[HISTORY: Adopted by the Borough Council of the Borough of
West Reading 7-18-2006 by Ord.
No. 938 (Ch. X, Part 6, of the 1993 Code of Ordinances).
Amendments noted where applicable.]
GENERAL REFERENCES
Environmental Advisory Council — See
Ch.
This chapter shall be known and may be cited as the "Borough
of West Reading Air Pollution Control Ordinance."
The purpose and intent of this chapter is to ensure that the
operation of any incinerator of bodies, body parts, infectious and/or
chemotherapeutic wastes within the Borough, does not degrade the ambient
air quality so as to adversely impact the health, safety, general
welfare and property of the people of the Borough and does not adversely
impact plant and animal life or the comfort and convenience of the
public and natural resources of the commonwealth through the addition
of mercury pollution to the ambient air, and to exercise the authority
granted to the Borough under the Pennsylvania Air Pollution Control
Act.[1]
[1]
Editor's Note: See 35 P.S. § 4001 et seq.
This chapter is enacted pursuant to the authority granted to
the Borough by all relevant federal and state laws and their corresponding
regulations, including, without limitation, the following:
A.
Pennsylvania Constitution, Article I, Section 27;
B.
Pennsylvania Air Pollution Control Act, 35 P.S. § 4012,
which preserves the rights of municipalities to adopt air pollution
ordinances and regulations not less stringent than the requirements
of the Clean Air Act, the Pennsylvania Air Pollution Control Act,
or rules and regulations promulgated thereunder;
C.
Solid Waste Management Act, 35 P.S. § 6018.101 et seq.,
which preserves the rights and remedies of municipalities concerning
solid waste within their borders;
D.
Municipal Waste Regulations, 25 Pa. Code §§ 271 and
275 et seq.; and
E.
Clear Air Act, 42 U.S.C. § 7401 et seq.
The following words and phrases when used in this chapter, unless
the context clearly indicates otherwise, shall have the meaning ascribed
to them in this section:
Any structure or machine operated for the combustion (oxidation)
of any combination of the following: deceased human or other animal
bodies or body parts, or waste that is otherwise regulated as pathological,
infectious or chemotherapeutic waste. Biowaste incinerators shall
include, but are not limited to, medical waste incinerators, pathological
waste incinerators and crematoria.
The Borough of West Reading, Berks County, Pennsylvania.
The Borough Council of the Borough of West Reading, Berks
County, Pennsylvania.
A pollution monitoring system that can provide emissions
data for a sampling period that covers the entire operating time of
a facility. Such devices used in this chapter must be certified by
the United States Environmental Protection Agency's Environmental
Technology Verification (ETV) Program, or its successor agency.
Any corporation organized under the laws of any state of
the United States or any country. The term "corporation" shall include
all entities that possess limited liability characteristics, including
limited partnerships, limited liability partnership, nonprofit organizations,
business trusts, limited liability corporations, governmental bodies
and municipal authorities organized under the laws of any state or
the United States or any country.
A biowaste incinerator.
The person or corporation that has the legal right of proprietorship
of a facility. In cases of emergency, facility operators may be notified
in lieu of owners to promote timely responses to the emergency.
Any natural person, not including corporations.
If the facility is owned and operated by a person, the responsible
party is that natural person. If the facility is owned and/or operated
by a corporation, this term shall include all officers and directors
of any corporation that owns or operates the facility.
As a requirement for the operation of a biowaste incinerator
which may release mercury and thereby cause air pollution or adverse
environmental effects, the Borough Council shall, in considering the
type of facility and degree of potential air pollution or potential
adverse environmental effects, require certain certifications by the
owner of said facility.
A.
The owner of a facility shall certify that any facility under their
control will not exceed the limits for contaminants specified within
this chapter.
B.
The owner of a facility shall certify that monies will be made immediately
available to fund any and all air pollution monitoring of the facility.
C.
The Borough Council may demand any further proof or require the posting
of a bond by the owner of a facility as deemed necessary to ensure
compliance with any certification and may require the owner to recertify
on an annual basis.
D.
Certifications shall not be transferred or assigned to any other
person or corporation.
E.
All certifications required under this chapter shall be made under
oath, and subject to the penalties of perjury and false swearing.
A.
The operator of a facility must monitor for mercury at all times when the facility is in operation. CEMS for which there exist United States Environmental Protection Agency or Pennsylvania Department of Environmental Protection standards must also comply with all such standards. CEMS must be used to measure mercury concentrations on a standard basis for direct comparison with the mercury standard in § 131-8A of this chapter. It shall be unlawful for any person or corporation to construct, assemble, install or modify, operate or continue to operate any facility which emits or which may emit mercury within the Borough without full compliance with the provisions of this section.
B.
Pollution monitoring shall be conducted by an engineering firm approved
by the Borough Council with results becoming the property of the Borough.
All costs of monitoring shall be borne by the person or corporation
owning the facility, with the owner of the facility receiving immediate
notice if emissions which are subject to the CEMS requirements under
this chapter exceed 85% of any emissions limitation established by
law or regulation, and also if such limitation is exceeded. The owner
of the facility shall furnish funding for the monitoring on an advance
quarterly basis by cash or certified check made payable to the Borough
and drawn upon a bank authorized to do business within the Commonwealth
of Pennsylvania. Failure to make advance payment within two working
days of the end of each quarter shall require cessation of operation
of the facility until such time as payment is received by the Borough.
