[Adopted 9-16-2010 by Ord. No. 594]
A.
The Board of Supervisors of Lower Providence Township has determined
that air pollution from open burning may be detrimental to the health,
comfort, living conditions, welfare, and safety of the residents of
Lower Providence Township; and
B.
C.
It is declared to be the policy of Lower Providence Township to protect
the residents of Lower Providence Township from air pollution and
to insure compliance with the Municipal Waste Planning, Recycling
and Waste Reduction Act; and
D.
Pursuant to the authority provided by the Pennsylvania Second Class
Township Code;[3] and the Pennsylvania Municipal Waste Planning, Recycling,
and Waste Reduction Act of July 28, 1988 (P.L. 528, No. 101) (Pennsylvania
Act 101), as amended by Act 140 of 2006, Lower Providence Township
enacted a Municipal Waste Collection and Recycling Ordinance[4] requiring the collection and/ or recycling of all materials
defined as "waste" by the Pennsylvania Solid Waste Management Act
and 25 PA Code 271.1.[5]
It shall be unlawful for any person, or entity, to openly burn
any materials, including, but not limited to, rubbish, trash, garbage,
leaves, vegetative material of any kind, including, but not limited
to, yard waste, household or business products, and materials, including
containers, and packaging materials, chemicals or products containing
chemical residue, or waste or refuse of any kind or nature whatsoever,
anywhere in the Township of Lower Providence, Montgomery County, Pennsylvania,
except as otherwise permitted by the provisions of this article.
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 Providence is located in the geographic area of this
commonwealth identified and delimited by DEP as "Southeast Pennsylvania
Air Basin," consisting of the counties of Bucks, Chester, Delaware,
Montgomery, and Philadelphia.
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.
A commercially manufactured appliance designed and sold for
the sole purpose of the outdoor cooking of food.
An outdoor fire utilized for ceremonial purposes; with fuel
area larger than that of a recreational/ceremonial open burning fire.
The act of consuming by fire; to flame, char, scorch, or
blaze. As used in this article, smoldering shall have the same meaning
as burning and any smoldering shall be deemed a burning.
An area outdoors, excavated or constructed, for the purpose
of holding an outdoor fire to cook food, having a total fuel area
of three feet or less in diameter and two feet or less in height.
Any burning that directly releases or emits air contaminants
into the outdoor atmosphere and not directed thereto through a flue
constructed and permanently connected to a permanent and permitted
structure in the Township.
An outdoor masonry fireplace constructed on site, pursuant
to a permit, in accordance with an approved outdoor fireplace plan,
as a permanent appliance designed for the purpose of holding an outdoor
fire and/or cooking food.
Any individual, public or private corporation for profit
or nonprofit, association, partnership, firm, trust, estate, department,
board, bureau or agency of the Commonwealth of Pennsylvania, or any
political subdivision, municipality, district, or authority created
by the laws of the Commonwealth of Pennsylvania, or any other entity
whatsoever which is recognized by the laws of the Commonwealth of
Pennsylvania or the federal government of the United States as being
subject of legal rights and duties.
A commercially manufactured appliance designed and sold for
the purpose of holding an outdoor fire.
An outdoor open burning fire permitted to burn only dry tree
trimmings (excluding leaves), no greater than three inches in diameter
as fuel and which is not contained in an approved and permitted outdoor
fireplace, a commercially manufactured portable outdoor fireplace,
an outdoor cooking grill or barbeque pit, constructed to have a total
fuel area of three feet or less in diameter and two feet or less in
height.
The following open burning is permitted subject to conditions
and regulations contained herein:
A.
Open burning for the purpose of preventing or abating a fire hazard,
provided said burning is permitted by the Department of Environmental
Protection's Southeast Pennsylvania Regional Office; that the Lower
Providence Township Fire Marshal is provided written evidence of said
permission prior to igniting the fire; and the burning is ignited
under the supervision of the appropriate public officer.
B.
Open burning conducted for the purpose of instructing personnel in
firefighting, provided said burning is permitted by the Department
of Environmental Protection's Southeast Pennsylvania Regional Office;
and Lower Providence Township's Fire Marshal is provided written evidence
of said permission prior to the igniting of said burning.
C.
Open burning for the purpose of prevention and control of disease
or pests, provided said burning is permitted by the Department of
Environmental Protection's Southeast Pennsylvania Regional Office;
and Lower Providence Township's Fire Marshal is provided with written
evidence of said permission prior to the igniting of said burning.
D.
Open burning for the purpose of burning, clearing and grubbing of
vegetation to clear land prior to construction, provided said burning
does not include demolition of waste and dirt-laden plant roots or
occur within 50 feet of any structure or combustible materials (other
than the vegetation to be cleared); and employs an air curtain destructor
approved and permitted by the Department of Environmental Protection's
Southeast Regional Office; and written evidence of said approval and
permission is provided to the Fire Marshal of Lower Providence Township
prior to the igniting of said burning; and said burning is extinguished
by dusk on the same day it is ignited; and the name of the person
who will be responsible for conducting the burn and who will be in
constant supervision of the burn is provided; and a permit for said
burn is issued by Lower Providence Township.
