§ 146-7 Responsibility of administrator.
§ 146-9 Expiration of permit.
§ 146-10 Denial of permit.
§ 146-13 Fees and financial security.
§ 146-14 Certificate of completion.
§ 146-16 Hazardous condition; nuisance.
§ 146-19 Performance and design standards; excavation.
§ 146-21 Fills and embankments.
§ 146-22 Minimization of erosion and sediment.
§ 146-23 Slope treatment and ground cover.
§ 146-24 Retaining walls and fences.
§ 146-28 Violations and penalties.
§ 146-31 Purpose and application.
§ 146-33 Responsibility of Zoning Administrator.
§ 146-34 Expiration of permit.
§ 146-35 Denial of permit.
§ 146-38 Fees and financial security.
§ 146-39 Certificate of completion.
§ 146-41 Hazardous condition; nuisance.
Building construction — See Ch. 105.
Floodplain management — See Ch. 140.
Stormwater management — See Ch. 240.
Subdivision and land development — See Ch. 250.
This article shall be known and may be cited as the "Site Grading Ordinance of the Township of Robinson."
To provide minimum standards to safeguard persons, protect property and promote the general welfare by preventing excess erosion, hazardous rock and soil slippage, sediment production and other soil and water management problems by regulating and controlling the design, construction, quality of materials, use, location and maintenance of grading, excavations and fills.
To establish performance standards which ensure land use practices respectful of the natural topography and capabilities of the land.
To encourage maximum retention of natural topography and vegetative features on hillsides.
To prevent earth-flow and rock-fall landslides.
To prevent soil erosion and increases in stormwater runoff which result in stream siltation, flooding and damage to the property of others.
To encourage imaginative and innovative site development and building design that adapts to and takes advantage of the best use of the natural terrain.
This article concerns new grading, excavation and fills, and changes, additions or alterations made in existing excavations, fills and embankments which shall conform to the provisions of this article.
No site shall be excavated, filled and/or graded except under the conditions, restrictions and regulations as prescribed herein and set forth in permits granted by the administrator for such purpose.
The Township Board of Commissioners shall designate an administrator for review, approval and granting of grading permits and to make inspections of the grading work. The Township Board of Commissioners hereby designate the Township Engineer to be the administrator of this article and the Township Zoning Officer to enforce this article.
A separate grading permit shall be required for each site. One permit shall cover all grading, excavation and any fills made on the same site.
Only one permit shall be required for the grading of a large continuous parcel of land for a major planned development such as a planned subdivision development or a planned commercial development when the standards for the grading of the entire parcel are satisfactory to and approved by the administrator.
All grading, excavations and fills, whether or not a grading permit is required, shall conform to the provisions of this article.
Except for emergency repairs necessary for the safety of persons and/or property, no person shall undertake to excavate, fill and/or grade any site except pursuant to a permit applied for and issued in advance of the undertaking of such work. Where emergency repairs are necessitated, application for a permit shall be made within five days following completion of such work. Such application shall be accompanied by such fees prescribed herein, and thereafter the remaining sections of this article shall apply as if no such work was undertaken or prosecuted prior to the grant of permit.
Permits issued pursuant to this article do not relieve the owner of responsibility for securing required permits for work to be done which is regulated by any other applicable code or ordinance.
If this article conflicts with any other ordinance of the Township of Robinson, the more strict ordinance shall prevail and the more strict provisions shall be adhered to.
The requirements of this article , §§ 146-7, 146-11, 146-12, 146-14 through 146-28, inclusive, shall be applicable and are incorporated therein to any grading approved in connection with an approved site land development plan or subdivision plan which contains a grading plan.
An excavation which does not exceed five feet in vertical depth at its deepest point, measured from the natural ground surface, and covers a surface area of less than 5,000 square feet, provided that the surface of such excavation does not have a slope at any point steeper than three horizontal to one vertical. However, this subsection shall not be deemed to nullify the application of this article or any requirement for obtaining a grading permit with respect to any fill made with material from such an excavation unless otherwise excepted by Subsections B and C of this section.
A fill which does not exceed 500 cubic yards of material on any one site. Any fill which is more than 10 cubic yards and not more than 499 cubic yards shall be required to comply with the requirements of Article II, Small Fill Requirements, of this chapter.
Fill which is not intended to support structures and does not exceed five feet in vertical depth at its deepest point, measured from the natural ground surface, and does not cover an area of more than 5,000 square feet, provided that the surface of such fills does not have a slope at any point steeper than four horizontal to one vertical and does not obstruct a drainagecourse.
An excavation below finished grade for basements and footings of a building, swimming pool or underground structure authorized by a building permit and an excavation of a driveway between a building site and the street. However, this Subsection D shall not be deemed to nullify the application of this article or any requirement for obtaining a grading permit with respect to any fill made with the material from such an excavation unless otherwise excused by Subsections B and C of this section.
Soil excavated under the authorization of a properly issued building permit which is temporarily stockpiled on the same site as the excavation. If, however, excavated material is stockpiled on a site for a period of longer than 120 days, then a permit shall be necessary when disposing of the fill material.
Exploratory excavations under the direction of a soils engineer or engineering geologist.
Excavations for wells, tunnels, public utilities or cemetery graves.
A permit shall not be required for work performed by the Township or by contractors employed by the Township in a public street or alley, Township park, playground or recreation area, access or utility easement area or on other Township property.
Grading which is limited to mining, quarrying or stockpiling of coal, rock, sand, aggregate or clay that satisfies requirements of regulations of the Commonwealth of Pennsylvania and for which a sedimentation and erosion control plan has been approved and permits have been obtained.
Grading which is limited to solid waste disposal areas or sanitary landfills operated in accordance with the requirements and rules of the Pennsylvania Department of Environmental Protection and for which permits have been obtained.
Landscaping for single-family homes, accepted agricultural land management practices such as plowing, nursery operations, removal and/or transplanting of cultivated sod, shrubs and trees and tree cutting at or above existing ground, and logging operations leaving the stump, ground cover and root mat intact.
Any grading depicted in an approved site land development plan or subdivision plan which contains a grading plan, provided that such approval requires the posting of financial security and requires the payment of all fees, costs and escrows to the Township.
The person qualified and officially appointed by the Board of Commissioners to manage this article or his authorized representative.
Any landowner or agent of a landowner who proposes to make or cause to be made any excavation, fill or any combination thereof pursuant to the provisions of this article.
A registered architect licensed as such in the Commonwealth of Pennsylvania.
Natural rock layer, hard or soft, in place at ground surface or beneath unconsolidated surficial deposits.
