[HISTORY: Adopted by the Council of the Borough of Punxsutawney 1-8-2001 by Ord. No. 1015. Amendments noted where applicable.]
Code program — See Ch. 17.
Fire Department — See Ch. 30.
Brush, grass and weeds — See Ch. 85.
Garbage, rubbish and refuse — See Ch. 139.
Editor's Note: This ordinance also repealed former Ch. 97, Open Burning, adopted as Ch. 11, Art. III of the 1974 Code, as amended.
This chapter shall be known and may be cited as the "Borough of Punxsutawney Air Pollution Control Ordinance." Ordinance Chapter 97, §§ 97-1 through 97-7, as amended, as previously enacted is hereby repealed. All other ordinances or parts thereof which are in conflict with this chapter are hereby repealed.
The Borough Council of the Borough of Punxsutawney, under and by virtue of and pursuant to the authority granted by the Borough Code (53 P.S. § 45101 et seq.), as amended, does hereby enact and ordain this chapter.
Whereas the Borough Council of the Borough of Punxsutawney has determined that air pollution from open burning may be detrimental to the health, comfort, living conditions, welfare and safety of the citizens of the Borough of Punxsutawney, it is hereby declared to be the policy of the Borough of Punxsutawney to safeguard the citizens of the Borough of Punxsutawney from such air pollution.
The following words, terms and phrases, when used in this chapter, unless the context clearly indicates otherwise, shall have the following meanings ascribed to them:
- The act of consuming by fire; to flame, char, scorch or blaze. As used in this chapter, "smoldering" shall have the same meaning as burning, and any smoldering shall be deemed a burning.
- The Borough Council of the Borough of Punxsutawney.
- DOMESTIC REFUSE
- Waste which is generated from the normal occupancy of a structure occupied solely as a dwelling. The term includes appliances, carpets, demolition waste (insulation, shingles, siding, etc.), furniture, mattresses or box springs, paint, putrescible waste, solvents, tires or treated wood.
- The Borough of Punxsutawney, which has been created under state law and has jurisdiction over the subject matter herein.
- OPEN BURNING
- A fire, the air contaminants from which are emitted directly into the outdoor atmosphere and not directed thereto through a flue.
- Any individual, public or private corporation, for profit or not for profit, association, partnership, firm, trust, estate, department, board, bureau or agency of the commonwealth or the federal government, political subdivision, municipality, district, authority, or any other legal entity whatsoever, which is recognized by law as the subject of rights and duties.
- YARD WASTE
- Leaves, grass clippings, garden residue, tree trimmings, chipped shrubbery and any other vegetative material.
After this chapter is enacted, no person may engage in the open burning of any material, including, but not limited to, domestic refuse and yard waste, with the exception of the following:
A fire set to prevent or abate a fire hazard, when approved by the Department of Environmental Resources' Regional Air Quality Program Office and set by or under the supervision of a public officer.
Any fire set for the purpose of instructing personnel in fire fighting, when approved by the Department of Environmental Resources' Regional Air Quality Program Office.
A fire set for the prevention and control of disease or pests, when approved by the Department of Environmental Resources' Regional Air Quality Program Office.
A fire set solely for recreational or ceremonial purposes when approved by the Department of Environmental Resources' Regional Air Quality Program Office and set by or under the supervision of a public officer.
A fire set solely for cooking food.
For those types of fires enumerated in Subsection A(1) through (4) of this section, in addition to the approval of the Department of Environmental Resources' Regional Air Quality Program Office, any person engaging in open burning must also receive an open burning permit for such open burning from the Punxsutawney Code Enforcement Officer. The fee for such an open burning permit shall be established from time to time by resolution of the Punxsutawney Borough Council.
The Borough of Punxsutawney Code Enforcement Officer shall have the power and duty to enforce the provisions of this chapter.
