be provided with the application.
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.
Each testing crew performing work on behalf of applicant that impedes the flow of traffic in the Borough shall furnish, at applicant's sole cost, adequate signs, barricades, flares, flagmen, etc. as necessary to protect the traveling public.
The applicant shall furnish to the Building Inspector/Zoning Officer a schedule of each week's energy source operations testing plans. If thumper trucks are to be utilized on Borough roads, which will require permission of the Borough, the Borough Engineer shall inspect such roads before and after such energy source operations. The applicant shall pay any and all costs incurred by the Borough in connection with these inspections.
All vibroseis or weight drop operations shall be conducted a minimum distance of 150 feet from any building, which shall mean a structure that is affixed to the land and built for the support, shelter or enclosure of persons, chattel or movable property of any kind. No charge tests shall be detonated within 300 feet of any building, underground hazardous waste storage/disposal site, existing, abandoned and/or unplugged oil and gas wells, private water sources and mines. The applicant, at its own expense, will provide qualified individuals to be on-site at and to monitor each occupied building which is within 600 feet of any charge test at the time that testing is being conducted; provided that the owner of any such building consents to such on-site monitoring.
The applicant shall maintain and make available upon request of the Borough, for a period of two years following completion of the energy source operations conducted pursuant to the permit, the daily log of energy source operations tests showing the date, location, energy source used, drive level, operator and any and all other related information, including, but not limited to information regarding pre-testing and post-testing inspections.
Notwithstanding anything to the contrary contained in this chapter, no energy source operation shall subject any building intended for human habitation or any utility line, water well or underground hazardous waste storage/disposal site to a peak particle velocity greater than 0.5 inch per second.
Explosives shall be transported in constantly attended Type 3 magazines, as defined by § 1902.4.7 of the 1994 Standard Fire Prevention Code. All vehicles transporting explosives will comply with the applicable provisions of, and be placarded according to, 49 CFR, Subchapter C, Regulation of Hazardous Materials, Parts 171 through 177, as the same may be amended from time to time. Only the necessary amount of explosives for each day's operations shall be transported within the Borough at any given time. No explosives shall be stored within the Borough, unless approved by the Building Inspector/Zoning Officer. If such storage is approved, explosives must be stored in a locked and secure, constantly attended Type 2 magazine, as defined by § 1902.4.6 of the 1994 Standard Fire Prevention Code, at a single, isolated and sparsely populated location.
The applicant shall notify the Building Inspector/Zoning Officer within 24 hours after the occurrence of any violations of the requirements of this chapter and/or any violations of the permit requirements.
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 commonwealth. The performance bond shall be valid for a period of two years from the date that energy source operations commence. 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 energy source 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 of Franklin Park, 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. If the Borough receives notice of cancellation, the applicant's energy source operations must cease immediately upon written notice to applicant. Operations may not resume unless and until the applicant restores the bond. The Borough reserves the right to require the applicant to reapply for a permit if the bond is not restored within 10 days.
Prior to conducting any energy source operations hereunder, the applicant and all of its contractors, subcontractors and agents conducting any aspect of the energy source operations in the Borough shall each furnish a certificate of insurance to the Borough showing the Borough as an additional named insured with respect to the energy source 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.
The applicant shall protect, indemnify, defend and hold the Borough, its officers, employees, agents, elected and appointed officials 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, and/or damages, liabilities, losses, and/or expenses, occurring or in any way incident to, arising out of, or in connection with the applicant's or the applicant's contractors', agents', or representatives' operations under a permit issued under this chapter, 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 the applicant's or the applicant's contractors', agents', or representatives' operations conducted under a permit issued under this chapter. At the Borough's discretion and at the applicant's expense, the Borough may conduct an independent investigation to monitor and review the processing of any such claim, demand and/or cause of action to ensure that such claim, demand and/or cause of action is and has been handled as required herein.
Any permit granted hereunder may be revoked upon failure to comply with any term or condition contained in this chapter and/or required under the permit.
Notwithstanding anything to the contrary contained herein, any permit granted hereunder shall not be effective unless and until a copy of the permit, signed by an authorized officer of the applicant, along with a performance bond (to the extent required) and the certificates of insurance have been filed with the Building Inspector/Zoning Officer.
The applicant shall submit an "application for permit to conduct energy source operations" the form of which shall be kept on file at the Borough offices.
The applicant shall register each of its representatives who shall enter upon private property in the Borough in connection with seeking permission to conduct energy source operations in the Borough in accordance with Chapter 154 of the Code of the Borough of Franklin Park.
No person shall conduct energy source operations contrary to or in violation of any provision of this chapter.
When written notice of violation of any of the provisions of this chapter has been issued by the Building Inspector/Zoning Officer to any person, such violation shall be discontinued immediately.
Any person who shall violate any provision of this chapter or fails to comply therewith or with any of the requirements thereof, upon being found liable therefor in a civil enforcement proceeding commenced by the Borough, shall pay a judgment of not more than $500 per violation per day plus costs, including reasonable attorneys' fees incurred by the Borough in the enforcement proceedings. A separate offense shall arise for each day or portion thereof in which a violation of this chapter is found to exist and for each section of this chapter found to have been violated and the amount of any daily fine or judgment imposed shall be multiplied by the number of such days that a violation exists following a final judgment and may be charged and collected by the Borough without further judicial proceedings. The Borough may also commence appropriate actions in equity or other to prevent, restrain, correct, enjoin or abate violations of this chapter. No bond shall be required of the Borough if the Borough seeks injunctive relief.
The enactment and existence of this Borough of Franklin Park Energy Source Operations Ordinance shall not be construed as creating any right or entitlement whatsoever in any person to perform energy source operations on Borough property or any other property, public or private. Furthermore, this chapter 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 chapter does not concomitantly confer any right to perform energy source operations on such property. This chapter 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 person permitted by the Borough Council to conduct such operations under this chapter. Accordingly, the Borough shall not, as a result of any decision to grant or deny a permit under this chapter, be held liable for any harm directly or indirectly related to energy source operations performed in the Borough by a permittee.