An area of land which may include natural or artificial land forms, shrubs, bushes, trees, grass or other landscaping material in order to provide a compact, year-round visual screen and protection for adjacent properties.
Robinson Township Ordinance No. 10-1987, as amended.
Any rock, sand, gravel, natural soil or other similar material.
A registered professional engineer in the Commonwealth of Pennsylvania and knowledgeable in civil engineering.
The detachment and movement of soil or rock fragments by water, wind, ice or gravity, including such processes as gravitational creep.
Any act by which earth, sand, gravel, rock or any other similar material is cut into, dug, quarried, uncovered, removed, displaced, relocated or bulldozed and shall include the conditions resulting therefrom.
Those slopes as identified on the soil group map as steep slopes of 25% or more or any virgin area where, in a one-hundred-foot horizontal distance, the average slope exceeds 25%.
Any act by which earth, sand, gravel, rock or any other material is deposited, placed, pushed, dumped, pulled, transported or moved to a new location, including the condition resulting therefrom.
Areas designated by the Federal Emergency Management Administration and other areas known to be subject to flooding.
A report prepared by a soils engineer or engineering geologist.
The elevation of the existing or proposed ground surface at the location of any proposed excavation or fill.
Excavation or fill, or any combination thereof, including the conditions resulting from any excavation or fill.
A grading operation in excess of 5,000 cubic yards and performed in conformance with a grading plan and specifications prepared by a professional engineer.
A grading operation of less than 5,000 cubic yards. Where the site conditions warrant, the administrator may require the submission of a report on the site as prepared by a professional engineer, soils engineer or engineering geologist.
Any permit required pursuant to the provisions of this article.
A plan that depicts existing and proposed contours for any proposed excavation and/or fill, which is set forth at a minimum of two-foot contour intervals.
Any danger or potential danger to life, limb or health or any adverse effect or potential adverse effect to the safety, use or stability of property, waterways, public ways, structures, utilities, storm sewers, sanitary sewers, including stream pollution.
A landscape architect licensed as such in the Commonwealth of Pennsylvania.
Those soil formations whose characteristics are classified as being landslide-prone or otherwise sensitive in the Soil Survey of Allegheny County, Pennsylvania.
Any landowner, agent of said landowner or tenant with the permission of said landowner who has been granted a grading permit pursuant to the provisions of this article.
Any natural person, association, corporation, utility, local agency, administrative agency or authority, any agent or agency thereof, any combination of the foregoing.
A structure composed of concrete, steel or other approved building material constructed for the purpose of supporting a cut or filled embankment which would otherwise not comply with the requirements and standards set forth in this article and which is more than three feet in height, as measured on the exposed vertical surface of the wall.
A lot, tract or parcel of land but may be a series of lots, tracts or parcels of land which are adjoining and with respect to which grading work is to be continuous and performed at the same time, situate within the Township of Robinson, Allegheny County, Pennsylvania.
The angle of the existing or proposed ground surface plane to the horizontal expressed as the ratio of the horizontal to the vertical or in percentage of slope (rise or fall per hundred feet).
A registered professional engineer in the Commonwealth of Pennsylvania having training and experience in soils engineering.
Soil Survey of Allegheny County, Pennsylvania, as prepared by the USDA Soil Conservation Service, et al. and accompanying text, issued August 1981.
Any and all parts or combination of ashes, garbage, refuse, radioactive material, combustible demolition materials and industrial wastes such as food processing wastes, wood, plastic, metal scrap and other such materials whose disposal is regulated by the Pennsylvania Department of Environmental Protection.
Slopes where, in a one-hundred-foot horizontal distance, the average slope exceeds 25%.
The control of surface water runoff as regulated by Chapter 240 of the Code of the Township of Robinson.
The Subdivision and Land Development Ordinance, as amended, being Chapter 250 of the Code of the Township of Robinson.
The consulting professional engineers licensed by the Commonwealth of Pennsylvania to practice engineering, knowledgeable in the branch of civil engineering, who have been retained by the Township Commissioners of the Township of Robinson.
The Zoning Ordinance, as amended, being Chapter 300 of the Code of the Township of Robinson.
Editor's Note: See Ch. 105, Building Construction.
Unless otherwise expressly stated, the terms and words defined in this section shall, for the purpose of this article, have the meanings herein indicated. Words used in the singular number include the plural and words in the plural include the singular; words in the masculine gender include the feminine and neuter, and the word "building" includes the word "structure" and the word "structure" includes the word "building."
Describe the land on which the proposed work is to be done by lot, block, tract and street address or similar description which will readily identify and definitively locate the proposed work.
State the estimated dates for the starting and completion of grading work.
State the purpose for which the grading application is filed.
State whether or not a building, structure or other improvement, the construction of which will require a building permit pursuant to the provisions of the Building Code, is intended to be erected on the land on which the grading is to be done.
The name of the owner of the land.
The permission and approval of the owner of the property if the applicant is an agent or tenant.
Accurate location by lot, block, tract, street address, a location map or other similar information.
A contour map showing the present contours of the land and the proposed contours after completion of the proposed grading at two-foot intervals where the average slope is 10% or less and at five-foot intervals where the average slope exceeds 10%.
Cross sections of the proposed cut or fill on one-hundred-foot intervals which show the method of benching, both cut and/or fill; provided, however, that there shall be not less than two cross sections for each site.
A plot plan showing the location of the grading boundaries, lot lines, neighboring streets or ways, buildings, surface and subsurface utilities and waterways, drainage patterns and sufficient dimensions and other data to show all work.
A description of the type and classification of the soil from the soil survey, other standard surveys or from other methods.
Details and location of any proposed drainage, stormwater management structures and pipes, erosion and sedimentation control measures, walls and cribbing, together with a map showing the drainage area of land tributary to the site.
Seeding locations and schedules, debris basins, diversion channels and other erosion control measures.
The nature of fill material and such other information as the administrator may require to carry out the purposes of this article.
Storm drainage computations and studies, prepared in accordance with Chapter 240, Stormwater Management, §§ 240-1 through 240-13, including the estimated runoff from the area served by any drains, ditch or pipes and computations showing the capacities of the drainage structures.
A report on the status of any coal seams underlying the site, including precautionary measures needed to alleviate possible mine water drainage problems and subsidence.
Where the proposed grading will result in a cut or fill slope exceeding 20 feet in vertical height, soil borings shall be taken and a report prepared by a registered engineer qualified in soil mechanics addressing the proposed earthwork and grading. Such report shall make specific recommendations for grading design.
The name and seal of the professional engineer who prepared said plans.