E.
Open burning in conjunction with the production of agricultural commodities
in their unmanufactured state on the premises of the agricultural
operation, provided said burn is extinguished by dusk on the same
day it is ignited; that written notice of said burning, including
a specific description of the type, quantity, location, fuel, and
manner of burning and manner of extinguishing the burn and the name
of the person who will be responsible for conducting the burn and
who will be in constant supervision of said burn is given to the appropriate
Lower Providence Township Fire Marshal prior to the igniting of said
burning.
F.
Open burning for the sole purpose of cooking food, which is entirely
contained in an open barbeque pit. The fuel shall be limited to dry
tree trimmings (excluding leaves) no greater than two inches in diameter:
a permit is first obtained from Lower Providence Township prior to
igniting said fire; and a water source or chemical fire extinguisher
capable of extinguishing said fire shall be at the site of the fire
at all times; and said fire shall be extinguished when the food for
which it was set is cooked, but in no event later than dusk on the
day it is ignited.
G.
Open burning which is entirely contained in an approved and permitted
outdoor fireplace, a commercially manufactured-for-outdoor-use portable
fireplace, or barbeque grill, shall be permitted on private property
within Lower Providence Township without a specific Lower Providence
Township permit, provided that no burning shall take place closer
than 15 feet from any combustible materials; that the fire shall be
under continuous supervision of a responsible adult who shall be responsible
for its safe use until it is entirely extinguished; that a commercial
fire extinguisher and/or garden hose connected to a water supply be
available at the site for immediate utilization; that the only fuel
burned in the commercially manufactured appliances is that fuel approved
by the commercial manufacturer of said appliance, and where the manufacturer-approved
fuel to be burned in said commercially manufactured appliances is
wood; said fuel must be dry tree trimmings (excluding leaves) no greater
than two inches in diameter.
H.
A recreational/ceremonial open burning fire as defined herein may
be set solely for recreational or ceremonial purposes, provided a
permit is obtained from Lower Providence Township prior to the igniting
of said fire; that the fuel for said fire is dry tree trimmings no
greater than three inches in diameter, unless otherwise specifically
provided in the permit issued by Lower Providence Township; that fire
extinguishers and/or a hose connected to a water supply shall be at
the site of the fire at all times; and the fire shall be extinguished
at dusk on the same day it is ignited unless the permit issued by
Lower Providence Township specifically provides otherwise.
I.
A bonfire as defined herein may be set solely for recreational purposes,
provided a permit is obtained from Lower Providence Township prior
to the igniting of said fire; and approval is given by the Lower Providence
Township Fire Marshal prior to said burning.
Regulations for the permitted open burning outlined in § 83-21 above:
A.
Any open burning permitted under § 83-21 above shall comply with all requirements of the permit/permission granted by DEP and/or Lower Providence Township.
C.
The Lower Providence Board of Supervisors shall by resolution, modified
from time to time, determine and set the fee to be charged for any
review and/or permit required under this article.
D.
Regardless of the issuance of any permit pursuant to this article
and the payment of any fees therefor, any Lower Providence Township
Manager or agent thereof may suspend the open burning and order extinguished
any open burning at any time said official determines, in his or her
sole discretion and opinion that:
(1)
Smoke, embers and/or ash emanating from said burning has caused is
likely to cause damage to property or vegetation of adjacent property.
(2)
Smoke, embers and/or ash are, or may become, offensive, objectionable,
or deleterious to human or animal health and/or a public nuisance.
(3)
Dry or drought conditions require a ban on all open burning.
E.
All open burning must be supervised and attended by one or more adults
responsible for the safe operation of the fire and/or its extinguishment.
F.
All fuel used in any open burning permitted hereunder, including but not limited to the agricultural burning permitted by § 83-21E shall be limited to fuel originating on the same property permitted for the open burning, unless specifically provided otherwise in the permit issued by Lower Providence Township.
G.
All open burning permitted hereunder shall be extinguished no later
than dusk on the day it is ignited unless the permit issued by Lower
Providence Township specifically allows otherwise.
A.
The Lower Providence Township Manager, or his designated Township
agent(s), shall have the power and duty to enforce the provisions
of this article.
B.
The Lower Providence Township Manager or his designated Township agent(s) 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, order to suspend and/or extinguish any open burning pursuant to § 83-22D, above; orders requiring persons to cease unlawful open burning which, in the course of its occurrence, is in violation of any provision of this article; 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 Lower Providence Township finds that any condition existing in or on the property, facility, or source involved is causing or contributing to open burning or if Lower Providence Township finds that any person is in violation of any provision of this article.
C.
Lower Providence Township may, in its order, require compliance with
such conditions as are necessary to prevent or abate open burning
or affect the purposes of this article.
D.
An order issued under this section shall take effect upon notice,
unless the order specifies otherwise. An appeal to the Board of Supervisors
of Lower Providence Township's order shall not act as a supersedeas;
provided, however, that, upon application and for cause shown, the
Board of Supervisors may issue such a supersedeas under rules established
by said Board of Supervisors.
E.