The Borough of Punxsutawney may issue such orders as are necessary to aid in the enforcement of the provisions of this chapter. These orders shall include, but shall not be limited to: orders requiring persons to cease unlawful open burning which, in the course of its occurrence, is in violation of any provision of this chapter; orders to take corrective action or to abate a public nuisance; orders requiring the testing, sampling or monitoring of any open burning; or orders requiring production of information. Such an order may be issued if the Borough of Punxsutawney finds that any condition existing in or on the facility or source involved is causing or contributing to open burning or if the Borough of Punxsutawney finds that any person or entity is in violation of any provision of this chapter.
The Borough of Punxsutawney may, in any such order, require compliance with such conditions as are necessary to prevent or abate open burning or effect the purposes of this chapter.
An order issued under this section shall take effect upon notice, unless the order specifies otherwise.
The authority of the Borough of Punxsutawney to issue an order under this section is in addition to any remedy or penalty which otherwise may be imposed pursuant to this chapter. The failure to comply with any such order is hereby declared to be a public nuisance.
Whenever the Code Enforcement Officer finds that open burning is occurring in the Borough of Punxsutawney, other than those exceptions noted in § 97-5, above, the Code Enforcement Officer may order the owner or operator to take corrective action in a manner satisfactory to the Borough of Punxsutawney, or the Code Enforcement Officer may order the owner or operator to allow access to the land by the Code Enforcement Officer or a third party to take such action.
For purposes of collecting or recovering the costs involved in taking corrective action or pursuing a cost recovery action pursuant to an order or recovering the cost of litigation, oversight, monitoring, sampling, testing and investigation related to a corrective action, the Borough of Punxsutawney may collect the amount in the same manner as civil penalties are assessed and collected following the process for assessment and collection of a civil penalty contained in § 97-9 of this chapter.
Any person who violates any provision of this chapter or any order of the Borough of Punxsutawney issued pursuant to this chapter commits a summary offense and shall, upon conviction, be sentenced to pay a fine of not less than $100 nor more than $2,500 for each separate offense and, in default of the payment of such fine, may be sentenced to imprisonment for 90 days for each separate offense. Employees of the Borough of Punxsutawney authorized to conduct inspections or investigations are hereby declared to be law enforcement officers authorized to issue or file citations for summary violations under this chapter, and the Solicitor for the Borough of Punxsutawney is hereby authorized to prosecute these offenses. A summary offense may be prosecuted before the appropriate District Justice. There is no accelerated rehabilitative disposition authorized for a summary offense.
In addition to proceeding under any other remedy available at law or in equity for a violation of a provision of this chapter or any order issued pursuant to this chapter, the Borough of Punxsutawney may assess a civil penalty for the violation. The civil penalty so assessed shall not exceed $25,000 per day for each violation. In determining the amount of the penalty, the Borough of Punxsutawney shall consider the willfulness of the violation; damage to air, soil, water or other natural resources of the Borough of Punxsutawney or their uses; financial benefit to the person in consequence of the violation; deterrence of future violations; cost to the Borough of Punxsutawney; the size of the source or facility; the compliance history of the source; the severity and duration of the violation; degree of cooperation in resolving the violation; the speed with which compliance is ultimately achieved; whether the violation was voluntarily reported; other factors unique to the owners or operators of the source of facility; and other relevant factors.