A soil conservation report shall be required and include existing site description of the topography, drainage, cover and soils; major problems such as soil limitations, erosions and sediment potential and surface runoff changes and recommendations to minimize soil limitations, erosion and sediment and surface water disposal problems.
Trees and natural ground cover shall be retained wherever possible to minimize the impact of the development on the site and environment.
Provisions of the Subdivision and Land Development and the Stormwater Management Ordinances are incorporated herein by reference.
Editor's Note: See Ch. 250, Subdivision and Land Development, and Ch. 240, Stormwater Management, respectively.
The administrator shall require that a geotechnical engineering report be submitted by the applicant if the site is, has been or is likely to become hazardous to persons or property. The overlay maps such as the Coal Resource Maps prepared by United States Geological Survey, 1975, for the Greater Pittsburgh Region shall be used to locate hazardous areas. The report shall contain a detailed description of the geological conditions of the site and shall include conclusions and recommendations that will demonstrate the relationship of the geological conditions to the proposed development, including hazardous conditions, water resources, mineral resources and environmental impact.
In special cases, when grading occurs in areas of landslide-prone soil or rock-fall prone areas as recognized by the soil survey or other standard surveys, the administrator may require special precautions prior to issuing a permit to the applicant. The results of all soil tests and core borings made relative to the site shall be submitted to the administrator.
The administrator may deny a grading permit if the use of land to be graded, either excavation or filling, is not specifically known except for the intent of improving the site. The administrator shall review the application, plans, specifications and reports and determine whether the project will improve the site, is in the best interest of the Township and is not detrimental to the environment. The applicant may appeal the administrator's decision to the Board of Commissioners by preparing and submitting to the Board of Commissioners a site plan showing the development of the land in accordance with the Subdivision and Land Development Ordinance (Chapter 250).
When the requirements of this article for obtaining a permit have been met, the administrator shall approve the application and proposed plan and grant a grading permit to the applicant.
The administrator may waive the requirement of any or all plans and specifications listed in this article if he finds that the information on the application is sufficient to show that the work will conform to the provisions of this article.
In the event that the applicant will move or grade an area of more than 50,000 square feet or grade more than 10,000 cubic yards, then a formal agreement may be required by the Board of Commissioners, which will be prepared by the Township Solicitor. The grading agreement may include requirements as may be recommended by the Township's Engineer. All costs and expenses incurred by the Township, including legal fees and engineering review, shall be borne and paid for by the applicant.
Every grading permit shall expire and become null and void if the work authorized by said permit has not been commenced within six months or is not completed within one year from the date of issue, provided that the administrator may, if the permit holder presents satisfactory evidence that unusual difficulties have prevented work being started or completed within the specified time limits, grant a reasonable extension of time, and provided, further, that the application for the extension of time is made before the date of expiration of the permit.
If the administrator shall determine that the work proposed by the applicant is likely to endanger any property or person or any street or alley or create hazardous conditions, the grading permit shall be denied. In determining whether the proposed work is likely to endanger property or streets or alleys or create hazardous conditions, the administrator shall consider, among other relevant factors, the following: possible saturation by rains, earth movements, surface water runoff and subsurface conditions such as the stratification and faulting of rock, aquifers, mine conditions, springs and the nature and type of soil or rock. Reasons for denial of a grading permit shall be given to the applicant in writing.
Any person who is aggrieved by the application of the provisions of this article may, within 15 days from the date of the denial of the permit or such other adverse determination by the administrator, file a written appeal therefrom to the Board of Commissioners. The Board of Commissioners shall grant a hearing upon such an appeal within 45 days after the receipt of the written appeal.
If any appeal is taken from the issuance of a building permit where a grading permit has also been issued and if such appeal shall, pursuant to the provisions of the Zoning Ordinance (Chapter 300), operate as a stay of all proceedings under any such building permit, then such appeal shall also operate to stay all proceedings under any such grading permit.
The administrator shall make the inspections thereinafter required and shall either approve that portion of the work which has been completed or notify the permit holder wherein the same fails to comply with provisions of this article.
Grading and drainage plans approved by the administrator shall be maintained at the site during the progress of the grading and drainage and until the work has been approved.
The permit holder shall submit to the administrator an as-built drawing of the project before the issuance of a grading certificate of completion.
Initial inspection. When work is about to be commenced and stake out is completed.
Rough grading. When all rough grading has been completed.
All drainage facilities that connect to or shall become public drainage facilities shall be continuously inspected during construction.
Other drainage facilities shall be inspected before such facilities are backfilled.
Additional inspection. When in the opinion of the administrator other inspections are necessary.
Final inspection. When all work, including the installation of all drainage, landscaping and other structures, has been completed.
If at any stage of the work the administrator shall determine by inspection that the nature of the excavation or fills is such that further work as authorized by an existing permit is likely to endanger any property or streets or alleys or create hazardous conditions, the administrator may require, as a condition to allowing the work to be done, that such reasonable safety precautions be taken as the administrator considers acceptable to avoid such likelihood of danger.
Any physical changes from the original plan uncovered on the site during the construction, such as surface water drainage, soil and bedrock dislocations, alteration of groundwater discharge or any other natural or man-made modification which would tend to undermine the basis upon which the permit was issued, must be immediately reported to the administrator by the permit holder. If the circumstances dictate, the administrator shall revoke the permit or otherwise modify the conditions upon which the permit was initially issued.
At the time of application, the applicant shall pay an application review fee to cover the Township's cost of reviewing application documents. Any additional charges incurred by the Township to review the application of an excavation permit shall be borne by the applicant. Any application fees not expended by the Township shall be returned to the applicant within a reasonable period of time.
$500 plus $20 per $1,000 or fraction thereof in excess of $10,001. The basic fee shall not exceed $3,000.
Fees for engineering and legal review and engineering inspections shall be equal to 2% of the total estimated cost of the grading work, stormwater and erosion control facilities and landscaping, and shall be collected by the Township prior to the issuance of a grading permit. An initial escrow of such fees shall be established prior to the issuance of the grading permit. In the event that the escrowed amount falls below 50% of the amount initially escrowed, then the applicant shall be required to deposit additional funds with the Township to reestablish the escrowed amount to 2% of the estimated costs. A minimum of $500 shall be required. Review and inspection costs incurred by the Township in excess of the escrowed amounts shall be the responsibility of the applicant and paid for prior to final inspection.
Should a granting agreement be required by the Township Board of Commissioners as described in § 146-8 of this article, a review fee of $150 will be required, together with payment of all engineering and legal fees incurred by the Township in connection with the special agreement.
The plan checking fee for an amendment to a grading permit authorizing additional work to that under a valid permit shall be the difference between such fee paid for the original permit and the fee required for the entire project; however, a minimum fee of $25 will be charged.