C.
The engineering firm shall ensure that monitoring data is available
in real-time to Borough computers in a format acceptable to the Borough,
where they shall be archived and made immediately available on the
Borough's website at the expense of the facility owner. The engineering
firm shall ensure that the Borough Council and the facility owner
or operator are immediately notified when contaminant levels exceed
85% of, or violate, the maximum levels allowed under this chapter,
and shall duly note the person(s), date and time such notification
was given.
D.
CEMS must be started up at least 12 hours before the commencement
of facility operation, unless the manufacturer of the CEMS certifies,
and Borough Engineers agree, that the equipment can sample accurately
with a shorter warm-up time.
E.
Where applicable, non-detects shall be measured at half the detection
limit.
F.
The facility owner and operator shall furnish written consent for
the inspection of the facility at any time by the designees of the
Borough Council for the purpose of assuring compliance with this chapter.
Such designees shall be permitted entry upon any property or into
any building, premises or place on which or within which a biowaste
incinerator may be located and to inspect the emissions monitoring
equipment as may be necessary to ensure that such equipment is operational,
is operating properly and is being used as intended by the manufacturer
and in accordance with this chapter.
G.
Exceeding the established levels of contaminant releases as may be
shown by continuous emissions monitoring shall constitute prima facie
evidence that a violation has occurred.
H.
The facility owner and operator shall permit the installation of
such monitoring devices, measuring equipment, indicators or alarms
as deemed necessary by the engineering firm approved by the Borough
Council.
I.
Violation(s) of any provision within this section shall constitute
a misdemeanor and penalties may be assessed whether the violations
were willful.
As a requirement for the operation of any biowaste incinerator
which may release mercury and thereby cause air pollution or adverse
environmental effects, the Borough Council shall, in considering the
type of facility and degree of potential air pollution or potential
adverse environmental effects, require proof of financial responsibility
or security assuring the proper construction, operation and maintenance
of CEMS in the form of a bond or other legal instrument of a form
acceptable to the Borough Council, payable to the Borough, which guarantees
proper construction, repair, operation and maintenance, inspections
and monitoring of the facility and removal, if necessary. The amount
of such bond or legal instrument shall be sufficient to cover all
costs of entry, correction, repair, operation, maintenance, inspection
or monitoring of the CEMS in the event of failure by the owner to
comply with the provisions of this chapter or any order issued hereunder.
A.
Mercury emissions. The mercury emissions limit for each biowaste
incinerator shall be 0.05 mg/Nm3. It shall be unlawful to emit more
than this limit. In calculating compliance with this limit, data may
be averaged on a three-hour basis. Such averaging shall not include
data from times when waste is not being fed into the incinerator.
B.
In cases where the average weekly emissions exceed the mercury emissions
limit, waste feed shall be cut off and operations shall be immediately
ceased until corrective action is taken.
To the extent a more stringent standard, limit or requirement
for the emission of air contaminants or a standard of performance
for any facility defined in this chapter as a biowaste incinerator
is not expressly set forth herein, the Borough adopts and incorporates
by reference herein the standards, limits and requirements for the
emission of air contaminants and standards of performance for stationary
sources as promulgated by the United States Environmental Protection
Agency pursuant to the Clean Air Act or by the Commonwealth of Pennsylvania
pursuant to the Air Pollution Control Act or any other relevant statutes.
It is expressly the intent of the Borough in adopting these standards,
limits, requirements and standards of performance to make them independently
enforceable by the Borough.
To the extent that either the United States Environmental Protection
Agency or the Pennsylvania Department of Environmental Protection
determines that a control technology is reasonably available to reduce
or minimize the emission of air contaminants from a stationary source,
each stationary source within the Borough shall modify its facility
so as to utilize the control technology within such time as the Borough
Council may reasonably determine. The Borough Council shall notify
the facility of the time period within which it must modify the facility
to utilize the control technology. It shall be the responsibility
of the facility to obtain such permits and approvals for the modification
of the facility as are necessary under state and federal law.
It shall be unlawful for any person or corporation to:
A.
Fail to comply with any provision of this chapter including, but not limited to, the provisions of § 131-9 above.
B.
Violate or assist in the violation of any of the provisions of this
chapter.
C.
Attempt to circumvent any provision of this chapter through misrepresentation
or failure to disclose all relevant facts. Nothing in this chapter
shall be construed to affect the application of the provisions of
the Crimes Code, Title 18 of the Pennsylvania Consolidated Statutes,
relating to perjury, false swearing or unsworn falsification to authorities.[1]
[1]
Editor's Note: See 18 Pa.C.S.A. § 101 et seq.
D.
Intentionally obstruct, impair or interfere with the administration
of this chapter by the Borough Council or their designees by force,
violence, physical interference or obstacle or any other unlawful
act. Nothing in this chapter shall be construed to affect the application
of Section 5101 of the Crimes Code, Title 18 of the Pennsylvania Consolidated
Statutes as to obstructing administration of law or other governmental
function.[2]
[2]
Editor's Note: See 18 Pa.C.S.A. § 5101.