The authority of Lower Providence Township by its employees, to issue
an order under this section is in addition to any remedy or penalty
which may be imposed pursuant to this article. The failure to comply
with any such order is hereby declared to be a public nuisance.
The responsibility of owners and operators:
A.
Whenever the Township Manager, or his designated agent(s) finds that
open burning is occurring within Lower Providence Township, the Township
Manager or agent(s), may order the owner or operator to take corrective
action in a manner satisfactory to the Township Manager, or agent(s),
or may order the owner or operator to allow access to the land by
the Township Manager, or agent(s), or a third party to take 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, Lower Providence 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 § 83-26 of this article.
Any person who violates any provision of this article or any
order of the Lower Providence 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 Lower Providence 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 Lower Providence Township Solicitor is hereby
authorized to prosecute these offenses. For purposes of this section,
a summary offense may be prosecuted before any district justice having
jurisdiction in Lower Providence Township. There is no accelerated
rehabilitative disposition authorized for a summary offense.
A.
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, Lower Providence Township may
assess a civil penalty for a violation of this article. The penalty
may be assessed whether or not the violation was willful. The civil
penalty so assessed shall not exceed $2,500 per day for each violation.
In determining the amount of the penalty, Lower Providence Township
shall consider the willfulness of the violation; damage to air, soil,
water, or other natural resources of Lower Providence Township or
their uses; financial benefit to the person in consequence of the
violation; deterrence of future violations; cost to Lower Providence
Township; the physical and economic size of the source or facility;
the compliance history of the source entity, or facility; 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, entity, or facility; and
other relevant factors.
B.
When Lower Providence Township assesses a civil penalty, it shall
inform the person charged with responsibility for the violation of
the amount of the penalty. The person charged with the penalty shall
then have 30 days to pay the proposed penalty in full. If the person
wishes to contest the amount of the penalty or the fact of the violation
to the extent not already established, said person shall forward a
written appeal and request for a hearing together with the amount
of the penalty to the Lower Providence Township Board of Supervisors
within the thirty-day period of the assessment of the penalty. Said
penalty amount shall be placed in an escrow account, by the Township
Treasurer, in any federal or commonwealth chartered bank. The appellant
may post an appeal bond to the Lower Providence Township Board of
Supervisors in lieu of the cash escrow, provided said bond is posted
within said 30 days; is in the amount of the penalty; is executed
by a surety licensed to do business in the commonwealth; and, in all
particulars, is satisfactory to the Lower Providence Township Board
of Supervisors. If, through administrative or final judicial review
of the penalty, it is determined that no violation occurred or that
the amount of the penalty shall be reduced, the Lower Providence Township
Board of Supervisors shall, within 30 days, remit the appropriate
amount from the escrow account, to the person or entity together with
the appropriate adjusted amount of interest accumulated.
C.
Failure of the person or entity charged with the violation and/or penalty to forward the money or an appeal bond acceptable to Lower Providence Township, in the amount of the assessed penalty, within 30 days of the time limit set in Subsection B above for the filing of the appeal, shall result in a waiver of all legal rights to contest the violation or the amount of the civil penalty.
D.
In the event the appellant alleges financial inability to pay the
penalty or to post the appeal bond pending the appeal. The Lower Providence
Township Board of Supervisors shall conduct a hearing to consider
the appellant's alleged inability to pay within 30 days of the date
of receiving the appellant's appeal. The Lower Providence Township
Board of Supervisors may waive the requirement to prepay the civil
penalty or to post an appeal bond if the appellant demonstrates and
the Lower Providence Township Board of Supervisors finds that the
appellant is financially unable to pay. The Lower Providence Township
Board of Supervisors shall issue an order within 30 days of the date
of a final hearing on the appellant's alleged inability to pay.
E.
Any amount of the civil penalty assessed after an administrative
hearing on the merits of the appeal, or after appellant's waiver of
an administrative hearing, shall be payable to the Lower Providence
Township from the escrow account or 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 debt of such person,
as may be appropriate, to Lower Providence 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 docket a civil judgment, at no cost to Lower
Providence 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 Lower Providence
Township; 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 Lower Providence Township
or its personnel in their performance of any duty hereunder, including
denying the Township Manager or his agent access to the source, entity
or facility; or to violate the provisions of 18 Pa.C.S.A. § 4903
(relating to false swearing) or 18 Pa.C.S.A. 4904 (relating to unworn
falsification to authorities) in regard to information required to
be submitted under this article. The owner or operator of an open
burning source shall not allow pollution of the air, water, or other
natural resources of the Lower Providence Township to result from
the source.
A violation of this article or of any order issued by the Lower Providence Township Manager or his agent under this article shall constitute a public nuisance. Lower Providence 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, Lower Providence Township may recover the expenses of abatement following the process for assessment and collection of a civil penalty contained in § 83-26. 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.
In the event that any section, sentence, clause, phrase or word
of this article shall be declared illegal, invalid or unconstitutional
by any court of competent jurisdiction, such declaration shall not
prevent, preclude or otherwise foreclose enforcement of any of the
remaining portions of this article.
This article shall become effective five days from date of enactment.