Should the work require the use or occupancy of Township roads or streets for access by heavy construction equipment or for hauling of spoil or borrow material, separate financial security in an amount determined by the Township Engineer shall be required to guarantee the repair of pavements, curbs and sidewalks damaged during the grading operation.
As a condition of approval of an engineered grading permit under this article, the applicant shall post a cash or performance bond or other financial security acceptable to the Township in the amount of 110% of the estimated cost to perform the work. The bond or financial security shall not be in excess of $1,000,000. The cost estimate shall include the complete scope of work needed to be performed by the applicant to comply with this article and shall be prepared and certified by the applicant's engineer or architect and accepted as reasonable by the Township Engineer. The Township shall be the final arbiter as to the reasonableness of any cost estimates. The bond or financial security will not be reduced at any time until completion of the work required under the permit and the posting of the maintenance bond pursuant to Subsection H.
Upon completion of the grading under an engineered grading permit, a maintenance bond in the amount of 15% of the cost estimated as determined in Subsection E shall be posted (payable to Robinson Township) for a period of 18 months.
No financial security shall be required if another bond or approved security is posted for construction and/or site improvements which already covers the cost of grading and other control facilities.
If upon final inspection of the site for which a permit has been issued it is found that the work authorized by the grading permit has been satisfactorily completed in accordance with the requirements of this article, a grading certificate of completion covering such work and stating that the work is approved shall be issued to the permit holder by the administrator.
The owner of any property on which an excavation or fill has been made shall maintain in good condition and repair the excavation or fill permitted and also all retaining walls, cribbing, drainage structures, fences, ground cover and other protective devices as may be a part of the permit requirements.
The continued use of said area shall be contingent upon the proper maintenance and upkeep of all the above-mentioned items satisfactory to the Township and subject to such further conditions as the Township may prescribe, from time to time, to keep the site in proper condition.
The grading certificate of completion may be revoked by the Township Board of Commissioners at any time, upon the recommendation of the administrator, where the conditions of the permit are not being observed; the work covered by the permit has been materially extended or altered without a permit to do so; or conditions exist which prejudice the health, safety and welfare of any persons or property. Before such revocation, the administrator shall first give written notice to the permit holder and to the owner of the property involved, specifying the defect or unsatisfactory condition involved and advising that unless such defect or unsatisfactory condition is remedied the certificate shall be revoked. If the defect or unsatisfactory condition is remedied within 30 days of notice to the permit holder to correct same, the certificate shall not be revoked.
If the permit holder shall fail to correct such defect or unsatisfactory condition within such thirty-day period, the Township may undertake the necessary work and the costs thereof shall be borne by the permit holder and collected in any manner authorized by law, including the imposition of a lien against the property.
Whenever the administrator determines that any existing excavation, embankment or fill has become a hazard, as defined in this article, the owner of the property upon which the grading is located or other person or agent in control of said property, upon receipt of notice in writing from the administrator, shall within the time specified in such notice repair, reconstruct or remove such excavation, embankment or fill so as to eliminate the hazard.
If the permit holder shall fail to correct such hazardous or unsatisfactory condition within the specified time period, the Township may undertake the necessary work and the costs thereof, plus 20%, shall be borne by the permit holder and collected in any manner authorized by law, including an imposition of a lien against the property.
Any excavation not completed within one year from the date of initial grading shall constitute a nuisance and a hazard.
The property owner shall restore, repair, reconstruct or remove such excavation, embankment or fill as directed by the administrator within 30 days of receipt of said written notice.
Dust control. During grading operations, acceptable measures for dust control will be exercised.
Protection of public facilities. All public utilities and roadways shall be protected in the design of and during the grading operation. Construction equipment shall not be operated on public roads without the placement of protective mats. Aggregate driveway or roadway surfaces shall be provided to prevent tracking of dirt and mud onto the public roadways. The Township shall require an overweight hauling bond or road maintenance bond in the event that Township roads are traversed by construction vehicles in the course of the grading activity. The bond shall be calculated at the rate of $40,000 per road mile traversed.
Cleanup. All soil washed or carried onto public streets during grading operations shall be cleaned up as it accumulates. The owner of the property being graded shall be responsible to protect and clean up lower properties of silt and debris which have washed down into the lower properties as a result of the grading work on the higher property.
Workdays. None of the work or activity covered by a grading permit shall be conducted on a Sunday or legal holiday without the approval of the Commissioners.
Work hours. All of the work and activity covered by a grading permit shall be conducted between the hours of 6:00 a.m. and 8:00 p.m., prevailing time, unless these time limits are extended, excused or otherwise modified by the Board of Commissioners.
Live stream crossings. Grading equipment will not be allowed to cross live streams. Provision will be made for the installation of culverts or bridges for such crossings. Permits shall be obtained from the Pennsylvania Department of Environmental Protection for temporary and permanent encroachments, relocations, enclosures and temporary crossings of streams.
Excessive slopes. Grading on excessive slopes shall be avoided so as to minimize erosion and storm runoff, to protect watersheds, to discourage erosion of soils by maintaining adequate foliage cover on excessive slopes and to promote the perpetuation of open space on hillsides. The areas considered to have excessive slope may be revised or modified by the Board of Commissioners where studies or information provided by a qualified agency or person documents the need or possibility for such revision.
All topsoil shall be removed from the area to be graded and stockpiled and preserved for possible reuse on the site.
Landslide-prone soils or unstable rock formations where existing slopes are greater than 25% shall have proposed cut slopes no steeper than three horizontal to one vertical.
Landslide-prone soils where existing slopes are less than 25% shall have proposed cut slopes no steeper than two horizontal to one vertical.
Soils which are not or have a low probability of being landslide-prone shall have a slope no steeper than 1 1/2 horizontal to one vertical.
The material of which the excavation is made is sufficiently stable to sustain a slope steeper than the slope specified above for recognized soil conditions on the site. An acceptable geological report signed and sealed by a soils engineer certifying that the steeper slope will have sufficient stability and that it will not endanger any property or result in property damage and that creation of a hazard will be minimal shall be submitted to and may be approved by the administrator.
A retaining wall or other approved support designed by a professional engineer and approved by the administrator is provided to support the face of the excavation or to provide a fall zone at rock-faced slopes.
The proposed slopes are demonstrated on a site plan which is presented to the Planning Commission and the Township Board of Commissioners to be absolutely necessary to permit the reasonable development of the site, subject to other requirements of this section.
