[HISTORY: Adopted by the Board of Commissioners of Upper
Moreland Township 12-6-1999 by Ord. No. 1402 (Title 5, Ch. 12, of
the 1977 Code). Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Township
of Upper Moreland Dust Control Ordinance."
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:
A substance used to abate the dispersion of particulate matter
into the air. Dust palliatives for use on roads and other surfaces
may be water or other substances approved by Pennsylvania Department
of Transportation (PennDOT) and the Department of Environmental Protection.
An air contaminant consisting of particulate matter of the
outdoor atmosphere not emitted through a flue, including, but not
limited to, dust or particulate matter resulting from industrial process
losses, stockpile losses, reentrained dust, and dust or airborne dirt
from construction or demolition activities.
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.
This includes public and private roadways, paved and unpaved
parking areas, racetracks of any kind, and land used for recreational
purposes.
A petroleum-based or synthetic oil which is used in an internal
combustion engine as an engine lubricant or as a product for lubricating
motor vehicle transmissions, gears or axles, which, through use, storage
or handling, has become unsuitable for its original purpose due to
the presence of chemical or physical impurities or loss of original
properties.
Oil refined from crude oil or synthetically produced, used
and, as a result of the use, contaminated by physical or chemical
impurities. The term includes used oil or oil whose original purpose
has been completed and which is directed to a disposal or processing
facility or is otherwise disposed of.
A.
After the effective date hereof, a person responsible for any of
the following activities or sources of fugitive dust shall take all
reasonable actions to prevent such matter from becoming airborne during
such activities:
(1)
Construction or demolition of buildings or structures.
(2)
Construction, grading, paving, and maintenance of roads and streets.
(3)
Use of roads and streets. Emissions from material in or on trucks,
railroad cars, and other vehicular equipment are not considered as
emissions from use of roads and streets.
(4)
Clearing of land.
(5)
Stockpiling of materials.
B.
A person may not permit fugitive dust matter to be emitted into the outdoor atmosphere from a source listed in Subsection A if the emissions are visible at the point emissions pass outside the person's property or adversely affect any other persons, their property, or their reasonable enjoyment of their property.
C.
A person shall not hinder, obstruct, prevent, or interfere with the
Department of Code Enforcement of the Township or its personnel in
their performance of any duty under this chapter, including denying
the Code Enforcement Officer or designee access to the source of any
fugitive dust or facility.
A person responsible for any source of potential fugitive dust set forth in § 125-4A shall take all reasonable actions to prevent particulate matter from becoming airborne. These actions include, but are not limited to, the following:
A.
Use, where possible, of water or approved dust palliatives for control
of dust in the demolition of buildings or structures, construction
operations, the grading or use of roads or streets, or the clearing
of land. The dust palliative and method of application used must be
that which is approved by PennDOT and by the Department of Environmental
Protection. The use of waste oil or used oil as a dust palliative
is prohibited.
B.
Application of asphalt, water or approved dust palliatives on dirt
roads, material stockpiles, and other surfaces which may give rise
to airborne dusts. The dust palliative and the method of application
used must be one which is approved by PennDOT and by the Department
of Environmental Protection. The use of waste oil or used oil as a
dust palliative is prohibited.
C.
Paving and maintenance of roadways.
D.
Immediate removal of earth or other material from paved streets onto
which earth or other material has been transported by trucking or
earthmoving equipment, erosion by water, or other means.
The requirements of this chapter do not apply to fugitive dust
emissions arising from the growth, harvesting, or production of agricultural
commodities in their unprocessed state on the premises of the farm
operation.
A.
The Department of Code Enforcement of the Township shall have the
power and duty to enforce the provisions of this chapter.
B.
The Department of Code Enforcement of the Township 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 activities or cease
operation of a fugitive dust source which, in the course of its operation,
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 fugitive dust source; or orders requiring
production information. Such an order may be issued if the Department
of Code Enforcement of the Township finds that any condition existing
in or on the facility or source involved is creating, causing or contributing
to the emission of fugitive dust or if the Department of Code Enforcement
of the Township finds that any person is in violation of any provision
this chapter.
C.