E.
Tamper or interfere with any sample, process, device, equipment,
computer hardware or software, indicator or alarm, report, electrical
power, pipe, gas or other media so as to affect or alter any sample,
process, device, equipment, indicator or alarm, report, electrical
power, pipe, gas or other media used in the gathering and analysis
of samples or the reporting of sample analysis as may be required
by the Borough Council in the administration of this chapter.
The emission of mercury into the atmosphere of the Borough,
except in conformity with this chapter, is hereby declared to be public
nuisance, abatable in the manner prescribed by law.
Whenever the Borough Council has reason to believe that there
has been a violation of this chapter or other state or federal law,
or any of the rules and regulations promulgated pursuant thereto,
or a misrepresentation of any certification, the Borough Council shall,
in addition to any other remedy available to it, and in the absence
of an emergency situation requiring prompt action, give written notice
of such violation to the owner or operator of the facility, and therein
order such corrective measures as are deemed reasonable and necessary
to cure the violation. This notice shall state the nature of the violations
and shall allow a reasonable time for the performance of the necessary
corrective measures. If the owner or operator of the facility fails
to carry out the corrective measures set forth in the notice within
the time period stated therein, the Borough Council shall institute
such other actions as may be deemed necessary to terminate the violation.
In accordance with the
Pennsylvania Air Pollution Control Act, 35 P.S. § 4012(g),
providing that civil and criminal penalties for air pollution violations
be uniform throughout the commonwealth, and further providing that
"the penalties and remedies set forth in this act shall be the penalties
and remedies available for enforcement of any municipal air pollution
ordinances or regulations, and shall be available to any municipality,
public official, or other person having standing to initiate proceedings
for the enforcement of such municipal ordinances or regulations,"
the criminal and civil penalties for violation of this chapter shall
be as set forth below.
A.
Notwithstanding any other provisions herein, any responsible party
that violates any provision of this chapter or any of the rules and
regulations pursuant hereto, or who misrepresents any certification
upon conviction of such offense in a summary proceeding shall be subject
to a fine of not less than $200 nor more than $2,500, plus costs of
prosecution, or, in default of the payment of such fine, be imprisoned
for not less than one day nor more than one year. Each day of violation
or misrepresentation of certification shall constitute a separate
offense and each 1% above the emissions limit shall also constitute
a separate offense.
B.
Any responsible party that, within two years after a conviction in a summary proceeding as provided in Subsection A above, engages in unlawful conduct as defined in this chapter is guilty of a misdemeanor of the third degree and, upon conviction, shall be sentenced to pay a fine of not less than $500 nor more than $5,000 for each separate offense, or, in default of the payment of such fine, to imprisonment for a period of not less than one day nor more than one year. Each day of violation or occurrence of misrepresentation of certification shall constitute a separate offense.
C.
In addition to proceeding under any other remedy available at law
or in equity for a violation of a provision of this chapter, the Borough
may initiate criminal proceedings against the responsible party pursuant
to 35 P.S. § 4009.
A.
Any responsible party that violates any provision of this chapter, or any compliance order issued pursuant to §§ 131-8 through 131-11 of this chapter, shall pay to the Borough a civil penalty in the amount assessed by Borough Council. The penalty may be assessed whether or not the violation was willful. The civil penalty so assessed may not exceed $10,000 per day for each violation. In determining the amount of the penalty, the Borough may consider the willfulness of the violation; damage to air, soil, water or other natural resource or their uses; financial benefit to the person or corporation in consequence of the violation; deterrence of future violations; costs to the Borough; the size of the source or facility; the compliance history of the source; the severity and duration of the violation; the degree of cooperation in resolving the violation; the speed with which compliance is ultimately achieved; whether the violation is voluntarily reported; other factors unique to the owners or operators of the source or facility; and other relevant factors.
B.
When the Borough proposes to assess a civil penalty, it shall inform
the owner of the proposed amount of the penalty. The owner charged
with the penalty shall then have 30 days to pay the proposed penalty
in full, or if the owner wishes to contest the amount of the penalty
or the fact of the violation to the extent not already established,
the owner shall forward the proposed amount of the penalty to the
Borough within the thirty-day period for placement in an escrow account
with any bank in the Commonwealth of Pennsylvania.
Notwithstanding any other provision herein, if the Borough Council
finds any person or corporation is operating a facility without complying
with the requirements of this chapter, or any of the rules and regulations
promulgated thereunder, the Borough Council may, in addition to other
remedies that may be available to it, order the immediate discontinuance
of such violations or order other compliance. Failure to comply with
such an order of discontinuance or any other order of compliance issued
by the Borough shall constitute a violation of this chapter. In addition
to all other remedies, upon a failure to comply with such order the
Borough may secure a temporary restraining order, a preliminary injunction,
a permanent injunction or other appropriate relief, or declare the
operation a public nuisance, and order the immediate abatement of
the same, with the costs of such abatement to be borne and assessed
in accordance with law.