The administrator may require that the excavation be designed so that a line having a slope of 1 1/2 horizontal to one vertical, measured from the bottom of the cut slope, will be entirely inside the property lines of the property on which the excavation is made if conditions exist which, under applicable engineering practice, the excavation may not be deemed to be stable or safe.
The administrator may require an excavation to be made with a cut slope flatter than those specified above if he finds the material in which the excavation is to be made is subject to erosion, is prone to landslides or if other conditions exist which, under applicable engineering practices, make such flatter cut slope necessary for stability and safety.
Excavation adjacent to any footing, foundation or structure shall not extend below the minimum angle of repose or natural slope of the soil under the nearest point of same unless such footing, foundation or structure is first properly underpinned or otherwise protected against settlement. Before commencing any excavation which will affect physically in any way an adjoining property or structures thereon, the permit holder shall notify, in writing, the owners of the adjoining property or structures not less than 30 days before such excavation is to be made, informing them excavation is planned. A copy of such notice(s) shall be submitted to the administrator. Adjoining properties and structures shall be protected as provided in the Building Code and/or as required by the administrator.
The top or bottom edge of final slopes shall normally set back three feet from adjacent property lines or street right-of-way lines in order to permit the normal rounding of the edge without encroaching on the abutting property.
No person, firm or corporation may store, handle or use any explosive in the Township of Robinson without first obtaining a special permit from the administrator. The administrator shall have the authority to impose reasonable regulations and restrictions upon the storage, handling and use of explosives. Any violation of any regulation or requirement imposed by the administrator or imposed under any section of this article shall be grounds for the revocation of any permit theretofore issued.
All blasting which is conducted in the Township shall be in conformity with state requirements and shall be in compliance with the Act of July 10, 1957, P.L. 685, 73 P.S. §§ 164 through 168, as amended, and the Department of Labor and Industry rules and regulations promulgated pursuant to the aforesaid statute.
The administrator shall be notified at least one business day prior to any blasting.
The site shall be prepared by cutting toe benches and other keyways so as to provide a firm base on which to place the fill. No fill or embankment shall be made on landslide-prone soils without adequate engineered preparation and drainage of the area to be filled.
The fill, in the judgment of the administrator, is located so that settlement, sliding or erosion of the fill material will not result in property damage or be a hazard to adjoining property, streets, alleys, buildings, storm drains or drainageways.
Soils capability and geological report, signed and sealed by a professional engineer experienced in erosion control and soils analysis, certifying that he has inspected the site and that the proposed deviation from the slope specified above will not endanger any property or result in property damage and that creation of a hazard will be minimal, shall be submitted to and may be approved by the administrator.
The administrator may require than an embankment or fill be constructed with an exposed surface flatter than two horizontal to one vertical if he finds that under the particular conditions such flatter surface is necessary for stability and safety.
Where fills are located so that earth movement may result in personal injury or damage to adjacent property, streets, alleys or buildings, the bearing value and stability of the material under proposed fills and embankments shall be determined by subsurface investigation performed by a soils engineer or engineering geologist.
The type of fill material available in each stage of the grading operation shall be determined in order to plan proper filling procedures.
Rock may be incorporated in fills and embankments but only in layers 24 inches thick, maximum, as per the latest edition of Pennsylvania Department of Transportation Specifications Publication 408, with voids filled and a blanket of compacted fill separating one layer of rock from the next. Rock fill shall not be placed near the bottom of proposed foundations, building caissons and subsurface utility installations. Suitable earth shall be reserved or provided to cover rock fill under proposed seeded or planted areas.
No unsuitable material, such as coal, honey, red dog, expansive shale and cinders, shall be placed in fill areas.
Wood or other solid waste material shall not be placed in fill areas.
No fill of any kind shall be placed over topsoil, trees, stumps or other material which would create a nuisance, potential fire hazard or sanitation problem which would attract rodents, termites or other pests.
On major fills or embankments, a toe bench shall be constructed below the mantle on bedrock under the toe of fill.
Benching of the existing surface shall be required and indicated on the cross sections.
A porous drain shall be installed on the bottom and back wall of the toe bench together with a drain pipe and suitable discharge pipe to the existing nonerosive surface beyond and below the toe of the proposed fill.
Overfilling of slopes is desirable to permit final shaping of the surface to proposed grade without the addition of loose fill over the surface of the slope, provided that no fill shall be higher than 10 feet vertically before the slope is shaped to proper grade.
At the end of each workday, the horizontal surface of the fill shall be shaped, compacted and rolled to provide for drainage.
All fills shall be compacted to provide stability of materials and to prevent undesirable settlement. The fill (excepting rock) shall be spread in a series of layers, each not exceeding 12 inches in thickness, and shall be compacted by a sheep's-foot roller or other approved method after each layer is spread. Fill shall be placed at the optimum moisture content for the specified degree of compaction. The administrator may require tests or other information if, in his opinion, the conditions or materials are such that additional information is needed. Where fills are to have streets, structures or public utilities placed in or on them, a modified proctor density of 95% shall be achieved (ASTM test designated D1557).
The top or bottom edge of final slopes shall be set back three feet from adjacent property lines or street right-of-way lines in order to permit the normal rounding of the edge without encroaching on the abutting property or street and to allow for location of proper drainage facilities and protective devices.
Guidelines for minimizing erosion and sediment in the Erosion and Sedimentation Control Handbook for Allegheny County, Pennsylvania should be followed. One or a combination of guidelines should be used to minimize hazards, depending on the site conditions and the proposed grading.
The administrator may approve grading plans not meeting the above guidelines if the proposed grading plans are approved by the Allegheny County Soil Conservation Service.
In order to prevent erosion, the permit holder shall be required to provide adequate ground covering of such kind and character as may be approved by the administrator.
For slopes steeper than three horizontal to one vertical, the ground covering shall be an approved variety of erosion-resistant vegetation.
The completion of finish grading should be done during a season of the year when turf or ground cover can best be established.
When grading is proposed for a site abutting a residential land use or zone, a minimum twenty-foot buffer zone shall be maintained and landscaped to minimize the visual impact of the work from adjacent properties. Any relief from this requirement must be obtained from the Board of Commissioners.
If a retaining wall is constructed to satisfy a requirement of this article, a building permit shall be required if the wall height exceeds three feet in height. The requirements for approvals and inspections, as stated herein, shall be complied with.
Retaining walls shall be designed and constructed in accordance with sound engineering practice. The plans submitted for approval shall bear the seal and signature of a professional engineer registered to practice in the Commonwealth of Pennsylvania.
The backfilling of retaining walls and the construction of subterranean drainage facilities shall be done in accordance with sound engineering practice.
In general, where a wall is replacing an exposed slope, the vertical face of the wall shall be at least three feet back from the adjoining property.