The Department of Code Enforcement of the Township may, in its order,
require compliance with such conditions as are necessary to prevent
or abate the emission of fugitive dust or carry out the purposes of
this chapter.
D.
An order issued under this section shall take effect upon notice, unless the order specifies otherwise. An appeal of the order to the Board of Commissioners pursuant to § 125-9 shall not act as a supersedeas of the order; provided, however, that, upon application and for cause shown, the Board of Commissioners may grant such a supersedeas.
A.
Whenever the Department of Code Enforcement finds that fugitive dust is being emitted as a result of any activity described in § 125-3, the Department of Code Enforcement may order the owner or operator of the premises to take corrective action in accordance with § 125-6 of this chapter in a manner satisfactory to the Department of Code Enforcement or it may order the owner/operator to allow access to the land by Department of Code Enforcement personnel or a third party to take such corrective 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,
the Township of Upper Moreland may collect costs of such corrective
action from the owner or operator of the premises from which such
fugitive dust was emitted in accordance with the provisions of this
chapter.
The violation of any provision of this chapter or any order
of the Department of Code Enforcement of the Township issued pursuant
to this chapter constitutes a summary offense and any person committing
such violation shall, upon conviction, be sentenced to pay a fine
of not less than $100 and not more than $2,500 and, in default of
the payment of such fine, may be sentenced to imprisonment for 90
days for each separate offense. Each violation of any provision of
this chapter or order or each day that such violation shall continue
shall constitute a separate offense. The Director of the Department
of Code Enforcement and his designees are hereby declared to be law
enforcement officers authorized to issue or file citations for summary
violations under this chapter.
A.
In addition to proceeding under § 125-8 for a criminal penalty, the Department of Code Enforcement of the Township on behalf of the Township may commence an action in equity to enjoin a continuing violation of a provision of this chapter or any order issued pursuant to this chapter. In addition, the Department of Code Enforcement 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 Department of Code Enforcement 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.
B.
When the Department of Code Enforcement of 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 Treasurer within the
thirty-day period for placement in an interest-bearing escrow account
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 Treasurer
shall, within 30 days after such decision becomes final, remit the
amount to the person with any interest accumulated by the escrow account.
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 Board of Commissioners shall conduct a hearing to consider
the appellant's alleged inability to pay within 30 days of the
date of the appeal. The Board of Commissioners may waive the requirement
to prepay the civil penalty or to post an appeal bond if the appellant
demonstrates that the appellant is financially unable to pay.
C.
The Board of Commissioners or a three-member panel of the Commissioners (appointed by the President of the Board of Commissioners) shall hold hearings on any appeal from an order of the Department of Code Enforcement issued pursuant to § 125-5 hereof or from the assessment of any civil penalty under § 125-9A hereof. The provisions of the Local Agency Law, 2 Pa.C.S.A. §§ 551 through 555, shall apply to the proceedings before the Board of Commissioners. The Board of Commissioners shall issue a decision and order within 45 days of the conclusion of the hearing. Any person aggrieved by the decision of the Board of Commissioners shall be entitled to appeal such decision to the Court of Common Pleas in accordance with the terms of the Local Agency Appeal Law, as amended, 2 Pa.C.S.A. § 751 et seq.,
D.
In the event that the Board of Commissioners shall not sustain the
appeal or, after appeal to the Court of Common Pleas, the appeal is
not sustained, the amount assessed as a civil penalty or after waiver
of hearing shall be payable to the Township of Upper Moreland, and
the amount in any escrow account, together with the interest thereon,
shall be paid over to the Township's general account or, in default
thereof, shall be collectible in any manner provided by law for the
collection of debts or municipal claims.
In addition to any other remedy under any other provision of this chapter, a violation of the requirements of § 125-5 of this chapter or of any enforcement order issued by the Department of Code Enforcement of the Township under this chapter shall constitute a public nuisance. The Township of Upper Moreland shall have the authority to order any person causing such public nuisance to abate such public nuisance and, in the event of the failure or refusal to so abate such public nuisance, the Township may take steps to abate such nuisance and to recover the expenses of such abatement from the owner of the premises upon which such nuisance occurred either by an action at law or in equity or in the manner provided by law for the collection of municipal claims.
