[Adopted 9-19-2006 by Ord. No. 612]
This article shall be known and may be cited as the "Tamaqua
Borough Sewage Sludge Ordinance."
This article is enacted pursuant to the authority granted to
Tamaqua Borough by all relevant federal and state laws and their corresponding
regulations, and by the inherent right of the citizens of the Borough
of Tamaqua to self-government, including, without limitation, the
following:
A.
The Declaration of Independence, which declares that people are born
with "certain unalienable rights" and that governments are instituted
among people to secure those rights;
B.
The Pennsylvania Constitution, Article 1, Section 2, which declares
that "all power is inherent in the people, and all free governments
are instituted for their peace, safety, and happiness";
C.
The Pennsylvania Constitution, Article 1, Section 26, which declares
that "neither the Commonwealth nor any political subdivision thereof
shall deny to any person the enjoyment of any civil right";
D.
The Pennsylvania Constitution, Article I, Section 27, which provides for the "preservation of the natural, scenic, historic, and esthetic values of the environment";
E.
The Borough Code, Article XII, § 1202(6)[1], which establishes the authority of borough governments
in the commonwealth to adopt ordinances "as may be necessary for the
health, safety, morals, general welfare and cleanliness and beauty,
convenience, comfort and safety of the borough";
[1]
Editor's Note: See 8 Pa.C.S.A. § 1202(5).
F.
The Borough Code, Article XII, § 1202(28)[2], which establishes the authority of Borough governments
in the commonwealth to adopt Ordinances "to prohibit, within the Borough,
the carrying on of any manufacture, art, trade, or business which
may be noxious or offensive to the inhabitants";
[2]
Editor's Note: See 8 Pa.C.S.A. § 1202(20)(i)(A).
G.
The Borough Code, Article XII, § 1202(74)[3], which establishes the general power of Borough governments
in the commonwealth to make and adopt Ordinances that "may be expedient
or necessary for the proper management, care and control of the borough
and its finances and the maintenance of peace, good government, safety
and welfare of the borough and its trade, commerce and manufactures";
[3]
Editor's Note: See 8 Pa.C.S.A. § 1203.
H.
The 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;
I.
Municipal waste regulations, 25 Pa. Code §§ 271.1
et seq.; and
J.
Land application of sewage sludge, 40 CFR Part 503.
In support of enactment of this article, the Borough Council
of Tamaqua Borough finds and declares that:
A.
The land application of sewage sludge in Tamaqua Borough poses a
significant threat to the health, safety, and welfare of the citizens
and environment of Tamaqua Borough.
B.
In April 2002, the Inspector General of the Environmental Protection
Agency (EPA), which oversees state sewage sludge regulations, issued
a report in which it concluded, "EPA cannot assure the public that
current land application [of sewage sludge] practices are protective
of human health and the environment." Among the Inspector General's
concerns were the following: "failure to properly manage sludge may
have adverse effects on human health and the environment"; "EPA does
not have an effective program of ensuring compliance with land application
requirements"; and state officials have criticized the lack of EPA
oversight, staffing, and commitment toward ensuring the safety of
land applied sludge.
C.
In 1994, eleven-year-old Tony Behun from Rush Township, Centre County,
Pennsylvania, died from a staph infection shortly after being exposed
to sewage sludge. The following year, seventeen-year-old Daniel Pennock
from Reading, Pennsylvania, died from a staph infection shortly after
being exposed to sewage sludge. The U.S. Environmental Protection
Agency (EPA) recognizes staph as a potential pathogenic component
of sewage sludge.
D.
In spite of these risks, Tamaqua Borough has been rendered powerless
by the state and federal government to prohibit the land application
of sewage sludge by persons that comply with all applicable laws and
regulations.
E.
In order to protect the health, safety, and welfare of the residents
of Tamaqua Borough, the soil, groundwater, and surface water, the
environment and its flora and fauna, and the practice of sustainable
agriculture, the Borough finds it necessary to ban corporations and
other limited liability entities from engaging in the land application
of sewage sludge. It is recognized that a small number of waste management
corporations control the vast majority of sludge hauling and land
application, and that corporate concentration enables those corporations
to define waste management practices at the state level to the detriment
of municipal communities. It is also recognized that limited liability
shields prevent financial recovery (and accountability) for damages
caused by business entities because limited liability insulates the
persons managing the corporation from harms caused by their decisions.
Finally, the Borough recognizes that corporations wielding government-conferred
constitutional powers against the municipal government renders the
Borough Council unable to guarantee to its citizens a republican form
of government in the Borough.
F.
In order to protect the health, safety, and welfare of the residents
of Tamaqua Borough, the soil, groundwater, and surface water, the
environment and its flora and fauna, and the practice of sustainable
agriculture, it is necessary to test each load of sewage sludge to
be applied by persons before it is land applied within the Borough
to determine if the level of pollutants, pathogens, or vector attractants
exceeds the levels allowed under applicable laws and regulations.
G.
DEP does not possess sufficient funding or personnel to ensure that
persons land applying sewage sludge in Tamaqua Borough are doing so
in compliance with state laws and regulations, so Tamaqua Borough
must have the option of enforcing those laws and regulations itself.
H.
Tamaqua Borough's cost of testing sewage sludge prior to land application
shall be borne by those persons land applying sewage sludge in the
Borough.
The following terms shall have the meanings defined in this
section wherever they are used in this article.