This requirement may be waived by the administrator if it can be satisfactorily demonstrated that such an exception is necessary to ensure normal use of the property.
This requirement may also be waived when the proposed retaining wall is a joint venture between adjacent property owners and documents evidencing the same are filed with the application for the permit.
A fence not less than four feet in height of a design approved by the administrator and meeting requirements of the Zoning Ordinance (Chapter 300) shall be placed at the top of all new cuts and fills made when the cuts or fill slopes are steeper than two horizontal to one vertical and also elsewhere where public safety dictates.
No grading work shall be started prior to approval of and implementation of a stormwater management plan in conformance with Chapter 240 of the Code.
Adequate provisions shall be made to prevent surface water from damaging the cut face of excavations and/or the sloping surface of fills and/or adjacent properties. Interception and diversion facilities for stormwater and surface water runoff, both above and below the cut and fill slope areas during and after construction, shall be included in the design. As a minimum, drainage facilities to proposed detention areas shall be designed to accommodate the severest storm that might occur during a twenty-five-year period.
The drainage pattern prior to construction shall be indicated on the plans. Adequate measures shall be taken to prevent any erosion and water runoff damage to adjacent properties during the construction and after completion of construction.
Storm sewers, catch basins, drainage ditches and swales necessary to protect adjacent properties, whether they be permanent or temporary in nature, shall be constructed before any excavation or filling is started. The storm sewers, catch basins, drainage ditches and swales shall be maintained, cleaned, cleared and open during construction. If the above is not complied with, the administrator shall stop all clearing and grading on the site until the necessary drainage facilities are completed or the permit will be revoked and the required financial security forfeited.
New storm sewers and utilities traversing a proposed fill area shall be buried a minimum of three feet from top of pipe to proposed grade. Fill shall be constructed in that area prior to installation of said sewers and utilities. The minimum size storm sewer, exclusive of toe or bench drains, shall be 15 inches in diameter unless a variation in size is approved by the administrator. All storm sewers located under pavement areas shall be reinforced concrete pipe.
Slopes steeper than two horizontal to one vertical and of more than 20 feet in vertical height shall be separated by a level berm of at least 10 feet in width at intervals of no more than 20 feet vertically if the slope is potentially hazardous due to easily erosive material.
On slopes of two horizontal to one vertical or less steep, the ten-foot level berms will not be required unless deemed necessary by the administrator.
Drainage ditches with a grade of 5% or greater shall be paved with concrete, bituminous mixture, brick, half pipe, rubble or other hard nonerodable material.
Drainage ditches with a grade of less than 5% shall be grassed and sloped in such a manner that they can be conveniently cut and maintained.
Drainage structures, storm sewers, detention ponds, sedimentation ponds and appurtenances shall be of proper design and so constructed as to carry surface water and any subsurface water encountered to the nearest practical storm drain or natural watercourse approved by the administrator as a safe place to deposit and receive such waters. Approval by the administrator in no way relieves the owner of his legal responsibilities to adjacent property owners. The owner shall also comply with all state laws and regulations dealing with enclosing or discharging into existing streams, channels or storm sewers.
As a guide for the prevention of damage, grading plans shall follow vegetative control methods and ditch and conduit control methods in the Erosion and Sediment Control Handbook for Allegheny County, Pennsylvania. The administrator may approve methods and materials recommended by governmental agencies, professional engineers and architects when they are more suitable to the site in preventing damage. Private drainage facilities of any nature shall be at least designed to accommodate the largest size storm that would occur on the average of every 10 years. The site design shall provide a safe floodway for flows from storms of greater intensity.
No rock fill shall be placed around or over storm sewers or drainage facilities other than that designed as part of the site drainage facilities.
All grading work within designated or known floodplains shall conform to the requirements and standards of the Floodplain Ordinance (Chapter 140).
Neither the issuance of a permit under the provisions of this article nor the compliance with the provisions hereof or with any condition imposed by the administrator hereunder shall relieve any permit holder from any responsibility for damage to persons or property resulting therefrom, or as otherwise imposed by law, nor impose any liability upon the Township, its employees and its consultants for damages to persons or property.
The permit holder shall be fully responsible for any noncompliance with approved plans. He shall carry the responsibility both for his own employees and for all subcontractors from the first day of grading until released by the Township. The use of qualified personnel experienced and knowledgeable in the practice of excavation and landscape restoration shall be required.
No person shall construct, enlarge, alter, repair or maintain any grading, excavation or fill or cause same to be done contrary to or in violation of any provision of this article.
When notice of any violation of or noncompliance with any provision of this article has been given by the Township, such violation shall be discontinued immediately unless the Township has specifically designated a reasonable time limit for compliance. Any violation which continues after such notice shall be subject to the penalties provided in this article.
Any person who violates any of the provisions of this article may be charged with such violation and, upon conviction thereof, shall be sentenced to pay a fine of not more than $500 for each violation and costs of prosecution or alternatively sentenced to pay a fine of not more than the maximum permitted under Pennsylvania law, as the same may be, from time to time, amended and in effect as of the date of conviction.
Whenever any person violating any of the provisions of this article is notified of such violation by the Township by service, summons or any other manner, each day or portion thereof a violation occurs or continues shall constitute a separate violation.
In addition to the above-stated violations and penalties, the Township may seek remedies and penalties under applicable Pennsylvania statutes or regulations.
In addition to the above penalties, all other actions are hereby reserved by the Township Commissioners, including, without limitation, an action in equity for the proper enforcement of this article. The imposition of a fine or penalty for any violation of or noncompliance with this article shall not excuse the violation or noncompliance or permit it to continue.
The Township Commissioners shall have the right and do hereby reserve such right to compel strict performance with the provisions of this article and/or the conditions, regulations and restrictions of any permit issued hereunder by action at law or in equity. Any excavation, filling and/or grading in noncompliance with this article may be declared by the Township Commissioners to be a public nuisance and abatable as such.
In case any work is performed by any person in violation of any of the provisions of this article, the proper officers of the Township, in addition to other remedies, may institute in the name of the Township an appropriate action or proceeding, whether by legal process or otherwise, to prevent such unlawful work and to restrain or abate such violation.
This article shall be known and may be cited as the "Small Fill Ordinance of the Township of Robinson."
To provide minimum standards to safeguard persons, protect property and promote the general welfare of the Township and its residents by preventing excess erosion, hazardous rock and soil slippage, sediment production and other soil and water management problems by regulating and controlling the design, construction, quality of materials, use, location and maintenance of fills.
The requirements of this article shall only be applicable to fills of 10 cubic yards to 499 cubic yards.
