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1. Protection of Water Supplies.
A. Public Water Supply.
(1) The Supervisors hereby determine that the providing of safe, potable and aesthetically acceptable drinking water to houses, buildings and dwellings of the Township is important to the health, safety and welfare of the residents of the Township.
(2) The Supervisors also determine that because of the sinkhole problems in the Township, and the lack of complete and comprehensive records thereof, and because of the dangers of underground limestone vaults and the infiltration of water supplies through underground limestone vaults, and because of the difficulties inherent in trying to trace water or water contamination underground, and because of changes in strata and water flow that may result from blasting in connection with limestone and other mining operations, any applicant for a registration certificate shall certify and bear the burden of proving by clear, precise, competent and convincing evidence that the applicant's proposed activity will not affect any public water supply, which, for purposes of this Part, shall be any water supply serving ten or more households.
(3) If the proposed facility is to be located in any area higher in elevation than any public water supply and if said water supply (a) is groundwater dependent and is within 3 miles of such facility, or (b) is surfacewater dependent and the proposed facility or part thereof (measured by the boundaries of the area permitted or to be permitted by the Commonwealth) is within the watershed of said public water supply, then it shall be presumed that such facility could affect said water supply unless the applicant shall rebut said presumption by competent proof meeting the clear, precise and convincing standard set forth above.
(4) If, at any hearing under subsections (5) or (6) of § 20-103, the effect of the project on a private water supply (a private water supply for this purpose is one which is within 2,500 feet of the boundary of the project area to be permitted by the Commonwealth and which does not meet the foregoing definition of a public water supply) is at issue, applicant shall bear the burden of proving by a preponderance of the evidence that the applicant's proposed activity will not adversely affect the private water supply.
(5) As to private water supplies as defined in subsection (4) but not within the 2,500 foot area required by the definition in subsection (4), the owner or user shall have the burden of proving by a preponderance of the evidence that the proposed activity will affect his or her private water supply.
B. Whether under this Section or any other provision hereof, the decision of the Supervisors on all questions of fact shall be subject to the highest degree of finality allowed by law and the scope of review of any such decisions shall be the narrowest scope of review which legally may be imposed. This Section is not intended to deny any person any right of review or appeal which is provided for by law.
C. If the applicant is unable to produce evidence to the Supervisors meeting the standards set forth above, or if the applicant chooses not to attempt to meet such requirements of proof, then the applicant can still qualify for a registration certificate by entering into an agreement with the Supervisors to adequately protect or replace or treat the water supply involved at no cost to the Township or to those affected or potentially affected and by furnishing security as follows:
(1) The initial amount of security to be provided shall be 150% of the cost of performing the obligations under the agreement determined as follows: cost estimates and projections prepared by competent professionals and adequately explained and documented and not inherently unreasonable will be accepted in making determinations under this subsection unless the Supervisors obtain contrary advice from other competent professionals. In such event, the conflicting professionals shall select an independent professional whose decision on cost estimates and projections shall be final. Applicant shall pay the costs incurred for such independent professional. Cost estimates shall be calculated to project costs 5 years ahead (as if the facilities were constructed 5 years after the time the estimates are actually prepared). The initial security shall be posted prior to the granting of a registration certificate, or, if applicant elects to defer posting of initial security, the Township's grant of a registration certificate shall be conditioned upon the posting of the security prior to commencement of construction or operation. In such a case, applicant shall have no authority or right under said registration certificate to construct or operate a facility until such security is in fact posted.
(2) Said cost estimates shall be revised in the same manner every 3 years and additional security shall be provided if necessary to cover 150% of the revised cost estimates. Such additional security shall be provided within 30 days of a request therefor from the Supervisors.
(3) Security shall be provided by:
(a) Cash deposits or assignments of certificates of deposit or similar instruments equivalent to cash.
(b) Irrevocable or renewable letters of credit on terms and with obligors satisfactory to the Supervisors exercising reasonable business judgment.
(c) Irrevocable or renewable guarantees on terms and with guarantors acceptable to the Supervisors exercising reasonable business judgment.
(d) Surety bonds on terms satisfactory to the Supervisors and with responsible surety or sureties satisfactory to the Supervisors exercising reasonable business judgment. Whenever the Supervisors have reasonable doubt about the solvency or continued solvency or a surety or reasonable doubt about the ability of the surety to meet its obligation at all times when it might be required to do so, the Supervisors may require a substitute surety meeting the foregoing standards of other equivalent security.
