All mining and topsoil excavation activities shall be in conformity with the provisions of this article and shall be located only within areas specifically permitted according to the provisions of this chapter.

The provisions of this article shall regulate any mining activity that does not fall within the NYSDEC's jurisdiction as defined in the Environmental Conservation Law.

Before any mining or topsoil sales activities are commenced and before any topsoil, earth, sand, gravel, rock or other naturally occurring material is removed from the ground, the owner or lessee of the premises or the agent of either, duly authorized in writing, for such purposes, shall obtain a permit therefor, and for that purpose shall file with the Town Clerk an application for a permit in such form as the Town Board may prescribe. Each application shall include a detailed report of the proposed work and a plan setting forth in detail the nature and extent of the proposed excavation. Such report and plan shall show the exact condition of the subject plot or premises of land both before and after the proposed excavation, including the location of haul roads, impoundment areas, screening operations, water control features, erosion control measures, and the sequence of operations. There shall be filed with such application a legal description of said premises, together with the name and address of the owner of record of such premises and the names and addresses of the holders of any mortgages thereon. The location of all buildings upon said premises shall be set forth upon the plan accompanying said application, which shall be drawn to scale, giving the location and dimension of any and all buildings or other structures thereon. Such plan shall further indicate any and all public or private streets or rights-of-way adjacent to, in or upon said premises. A letter of intent shall be submitted outlining the estimated amount of material to be removed and the schedule for the work.

Any permit issued hereunder shall be conditioned that the premises, upon the conclusion of such excavation, shall be filled within a period to be specified therein with clean, nonburnable fill containing no garbage, refuge, offal, hazardous waste, electronic waste, or any deleterious materials.

Dust-preventive measures shall be used to prevent dust from spreading from the premises. The restoration of the premises shall include grading to provide a safe and stable grade. The restoration shall provide at least six inches of topsoil over all excavated areas, which shall be immediately reseeded with a permanent seed mixture or other fast-growing surface vegetation until growth is reestablished.

The Town Clerk shall, upon presentation of a duly verified application for a mining or topsoil sales permit accompanied by the consent, in writing, of the owner, shall request a review from the Town Board. The Town Clerk shall issue the permit upon obtaining the Town Board’s approval for the issuance of a permit upon any conditions as may be imposed by the Town Board in a particular case. The applicant shall pay all associated fees as set by Town Board resolution and provide a financial guarantee (cash or a letter of credit from an approved financial institution) in an amount determined and approved by the Town Board. Any financial guarantee shall ensure the faithful performance of the terms and conditions of this article and any conditions noted in the permit. Each permit shall be conditioned on the observance of all municipal ordinances. Further, the applicant shall indemnify and hold harmless the Town Board, the Town of Penfield, and its employees and its agents for any and all damage to property of the Town, and for compliance with the terms and conditions of such permit. The cash proceeds of any guarantee, in the event of default, shall be conveyed to the Town and the Town of Penfield shall be entitled to maintain any action thereupon. Said guarantee shall remain in full force and effect until a certificate of completion has been issued by the Town Engineer certifying that all provisions of this article and the conditions of any permit issued have been fully complied with.

Applicants shall complete and submit an environmental assessment form (EAF) or an environmental impact statement, if required, and meet any and all requirements of the New York State Environmental Quality Review Act (SEQR), the New York State Department of Environmental Conservation (NYSDEC), and the United States Army Corps of Engineers (USACOE).

Each permit issued pursuant to the terms and conditions set forth in this article shall be granted for no more than six months after the date of its issuance unless further extended by the Town Board, upon receipt of input from the Town staff. Any extensions shall require payment of fees as may be determined by the Town Board.

All applications for mining or topsoil sales shall be reviewed by the Town Board, which shall make a determination, in its discretion, of the need to require a public hearing on the matter. Such public hearing will be held not less than three days nor more than 30 days after the public hearing notice has been given prescribing the time, date, and place of the public hearing. Such notice shall be given by the Town Clerk by causing the same to be published in the official newspaper of the Town and by posting said notice on the bulletin board in the Town Hall. Such notice shall contain a brief explanation regarding the application. Approval or denial of the permit application by the Town Board shall be rendered after the conclusion of any public hearing on said application.

Any proposed modifications to the approved plans after a permit has been granted shall be submitted to the Town Board for review and approval. No action shall be taken until a written approval of the Town Board or authorized official has been issued.

No mining or topsoil sales operation shall be conducted closer than 100 feet to a public right-of-way or an adjoining property line, except that grading may be conducted within such limits in order to provide adequate access to and buffer of the premises. The setback/buffer area shall not be used for any use in conjunction with the excavation and appurtenant activities except for one public notice sign for identifying use, buffering, and those conditions stated in the permit.

All equipment, structures, and other operational facilities, including sedimentation ponds, shall not be closer than 100 feet to the public right-of-way or to an adjoining property line.

Access and haul roads shall be constructed of a stone base able to support an H-20 loading, as defined by the American Association of State Highway and Transportation Officials (AASHTO). All access and haul roads leading to public highways shall be dust- and mud-free. Mining/Topsoil screening operations shall be located to minimize impacts of noise and dust to adjoining residents. The contractor/operator shall provide dust control measures at all times.

Verification of volume of materials to be removed and sufficient reserve of topsoil for restoration work shall be provided, in writing, from a licensed professional engineer, surveyor, or landscape architect.

Fencing shall be required on all sides of the excavation area with a depth greater than four feet (vertical).

Mining and topsoil sales operations shall only be permitted between 7:00 a.m. and 5:00 p.m. Monday through Friday and between 8:00 a.m. and 1:00 p.m. on Saturday, except for Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day. Hauling trucks shall enter and exit the premises only within the hours permitted. All equipment operations shall be restricted to the above hours.

All public roadways shall be cleaned of spillage or windblown materials, as ordered by the Town representative. The owner shall have a sweeper and water truck on site within 24 hours of request by Town officials.

All equipment, buildings, structures, etc. shall be removed from the site within two months of termination of the permit.

The Town reserves the right to inspect all operations to verify that the terms and conditions of any permit are being complied with. Failure to allow access to Town personnel or their agents may be grounds to revoke the permit. The cost of Town inspections shall be reimbursed to the Town by the applicant.

The applicant shall provide for inspections in accordance with the current Department of Environmental Conservation SPDES permit for stormwater discharges. Any disturbance of one acre or more shall require the filing of a notice of intent (NOI) with the NYSDEC prior to the start of work. A copy of the NOI shall be provided to the Town in an approved stormwater pollution prevention plan (SWPPP).

The active mining and topsoil sales area shall not exceed five acres at any one time. The applicant may request a five-acre disturbance waiver from the Town Board. All provisions of the current Department of Environmental Conservation SPDES permit for stormwater discharges shall be followed.

Nothing contained in this article shall be construed to prevent a person from removing topsoil from one part of his/her land to another part of the same premises when such removal is necessary as an accessory use or is made for the purpose of improving said property;

Sites subject to Town subdivision and site plan review processes, provided that the application has received approval by the appropriate board or authorized official;

Excavation for the purpose of constructing a basement wall, building, or utility, or part thereof, for which a permit has been issued by the Town of Penfield Building Department;

Any capital or public works project authorized by the Town of Penfield, NYSDOT, or Monroe County; and

Customary agricultural operations not located in an Environmental Protection Overlay District (EPOD).

The authorized official shall notify the applicant, in writing, of any violations of this article. The applicant shall have seven calendar days to remedy any violations.

Any person, firm, or corporation who or which violates any provisions of this article shall be subject to the penalties set forth in § 250-15.9 of this chapter, as may be amended.