Every landowner or agent proposing to create a fill on any property within the Township of Robinson not less than 10 cubic yards or more than 499 cubic yards, cumulatively, in any twelve-month consecutive period shall be required to obtain a small fill permit. Every applicant for a fill permit shall file a written application for such permit in a form prescribed by the Township's Zoning Administrator. The Township Zoning Administrator may, in his sole discretion, require plans, specifications and/or a soil conservation report as he deems reasonably necessary to evaluate the proposed fill on any site. The Township Zoning Administrator also may, in his sole discretion, require compliance with the application procedure set forth in Article I, Site Grading, as he deems reasonably necessary in view of the amount of the proposed fill at any site.
The Zoning Administrator shall require that a geotechnical engineering report be submitted by the applicant if the site is, has been or is likely to become hazardous to persons or property. The overlay maps such as the Coal Resource Maps prepared by United States Geological Survey, 1975, for the Greater Pittsburgh Region shall be used to locate hazardous areas. The report shall contain a detailed description of the geological conditions of the site and shall include conclusions and recommendations that will demonstrate the relationship of the geological conditions to the proposed development, including hazardous conditions, water resources, mineral resources and environmental impact.
When the requirements of this article for obtaining a permit have been met, the Zoning Administrator shall approve the application and proposed plan and grant a fill permit to the applicant.
The Zoning Administrator may waive the requirement of any or all plans and applications listed in this article if he finds that the information on the application is sufficient to show that the work will conform to the provisions of this article.
Every fill permit shall expire and become null and void if the work authorized by said permit has not been commenced within six months or is not completed within one year from the date of issue, provided that the Zoning Administrator may, if the permit holder presents satisfactory evidence that unusual difficulties have prevented work being started or completed within the specified time limits, grant a reasonable extension of time, and provided, further, that the application for the extension of time is made before the date of expiration of the permit.
If the Zoning Administrator shall determine that the work proposed by the applicant is likely to endanger any property or person or any street or alley or create hazardous conditions, the fill permit shall be denied. In determining whether the proposed work is likely to endanger property or streets or alleys or create hazardous conditions, the Zoning Administrator shall consider, among other relevant factors, the following: possible saturation by rains, earth movements, surface water runoff and subsurface conditions, such as the stratification and faulting of rock, aquifers, mine conditions, springs and the nature and type of soil or rock. Reasons for denial of a grading permit shall be given to the applicant in writing.
Any person who is aggrieved by the application of the provisions of this article may, within 15 days from the date of the denial of the permit or such other adverse determination by the Zoning Administrator, file a written appeal therefrom to the Board of Commissioners. The Board of Commissioners shall grant a hearing upon such an appeal within 45 days after the receipt of the written appeal.
The Code Enforcement Officer for the Township shall make periodic inspections and shall either approve that portion of the work which has been completed or notify the permit holder wherein the same fails to comply with provisions of this article.
If at any stage of the work the Code Enforcement Officer shall determine by inspection that the nature of the fill is such that further work as authorized by an existing permit is likely to endanger any property or streets or alleys or create hazardous conditions, the Code Enforcement Officer may require, as a condition to allowing the work to be done, that such reasonable safety precautions be taken as the Code Enforcement Officer considers acceptable to avoid such likelihood of danger.
Any physical changes from the original plan uncovered on the site during the construction, such as surface water drainage, soil and bedrock dislocations, alteration of groundwater discharge or any other natural or man-made modification which would tend to undermine the basis upon which the permit was issued, must be immediately reported to the Code Enforcement Officer by the permit holder. If the circumstances dictate, the Code Enforcement Officer shall revoke the permit or otherwise modify the conditions upon which the permit was initially issued.
At the time of application, the applicant shall pay an application review fee to cover the Township cost of reviewing application documents.
The Zoning Administrator may refer the application to the Township's Engineer and legal counsel for review. In such event, the applicant shall be required to pay the charges and costs billed by the Township Engineer and Solicitor in accordance with the Township's Fee Schedule then in effect.
Should the transportation of fill to the site require the use or occupancy of Township roads or streets for access by heavy construction equipment or hauling of materials, separate financial security in an amount determined by the Township Engineer shall be required to guarantee the repair of pavements, curbs, streets and sidewalks damaged during a fill operation.
If upon final inspection of the site for which a permit has been issued it is found that the work authorized by the grading permit has been satisfactorily completed in accordance with the requirements of this article, a small fill certificate of completion covering such work and stating that the work is approved shall be issued to the permit holder by the Zoning Officer.
The owner of any property on which a fill has been made shall maintain in good condition and repair the fill permitted and also all retaining walls, cribbing, drainage structures, fences, ground cover and other protective devices as may be a part of the permit requirements.
The fill certificate of completion may be revoked by the Township Board of Commissioners at any time, upon the recommendation of the Code Enforcement Officer, where the conditions of the permit are not being observed; the work covered by the permit has been materially extended or altered without a permit to do so; or conditions exist which prejudice the health, safety and welfare of any persons or property. Before such revocation, the Code Enforcement Officer shall first give written notice to the permit holder and to the owner of the property involved, specifying the defect or unsatisfactory condition involved and advising that unless such defect or unsatisfactory condition is remedied the certificate shall be revoked. If the defect or unsatisfactory condition is remedied within 30 days of notice to the permit holder to correct same, the certificate shall not be revoked.
If the permit holder shall fail to correct such defect or unsatisfactory condition within such thirty-day period, the Township may undertake the necessary work, and the costs thereof shall be borne by the permit holder and collected in any manner authorized by law, including the imposition of a lien against the property.
Whenever the Code Enforcement Officer determines that any existing excavation, embankment or fill has become a hazard, as defined in this article, the owner of the property upon which the grading is located or other person or agent in control of said property, upon receipt of notice in writing from the administrator, shall within the time specified in such notice repair, reconstruct or remove such excavation, embankment or fill so as to eliminate the hazard.
If the permit holder shall fail to correct such hazardous or unsatisfactory condition within the specified time period, the Township may undertake the necessary work, and the costs thereof, plus 20%, shall be borne by the permit holder and collected in any manner authorized by law, including an imposition of a lien against the property.
Any fill not completed within one year from the date of initial fill activity shall constitute a nuisance and a hazard.
The property owner shall restore, repair, reconstruct or remove such fill as directed by the Code Enforcement Officer within 30 days of receipt of said written notice.