(e) A combination of the foregoing acceptable to the Supervisors.
(f) Some other form of security acceptable to the Supervisors.
(4) If revisions of cost estimates are not made when required, or if additional or substitute security is not provided when required, or if security in whatever form is not renewed and maintained in effect at least 60 days prior to the end of any expiring term (and evidence thereof furnished to the Supervisors), and if applicant shall not cure said deficiency within 10 days of notice thereof, except where notice was already given, such as with respect to providing additional security within 30 days of request therefrom, or if applicant shall fail to meet all of applicant's obligations under the agreement with the Township and shall not cure said breach within 10 days of notice thereof, the Township may forthwith declare the security forfeited and forthwith receive or collect same on or upon the affidavit of at least two of the Supervisors that one or more of the circumstances entitling the Township to forfeit of the funds has occurred. Any funds thus forfeited to the Township shall be held and used for the purposes for which the security was posted and for all costs and expenses, including legal services and expenses, associated with enforcement of the collection of the security, maintenance thereof, and performance of obligations under the aforementioned agreement; provided, however, that:
(a) If the reason for forfeiture is the failure to revise cost estimates when required, or failure to post additional or substitute security, or failure to renew or maintain security as required, then the funds shall be held by the Township (except for expenditures to reimburse itself for costs and expenses as aforesaid, excluding costs and expenses of providing a substitute water supply) and if the reason for the forfeiture is cured within 9 months, the funds, less said costs and expenses, shall be repaid to the original payor or at the original payor's direction.
(b) Notwithstanding subsection (a) above, if, during the 9 month period referred to in subsection (a) it is necessary under the terms hereof or under the terms of the agreement with the Township that a substitute water supply be provided, then the Township may expend said funds for that purpose.
(c) The Township may allow applicant to proceed to provide any substitute water supply and if applicant does so in accordance with the terms of this Part, the agreement above referred to, and applicable law, any forfeited amount in excess of the Township's costs, expenses and legal fees and expenses as aforesaid shall be returned to the provider of the security or such provider's designee.
(d) If, as permitted in subsection (b), above, the Township expends such funds to provide such substitute water supply, it shall refund to the provider of such security any excess over the amount expended therefor and the amount of the aforementioned costs, expenses and legal fees and expenses, and an administrative fee of 15% of the Township's project costs and other costs, expenses and legal fees and expenses as aforesaid.
(e) If the Township's project costs and other costs, expenses and legal fees and expenses shall exceed the amount of the security, applicant shall pay the excess to the Township within 10 days of demand therefor.
(f) If the defects referred to in subsection (a) above are not cured within 9 months, the Township may also proceed to provide such substitute water supply or allow applicant to do so, and subsections (c), (d) and (e) above shall be applicable.
(5) When necessary, in lieu of forfeiture of the security or any portion thereof, applicant may provide an immediate suitable substitute water supply or any portion of such substitute system as needed and means of implementation and use thereof.
(6) The duration of the security shall be (a) 10 years after closing of the facility, or (b) until no leachate is produced of a quality inferior to or lesser than the quality of the naturally occurring water prior to construction of the project, whichever period is greater.
D. All public water supplies shall be available to an applicant for background and periodic testing at reasonable times during reasonable business hours provided applicant complies with reasonable requirements of the owner or operator of such water supplies as to safety and accompaniment by a representative of the owner or operator. The Township hereby requires. the owner and operator of such water supplies to permit such testing. As to private water supplies, if the owner refuses upon reasonable request of applicant to permit such testing in the same manner as herein required for public water supplies, the owner and all persons served by such water supply shall waive all protection under this Part and no requirements of this Part shall apply to such water supply.
E. Water Quality.
(1) With respect to any public water supply referred to in subsection (A)(2) of this Section, it shall be presumed that any significant and material deterioration or degradation in the quality or quantity of water after operation of the facility commences (as compared to quantity and quality of water during a period immediately preceding commencement of operation of the facility) is caused by the facility. This presumption shall not preclude appropriate proof of causation under other circumstances.
