[HISTORY: Adopted by the Borough Council of the Borough of Waynesboro 10-19-1994 by Ord. No. 956. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Borough of Waynesboro Air Pollution Control Ordinance of 1994."
The Borough Council of the Borough of Waynesboro, under, and by virtue of and pursuant to the authority granted by the Borough Code do hereby enact and ordain this chapter.
Whereas the Borough Council of the Borough of Waynesboro 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 Waynesboro, it is hereby declared to be the policy of the Borough of Waynesboro to safeguard the citizens of the Borough of Waynesboro 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:
- AIR CURTAIN DESTRUCTOR
- A mechanical device which forcefully projects a curtain of air across a pit in which open burning is being conducted so that combustion efficiency is increased and smoke and other particulate matter are contained.
- 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.
- CLEARING AND GRUBBING WASTES
- Trees, shrubs, and other native vegetation which are cleared from land during or prior to the process of construction. The term does not include demolition wastes and dirt-laden roots.
- The process by which organic solid waste is biologically decomposed under controlled anaerobic or aerobic conditions to yield a humus-like product.
- Borough Council.
- DOMESTIC REFUSE
- Waste which is generated from the normal occupancy of a structure occupied solely as a dwelling by two families or less. This does not include appliances, bedding, carpets, demolition waste (shingles, siding, insulation, etc.), furniture, household hazardous waste, source-separated recyclable materials, or tires.
- A duct, pipe, stack, chimney, or conduit permitting air contaminants to be emitted into the outdoor atmosphere. This flue is of a nature which permits the performance of the test methods and procedures specified in 25 Pa. Code Chapter 139 (relating to sampling and testing).
- Any solid waste.
- HAZARDOUS WASTE
- The term includes garbage, refuse, sludge from an industrial or other wastewater treatment plant, sludge from a water supply treatment plant or air pollution control facility, and other discarded material including solid, liquid, semisolid, or contained gaseous material resulting from municipal, commercial, industrial, institutional, mining, or agricultural operations, and from community activities, or a combination of these factors, which, because of its quantity, concentration, or physical, chemical, or infectious characteristics, may:
- HOUSEHOLD HAZARDOUS WASTE
- A waste that would be considered hazardous under the Solid Waste Management Act (35 P.S. §§ 6018.101 - 6018.1003) (SWMA), but for the fact that it is produced in quantities smaller than those regulated as hazardous waste under the SWMA and is generated by persons not otherwise covered as hazardous waste generators by the SWMA.
- A city, incorporated town, township, borough, county, municipal authority, or other public body created under state law having jurisdiction over the disposal of sewage, industrial wastes, or other wastes.
- 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.
- Any solid waste.
- SOLID WASTE
- Waste, including, but not limited to, municipal, residual, or hazardous wastes, including solid, liquid, semisolid, or contained gaseous materials.
- SOURCE-SEPARATED RECYCLABLE MATERIALS
- Materials that are separated from municipal waste at the point of origin for the purpose of recycling. The term is limited to clear glass, colored glass, aluminum, steel and bimetallic cans, high-grade office paper, newsprint, corrugated paper, plastics, and other marketable grades of paper.
- A material whose original purpose has been completed and which is directed to a disposal or processing facility or is otherwise disposed. The term does not include source-separated recyclable materials.
- YARD WASTE
- Leaves, grass clippings, garden residue, tree trimmings, chipped shrubbery, and other vegetative material.
Editor's Note: Attachment A is on file in the Borough offices.
After November 19, 1997 (the effective date), no person shall cause, suffer, or permit the open burning of any material with the exception of the following:
A fire set in conjunction with the production of agricultural commodities in their unmanufactured state on the premises of the farm operations.
A fire set solely for cooking food.
A fire set solely for recreational or ceremonial purposes, and in accordance with the Borough Fire Code as amended from time to time.
A fire set to prevent or abate a fire hazard, when approved by the Department of Environmental Protection and set by or under the supervision of the Fire Chief or his designee.
Any fire set for the purpose of instructing personnel in fire fighting after approval by the Department of Environmental Protection.
A fire set for the prevention and control of disease or pests after approval of the Department of Environmental Protection.
Certain fires approved by the Mayor or Fire Chief.