Protection of public facilities. All public utilities and roadways shall be protected in the design of and during the grading operation. Construction equipment shall not be operated on public roads without the placement of protective mats. Aggregate driveway or roadway surfaces shall be provided to prevent tracking of dirt and mud onto the public roadways. The Township shall require an overweight hauling bond or road maintenance bond in the event that Township roads are traversed by construction vehicles in the course of the grading activity. The bond shall be calculated at the rate of $12,500 per improved lane mile traversed or $6,000 per unimproved lane mile traversed.
The fill, in the judgment of the Code Enforcement Officer, is located so that settlement, sliding or erosion of the fill material will not result in property damage or be a hazard to adjoining property, streets, alleys, buildings, storm drains or drainageways.
If required, soils capability and geological report, signed and sealed by a professional engineer experienced in erosion control and soils analysis, certifying that he has inspected the site and that the proposed deviation from the slope specified above will not endanger any property or result in property damage and that creation of a hazard will be minimal, shall be submitted to and may be approved by the administrator.
The Code Enforcement Officer may require that an embankment or fill be constructed with an exposed surface flatter than two horizontal to one vertical if he finds that under the particular conditions such flatter surface is necessary for stability and safety.
Where fills are located so that earth movement may result in personal injury or damage to adjacent property, streets, alleys or buildings, the bearing value and stability of the material under proposed fills and embankments shall be determined by subsurface investigation performed by a soils engineer or engineering geologist, if required.
All fills shall be compacted to provide stability of materials and to prevent undesirable settlement. The fill (excepting rock) shall be spread in a series of layers, each not exceeding 12 inches in thickness, and shall be compacted by a sheep's-foot roller or other approved method after each layer is spread. Fill shall be placed at the optimum moisture content for the specified degree of compaction. The Code Enforcement Officer may require tests or other information if, in his opinion, the conditions or materials are such that additional information is needed. Where fills are to have streets, structures or public utilities placed in or on them, a modified proctor density of 95% shall be achieved (ASTM test designated D1557).
Neither the issuance of a permit under the provisions of this article nor the compliance with the provisions hereof or with any condition imposed by the administrator hereunder shall relieve any permit holder from any responsibility for damage to persons or property resulting therefrom or as otherwise imposed by law, nor impose any liability upon the Township, its employees and its consultants for damages to persons or property.
No person shall construct, enlarge, alter, repair or maintain any fill or cause the same to be done contrary to or in violation of any provision of this article.


text:
Истомина А.А., Довженко Н.В., Челомин В.П.
РЕАКЦИЯ АНТИОКСИДАНТНОЙ СИСТЕМЫ НА АНОКСИЮ И РЕОКСИГЕНАЦИЮ У МОРСКОГО ДВУСТВОРЧАТОГО МОЛЛЮСКА SCAPHARCA BROUGHTONI // Вестник Московского государственного областного университета (Электронный журнал). 2011. № 3. с. 12-16.
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Yesterday’s CJEU judgment in the MasterCard case is a major defeat for a company which faces a huge number of private damages actions from retailers. The judgment also examines some interesting legal points, including in particular relating to the use of “counterfactuals” in competition cases.
The background is the Commission’s decision of 19 December 2007 holding that the multi-lateral interchange fees (“MIFs”) set by MasterCard unlawfully infringed Article 101 TFEU. MIFs are fees charged in relation to cross-border bank card payments. Specifically, banks which issue cards to their customers (issuing banks) charge MIFs to banks which provide merchants with services enabling them to accept card payments (acquiring banks). MasterCard, formerly owned by banks participating in the MasterCard payment system, is responsible for setting the MIFs.
The Commission found that the MIFs were passed on in full by the acquiring banks to their merchants. By setting a MIF, MasterCard had essentially set a minimum charge which acquiring banks would charge merchants. The MIFs therefore distorted competition in the market in which acquiring banks compete for merchants’ business.
MasterCard’s application to annul the Commission’s decision was dismissed by the General Court in its judgment of 24 May 2012. Its appeal to the CJEU, and the cross-appeals of several intervening banks, raised four central points.
First, MasterCard argued that it had not been an association of undertakings since 2006, when it became a publicly listed company and underwent changes to its governance and structure. The CJEU rejected this argument. The General Court had rightly considered that there continued to exist a commonality of interest between MasterCard and the participating banks. MasterCard’s further argument that it could not be regarded as an association of undertakings where it was required to pursue the interests of shareholders and not solely the interests of participating banks was also dismissed. Only a body with regulatory powers which had to have regard to public interest criteria in making decisions could, according to established case-law, fall outside Article 101 TFEU in this way.
Secondly, MasterCard argued that the General Court wrongly determined that the MIF was not objectively necessary to the operation of the card payment scheme. MasterCard claimed (among other things) that the General Court had applied the wrong test: the correct test was that a restriction was objectively necessary if it was impossible or difficult to achieve the end in question without it. The CJEU dismissed that argument, confirming that a restriction is only objectively necessary if the beneficial goal it serves is impossible to achieve without it.
The third central point relates to the use of counterfactuals – in other words, hypothetical scenarios showing what would or could have happened if it were not for the anti-competitive conduct. The CJEU confirms that, when deciding whether a restriction is objectively necessary, a counterfactual simply has to be “realistic” and “economically viable” (paragraph 111).
However, when deciding whether there is a restriction of competition, different considerations arise. The CJEU emphasises that it is important, when addressing that issue, to look at the “actual context” in which competition would apply in the absence of the alleged restriction (paragraph 164). It is not entirely clear what degree of plausibility should be required of a counterfactual for the purposes of assessing whether there is a restriction of competition, but it is clear that it is a higher threshold than that which applies in the context of objective necessity.
Fourthly, Lloyds Banking Group argued in its cross-appeal that the General Court had erred in determining that no exemption under Article 101(3) applied. In particular, it considered only benefits to merchants, and not the benefits of the MasterCard payment system in general. The CJEU again rejected this argument. It was the advantages of the MIF itself which had to be weighed, not those resulting from the MasterCard payment scheme in general. Moreover, the General Court had considered benefits accruing to cardholders and correctly concluded that they were not of such a character as to outweigh the competitive disadvantages in the separate market for acquiring banks.
The determination of the appeal will now allow private actions against MasterCard to proceed in earnest. Time began to run yesterday for follow-on claims in the CAT, and many retailers are already pursuing MasterCard in the High Court. The High Court claims tend to take the Commission’s decision as a starting point, and then apply its reasoning by analogy to cover not only the kinds of cross-border payments in issue in the decision, but also all domestic payments. The only real crumb of comfort for MasterCard may be the thought that, unusually in this type of case, retailers are also seeking to rely on the reasoning in the decision to sue its main competitor, Visa.

matches: CJEU CJEU CJEU CJEU CJEU CJEU