(2) If such deterioration or degradation causes said water to fail to meet Federal safe drinking water standards in some respect that did not exist prior to operation of the facility as aforesaid, then a substitute water supply and appropriate interim remedial action shall be furnished by the applicant forthwith upon the concurrence of such deterioration or degradation, unless applicant notifies the Township that it believes there exists clear, precise and convincing evidence that the deterioration or degradation in water quality or quantity is not caused by the facility. In such a case, the Township shall grant a prompt hearing on the issue at applicant's request and applicant shall not be required to take interim remedial action until the Township renders a decision after said hearing.
(3) If the Township determines that applicant has failed to rebut the presumption or causation by clear, precise, competent and convincing evidence, then temporary or interim remedial action shall be taken pending final adjudication unless a supersedeas is obtained from a court of competent jurisdiction. Test results from applicant's monitoring wells shall be admissible, but not necessarily conclusive, evidence on the causation issue. Also, if the problem is a deterioration or degradation in quantity of water, evidence that the area experienced a severe drought shall be admissible, but not necessarily conclusive, on the causation issue.
(4) If temporary or interim remedial action is required, the temporary or interim replacement water need only meet federal safe drinking water standards or the quality and quantity standards existing prior to operation of the facility, whichever standard is least severe.
(5) Upon final adjudication of applicant's responsibility as aforesaid, a permanent substitute water supply shall be provided as soon as possible. The permanent substitute water supply or treatment facility shall be such as to provide water at least equal to the quantity and quality of the water prior to operation of the waste facility.
(6) If the applicant's project as submitted to and permitted by the Department of Environmental Protection provides for monitoring wells between the waste facility and a public water supply as herein defined, and if the test results from said monitoring wells indicate a significant and material degradation of water quality (or quantity if the loss of quantity is due to operation of the facility rather than natural drought or other unrelated cause), then applicant shall undertake prompt action to either (1) prevent said water in its degraded state from percolating or moving further toward the water supply (such as by pumping and treating or otherwise intercepting said water), or (2) proceed with implementing the substitute water supply plan or treatment plan so that the replacement or treated water will be available before the degradation found in the monitoring wells shall reach the water supply.
2. Additional Requirements.
A. The applicant shall, in the materials submitted, or by separate submission if necessary to comply herewith, furnish evidence that the proposed activity will not create or contribute to a rodent or odor problem or mosquito problem or other similar problems that could affect the health, safety, and welfare of the citizens of the Township by virtue of objectionable, hazardous or offensive odor from the project being noticeable outside the property line of the property dedicated to the project or by virtue of the possibility of mosquitos, rodents or other health danger originating on the property affecting other property, persons or things outside the boundary line of the property dedicated to the project. If such off-premises effects occur during operation of the project, applicant shall take prompt remedial action.
B. The applicant shall, as part of the application and by such separate submissions before or after registration as may be required, describe in such detail as is reasonably practical the chemical, physical and biological characteristics of the waste to be involved in the project and identify the source of such waste. This information shall be supplemented from time to time as necessary, and such information shall, if properly designated as confidential, be-subject to the confidentiality provisions of § 20-103(3), hereof. The application shall indicate the methods of transportation expected to be . used. The application and such subsequent submissions as may be required shall set forth in reasonable detail the dangers that could be presented from a motor vehicle accident involving a truck or other vehicle carrying waste and the steps which would have to be immediately taken to protect the welfare and safety of the citizens of the Township so that by reference thereto the Township police and Supervisors and fire officials could act promptly in the event of such an occurrence so as to minimize damage and danger to residents of the Township and their property pending the time when expert officials from the State or elsewhere could be called in to deal with the problem. In order to cover situations where composition of the waste may change before additional information is made available or where the Township is unable to determine the characteristics of a particular load of waste that may be involved in an accident, the applicant shall have available to the Township a qualified individual 24 hours a day to deal with any such accidents or problems, which individual shall have reasonable familiarity with all of the substances thereof which will be handled by the project, and of emergency procedures to be undertaken with respect to any such substance or who shall have access to persons who have such information and expertise. The purpose of this provision is to provide as much immediate, local, onsite expertise as possible, with easy access to more detailed information, so as to minimize any danger or damages resulting from an accident or spill. The applicant shall designate a contact person or persons who can be reached for emergency information at any time. The Supervisors shall designate a person with whom the applicant can communicate on emergency matters at any time.
(Ord. 44-8-92, 8/10/1992, §IV; as amended by Ord. 12/10/2001)