Fires necessary in the conduct of Borough of Waynesboro activities in response to emergency management activities pursuant to the Borough's Emergency Operations Plan, provided said fires are approved by the Mayor (and in his absence the President of Borough Council; or in the President's absence, the Vice President of Borough Council).
Fires necessary to save life or property from imminent peril from natural or man-made disaster as approved by the Fire Chief (or Deputy or Assistant Fire Chief in the absence of the Chief).
A fire used for the purpose of generating heat for heating of a building.
Other exceptions as may be approved by Borough Council from time to time by resolution.
The Borough of Waynesboro's Fire Chief, Deputy Fire Chief or Assistant Fire Chief shall have the power and duty to enforce the provisions of this chapter, as well as others appointed by Borough Council from time to time.
The Borough of Waynesboro 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 modifying, suspending, terminating, or revoking any municipal permits; 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 Waynesboro 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 Waynesboro finds that the permittee or any person is in violation of any provision of this chapter or order of the Borough of Waynesboro.
The Borough of Waynesboro may, in its 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. An appeal to the Building Code Board of Appeals of the Borough of Waynesboro order shall not act as a supersedes, provided, however, that, upon application and for cause shown, the Building Code Board of Appeals may issue such a supersedes under rules established by the Building Code Board of Appeals.
The authority of the Borough of Waynesboro to issue an order under this section is in addition to any remedy or penalty which 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 Fire Chief finds that open burning is occurring in the Borough of Waynesboro, other than those exceptions noted in § 109-5 above, the Fire Chief may order the owner or operator to take corrective action in a manner satisfactory to the Borough of Waynesboro, or the Fire Chief may order the owner or operator to allow access to the land by the Fire Chief 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 Waynesboro 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 § 109-9 of this chapter.
Any person who violates any provision of this chapter, any order of the Borough of Waynesboro, or any condition or term of any municipal permit 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 $300 for each separate offense and/or may be sentenced to imprisonment not to exceed 90 days for each separate offense. The Borough of Waynesboro's Police Department is authorized to issue or file citations for summary violations under this chapter, and the Borough of Waynesboro's Solicitor is hereby authorized to prosecute these offenses. For purposes of this section, a summary offense may be prosecuted before any Magisterial District Judge in the Borough of Waynesboro.
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 or municipal permit issued pursuant to this chapter, the Borough of Waynesboro may assess a civil penalty for the violation. The penalty may be assessed whether or not the violation was willful. The civil penalty so assessed shall not exceed $10,000 per day for each violation. In determining the amount of the penalty, the Borough of Waynesboro shall consider the willfulness of the violation; damage to air, soil, water, or other natural resources of the Borough of Waynesboro or their uses; financial benefit to the person in consequence of the violation; deterrence of future violations; cost to the Borough of Waynesboro; 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 or facility; and other relevant factors.
When the Borough of Waynesboro 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 Building Code Board of Appeals 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 Building Code Board of Appeals 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 Waynesboro. 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 Building Code Board of Appeals shall, within 30 days, remit the appropriate amount to the person with any interest accumulated by the escrow deposit. Failure 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 Building Code Board of Appeals shall conduct a hearing to consider the appellant's alleged inability to pay within 30 days of the date of the appeal. The Building Code Board of Appeals may waive the requirement to prepay the civil penalty or to post an appeal bond if the appellant demonstrates and the Building Code Board of Appeals finds that the appellant is financially unable to pay. The Building Code Board of Appeals 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 Waynesboro and shall be collectible in any manner provided by law for the collection of debts, 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.) 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 Waynesboro. 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 where the property is located. The prothonotary shall promptly enter upon the civil judgment or order docket, at no cost to the Borough of Waynesboro, 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, municipal permit, or other requirement of the Borough of Waynesboro; 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 Waynesboro or its personnel in their performance of any duty hereunder, including denying the Borough of Waynesboro 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) in regard to papers required to be submitted under this chapter. The owner or operator of an open burning source shall not allow pollution of the air, water, or other natural resources of the Borough of Waynesboro to result from the source.
A violation of this chapter or of any order or municipal permit issued by the Borough of Waynesboro under this chapter shall constitute a public nuisance. The Borough of Waynesboro 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 Waynesboro may recover the expenses of abatement following the process for assessment and collection of a civil penalty contained in § 109-9. Whenever the nuisance is maintained or continued contrary to this chapter or any order or municipal permit, 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.