[HISTORY: Adopted by the Borough Council of the Borough of
Franklin Park 9-18-2019 by Ord. No. 650-2019. Amendments noted
where applicable.]
A.
This chapter shall be known and may be
cited as the "Borough of Franklin Park Energy Source Operations Ordinance."
B.
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.
C.
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.
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.
The Borough employee who is charged with the administration
and enforcement of the Building Code and the Zoning Code.
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.
A.
Application for an energy source operations
permit hereunder shall be made with the Building Inspector/Zoning
Officer and shall contain the following information:
(1)
Name of the applicant;
(2)
Address of the applicant;
(3)
Type of explosives or other geophysical
methods of exploration to be used, and the purposes therefor;
(4)
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;
(5)
A traffic control plan for any operations
or testing that will impede, disrupt and/or redirect traffic on a
public right-of-way;
(6)
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;
(7)
A copy of the applicant's certificate of
insurance;
(8)
Where applicable, proof of the applicant's
right or license to handle explosives in the Commonwealth of Pennsylvania;
(9)
Where applicable, proof of the applicant's
license to operate a seismic drone under applicable federal law;
(10)
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;
(11)
The names of all property owners
and tax parcel numbers for all properties within the testing area;
(12)
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;
(13)
The dates and duration for all proposed
energy source operations; and
(14)
Other pertinent information as required
herein.
B.
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.
C.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
A.
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.
B.
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.
A.
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.
B.
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:
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APPLICANT ACKNOWLEDGES THAT THE BOROUGH
HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF INFORMATION
REGARDING SUBSURFACE STRUCTURES AND FACILITIES FURNISHED TO APPLICANT
AND MAKES NO REPRESENTATION OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS
OF SUCH INFORMATION. APPLICANT EXPRESSLY ACKNOWLEDGES THAT THE BOROUGH
MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING
BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF
FITNESS FOR A PARTICULAR USE OR PURPOSE OF SUCH SUBSURFACE INFORMATION.
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C.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
A.
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.
A.
No person shall conduct energy source operations
contrary to or in violation of any provision of this chapter.
B.
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.
C.
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.
