[HISTORY: Adopted by the Board of Commissioners of the Township
of Lower Allen as indicated in article histories. Amendments noted
where applicable.]
[Adopted 2-23-2009 by Ord. No. 2009-04]
This article shall be known and may be cited as the "Lower Allen
Township Outdoor Hydronic Heater Ordinance of 2009."
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
The Board of Commissioners of Lower Allen Township, under, and
by virtue of and pursuant to the authority granted by the Air Pollution
Control Act, 35 P.S. § 4012 and the First Class Township
Code Section 1502(29), 53 P.S. § 56579.14, Smoke regulation,
do hereby enact and ordain this article.
Whereas the Board of Commissioners of Lower Allen Township has
determined that air pollution from outdoor hydronic heaters may be
detrimental to the health, comfort, living conditions, welfare, and
safety of the citizens of Lower Allen Township, it is hereby declared
to be the policy of Lower Allen Township to safeguard the citizens
of Lower Allen Township from such air pollution.
The following words, terms, and phrases, when used in this article,
unless the context clearly indicates otherwise, shall have the following
meanings ascribed to them:
Lower Allen Township Board of Commissioners.
Natural wood that has been seasoned to reduce its water content
and provide more efficient combustion, that has not been:
Coated with paint, stain, oil, resin or any other preservative,
fire retardant or decorative materials;
Impregnated with preservatives or fire retardants;
Exposed to salt water; and
Manufactured with the use of adhesives, polymers or resins,
such as strand, particle and veneer lumber and recycled lumber.
Person designated by the municipality to be responsible for
the administration and enforcement of this article.
A fuel-burning device designed:
To burn clean wood or other fuels specifically tested and listed
for use by the manufacturer;
By the manufacturer specifically for outdoor installation or
installation in structures not normally intended for habitation by
humans or domestic animals (e.g., garages); and
To heat building space and/or water via distribution, typically
through pipes, of a fluid heated in the device, typically water or
a water/antifreeze mixture.
Outdoor hydronic heaters are also known as "outdoor wood-fired
boilers," "outdoor wood-fired furnaces," and "outdoor wood-burning
appliances."
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.
The time period beginning with flame stability after first
charge of wood fuel and is no longer than a two-hour duration. This
definition only includes initial startup where no previous coal bed
exists, and does not include refueling.
After enactment, an outdoor hydronic heater may be installed
or used in Lower Allen Township only in accordance with all of the
following provisions:
A.
The outdoor hydronic heater shall be installed, operated and maintained
in accordance with the manufacturer's instructions.
B.
The outdoor hydronic heater shall not be used to burn any material
that does not meet the definition of clean wood, with the following
exceptions:
C.
The outdoor hydronic heater shall have been tested, listed and tagged
as being compliant with the United States Environmental Protection
Agency (EPA) voluntary program to reduce outdoor hydronic heater emissions
as a Phase II qualified device (white tag). Phase II qualified devices
(white tag) shall not exceed the EPA limit of 0.32 pound of fine particulate
emissions per million BTU heat output.
[Amended 6-29-2009 by Ord. No. 2009-10]
D.
The outdoor hydronic heater shall be located at least 100 feet from
a property line or 120 feet from the nearest occupied building, whichever
is more stringent.
[Amended 6-29-2009 by Ord. No. 2009-10]
E.
The owner or operator of the outdoor hydronic heater shall obtain
a permit from the Department of Community Development prior to installation
of the device. The permit applicant shall demonstrate compliance with
applicable building and zoning regulations contained in the Code of
the Township of Lower Allen, in addition to compliance with this article.
F.
No person shall cause or allow the emission of a smoke plume from
any outdoor hydronic heater to exceed an average opacity of 20% for
six consecutive minutes in any one-hour period, except during the
startup period, when visible emissions may not exceed opacity of 40%
for 20 consecutive minutes.
A.
The Lower Allen Township Code Enforcement Officer shall have the
power and duty to enforce the provisions of this article.
B.
Lower Allen Township may issue such orders as are necessary to aid
in the enforcement of the provisions of this article. These orders
shall include, but shall not be limited to: orders requiring persons
to cease unlawful use of outdoor wood-fired boilers which are in violation
of any provision of this article; orders to take corrective action
or to abate a public nuisance; or orders requiring production of information.
Such an order may be issued if Lower Allen Township finds that any
person is in violation of any provision of this article.
C.
The Lower Allen Township may, in its order, require compliance with
this article.
D.
An order issued under this section shall take effect upon notice,
unless the order specifies otherwise. An appeal to the Lower Allen
Township Regional Code Appeals of the Lower Allen Township order shall
not act as a supersedeas; provided, however, that, upon application
and for cause shown, the Lower Allen Township Regional Code Appeals
may issue such a supersedeas under rules established by the Lower
Allen Township Regional Code Appeals.
E.
The authority of Lower Allen Township to issue an order under this
section is in addition to any remedy or penalty that may be imposed
pursuant to this article. The failure to comply with any such order
is hereby declared to be a public nuisance.
A.
Whenever the Code Enforcement Official finds that illegal operation of an outdoor wood-fired boiler is occurring in Lower Allen Township, in contravention of the requirements of § 117-6 above, the Code Enforcement Official may order the owner or operator to take corrective action in a manner satisfactory to Lower Allen Township, or the Code Enforcement Official may order the owner or operator to allow access to the land by the Code Enforcement Official or a third party to take such action.
B.
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, Lower Allen Township 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 § 117-8B of this article.
A.
Criminal penalties. Any person who violates any provision of this
article or any order of the Township issued pursuant to this article
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 Township 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 article, and the
Township 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 this Township. There is no
accelerated rehabilitative disposition authorized for a summary offense.
B.
Civil penalties.
(1)
In addition to proceeding under any other remedy available at law
or in equity for a violation of a provision of this article or any
order issued pursuant to this article, the Township 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 $25,000 per day for each violation. In determining the
amount of the penalty, the Township shall consider the willfulness
of the violation; damage to air, soil, water, or other natural resources
of the Township or their uses; financial benefit to the person in
consequence of the violation; deterrence of future violations; cost
to the Township; 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.
(2)
When the Township 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
Township 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 Township 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 Township.
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 Township 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 Township shall conduct a hearing to
consider the appellant's alleged inability to pay within 30 days of
the date of the appeal. The Township may waive the requirement to
prepay the civil penalty or to post an appeal bond if the appellant
demonstrates and the Township finds that the appellant is financially
unable to pay. The Township 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 Township
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 Township. 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 Township, 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 article or to fail
to comply with any order or other requirement of the Township; or
to cause a public nuisance; or to hinder, obstruct, prevent, or interfere
with the Township or its personnel in their performance of any duty
hereunder, including denying the Code Enforcement Official access
to the source or facility.
A violation of this article or of any order issued by the Township under this article shall constitute a public nuisance. The Township 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 Township may recover the expenses of abatement following the process for assessment and collection of a civil penalty contained in § 117-8B. Whenever the nuisance is maintained or continued contrary to this article or any order issued pursuant to this article, the nuisance may be abatable in the manner provided by this article. Any person who causes the public nuisance shall be liable for the cost of abatement.
The provisions of this article, as far as they are the same
as those of ordinances in force immediately prior to the enactment
of this article, are intended as a continuation of such ordinances
and not as new enactments. The provisions of this article shall not
affect any such suit or prosecution pending or to be instituted to
enforce any right or penalty or to punish any offense under the authority
of any ordinance repealed by this article.