When the Borough of Punxsutawney proposes to assess a civil penalty, it shall inform the person of the proposed amount of the penalty. The person charged with the penalty shall then have 30 days to pay the proposed penalty in full; or if the person wishes to contest the amount of the penalty or the fact of the violation to the extent not already established, the person shall forward the proposed amount of the penalty to the Punxsutawney Borough Council within the thirty-day period for placement in an escrow account with the State Treasurer or any commonwealth bank or post an appeal bond to the Punxsutawney Borough Council within 30 days in the amount of the proposed penalty, provided that such bond is executed by a surety licensed to do business in the commonwealth and is satisfactory to the Borough of Punxsutawney. If, through administrative or final judicial review of the proposed penalty, it is determined that no violation occurred or that the amount of the penalty shall be reduced, the Punxsutawney Borough Council shall, within 30 days, remit the appropriate amount to the person with any interest accumulated by the escrow deposit. Failure by the appellant to forward the money or the appeal bond at the time of the appeal shall result in a waiver of all legal rights to contest the violation or the amount of the civil penalty unless the appellant alleges financial inability to prepay the penalty or to post the appeal bond. The Punxsutawney Borough Council shall conduct a hearing to consider the appellant's alleged inability to pay within 30 days of the date of the appeal. The Punxsutawney Borough Council may waive the requirement to prepay the civil penalty or to post an appeal bond if the appellant demonstrates and the Punxsutawney Borough Council finds that the appellant is financially unable to pay. The Punxsutawney Borough Council shall issue an order within 30 days of the date of the hearing to consider the appellant's alleged inability to pay. The amount assessed after administrative hearing or after waiver of administrative hearing shall be payable to the Borough of Punxsutawney and shall be collectible in any manner provided by law for the collection of debts, including the collection of interest on the penalty amount of the debt, and also including the collection of interest on the penalty amount computed in accordance with Section 6621(a)(2) of the Internal Revenue Code of 1986 (Public Law 99 - 514, 26 U.S.C. 1, et seq., as amended) from the date of assessment of the penalty. If any person liable to pay any such penalty neglects or refuses to pay the same after demand, the amount, together with interest and any costs that may accrue, shall constitute a debt of such person, as may be appropriate, to the Borough of Punxsutawney. The debt shall constitute a lien on all property owned by said person when a notice of lien incorporating a description of the property of the person subject to the action is duly filed with the Prothonotary of the Court of Common Pleas of Jefferson County. The Prothonotary shall promptly enter upon the civil judgment or order docket, at no cost to the Borough of Punxsutawney, the name and address of the person, as may be appropriate, and the amount of the lien as set forth in the notice of lien. Upon entry by the Prothonotary, the lien shall attach to the revenues and all real and personal property of the person, whether or not the person is solvent. The notice of lien, filed pursuant to this section, which affects the property of the person, shall create a lien with priority over all subsequent claims or liens which are filed against the person, but it shall not affect any valid lien, right or interest in the property filed in accordance with established procedure prior to the filing of a notice of lien under this section.
It shall be unlawful to fail to comply with or to cause or assist in the violation of any of the provisions of this chapter or to fail to comply with any order or other requirement of the Borough of Punxsutawney; or to cause a public nuisance; or to cause air, soil or water pollution resulting from an open burning incident; or to hinder, obstruct, prevent or interfere with the Borough of Punxsutawney or its personnel in their performance of any duty hereunder, including denying any employee of the Borough of Punxsutawney access to the source or facility; or to violate the provisions of 18 Pa.C.S.A §§ 4903 (relating to false swearing) or 4904 (relating to unsworn falsification to authorities), as amended, in regard to papers required to be submitted under this chapter.
A violation of this chapter or of any order issued by the Borough of Punxsutawney under this chapter shall constitute a public nuisance. The Borough of Punxsutawney shall have the authority to order any person causing a public nuisance to abate the public nuisance. In addition, when abating a public nuisance, the Borough of Punxsutawney may recover the expenses of abatement following the process for assessment and collection of a civil penalty contained in § 97-9. Whenever the nuisance is maintained or continued contrary to this chapter or any order issued pursuant to this chapter, the nuisance may be abatable in the manner provided by this chapter. Any person who causes the public nuisance shall be liable for the cost of abatement.
The provisions of this chapter are severable, and if any section, clause, sentence, part or provision thereof shall be held to be illegal, invalid or unconstitutional by any court of competent jurisdiction, such decision of the court shall not affect or impair the remaining sections, clauses, sentences, parts or provisions of this chapter. It is hereby declared to be the intent of the Punxsutawney Borough Council that this chapter would have been adopted if such illegal, invalid or unconstitutional section, clause, sentence, part or provision had not been included herein.
This chapter shall become effective upon enactment.