Use or reuse of residual waste or material derived from residual
waste for commercial, industrial, or governmental purposes where the
use or reuse does not harm or threaten public health, safety, welfare,
or the environment, or the use or reuse of processed municipal waste
for any purpose where the use or reuse does not harm or threaten public
health, safety, welfare, or the environment. (See 25 Pa. Code Chapter
271, Subchapter A, § 271.1.)
Tamaqua Borough in Schuylkill County, Pennsylvania, its Borough
Council, or its representatives or agents.
Any corporation organized under the laws of any state of
the United States or under the laws of any country. The term shall
also include any limited partnership, limited liability partnership,
business trust, or limited liability company organized under the laws
of any state of the United States or under the laws of any country,
and any other business entity that possesses state-conferred limited
liability attributes for its owners, directors, officers, and/or managers.
The term shall also include a municipality or municipal authority.
The term shall also include any business entity in which one or more
owners or partners is a corporation or other entity in which owners,
directors, officers and/or managers possess limited liability attributes.
The Pennsylvania Department of Environmental Protection.
A facility that tests sewage sludge samples for pollutants,
pathogens, and vector attractants in compliance with DEP regulations,
including, without limitation, those regulations (see 25 Pa. Code
§ 271.906) that dictate approved methodologies for conducting
such tests.
Any person responsible for complying with all federal, state,
and local laws and regulations concerning the land application of
sewage sludge.
The spraying or spreading of sewage sludge onto the land
surface for beneficial use; the injection of sewage sludge below the
land surface for beneficial use; or the incorporation of sewage sludge
into the soil for beneficial use so that the sewage sludge can either
condition the soil or fertilize crops for vegetation grown in the
soil. (See 25 Pa. Code Chapter 271, Subchapter J, § 271.907.)
The term shall also include the spraying, spreading, injection, or
incorporation of sewage sludge onto, into, or below the land surface
for reclamation of previously mined lands.
The Tamaqua Borough Sewage Sludge Ordinance.
A natural person, or an association of natural persons that
does not qualify as a corporation under this article.
Liquid or solid sludge and other residue from a municipal
sewage collection and treatment system, and liquid or solid sludge
and other residue from septic and holding tank pumpings from commercial,
industrial, or residential establishments. The term includes material
derived from sewage sludge. The term does not include ash generated
during the firing of sewage sludge in a sewage sludge incinerator,
grit and screenings generated during preliminary treatment of sewage
sludge at a municipal sewage collection and treatment system, or grit,
screenings, or inorganic objects from septic and holding tank pumpings.
(See 25 Pa. Code Chapter 271, Subchapter A, § 271.1.)
See "land applicant."
Specific oxygen uptake rate, which is the mass of oxygen
consumed per unit time per unit mass of total solids (dry weight basis)
in the sewage sludge.
A person, corporation, or other entity substantially owns or controls another person, corporation, or other entity if it has the ability to evade the intent of § 260-65F of this article by using that person, corporation, or other entity to land apply sewage sludge in Tamaqua Borough.
A load containing a maximum of approximately 23 tons of sewage
sludge, based upon Tamaqua Borough's understanding that sewage sludge
for land application typically is delivered in tri-axle trucks that
can hold approximately that amount of sewage sludge.
Tamaqua Borough hereby adopts as local law the Pennsylvania
regulations concerning the land application of sewage sludge, including
without limitation those codified at 25 Pa. Code Chapters 271 and
275, as amended, to the extent that those regulations permit persons,
but not corporations, to engage in land application of sewage sludge
under those regulations.
A.
It shall be unlawful for any person, corporation, or other entity
to violate in Tamaqua Borough the Pennsylvania regulations concerning
the land application of sewage sludge, including, without limitation,
those codified at 25 Pa. Code Chapters 271 and 275, as amended.
B.
It shall be unlawful for any person to land apply sewage sludge in Tamaqua Borough without first complying with the requirements in § 260-62 of this article.
C.
It shall be unlawful for any corporation to engage in the land application
of sludge within the Borough of Tamaqua. It shall be unlawful for
any person to assist a corporation to engage in the land application
of sewage sludge within Tamaqua Borough.
D.
It shall be unlawful for any director, officer, owner, or manager
of a corporation to use a corporation to engage in the land application
of sludge within the Borough of Tamaqua.
E.
Within the Borough of Tamaqua, corporations engaged in the land application
of sludge, dredged material, or any other type of waste as defined
under Title 25, § 271.1 of the Pennsylvania Code, shall
not be "persons" under the United States or Pennsylvania Constitutions,
or under the laws of the United States, Pennsylvania, or Tamaqua Borough,
and so shall not have the rights of persons under those constitutions
and laws. In addition, within the Borough of Tamaqua, no corporation
engaged in the land application of sludge, dredged material, or any
other type of waste as defined under Title 25, § 271.1 of
the Pennsylvania Code, shall be afforded the protections of the Contracts
Clause or Commerce Clause of the United States Constitution, or similar
provisions from the Pennsylvania Constitution.
F.
It shall be unlawful for any corporation or its directors, officers,
owners, or managers to interfere with the existence and flourishing
of natural communities or ecosystems, or to cause damage to those
natural communities and ecosystems. The Borough of Tamaqua, along
with any resident of the Borough, shall have standing to seek declaratory,
injunctive, and compensatory relief for damages caused to natural
communities and ecosystems within the Borough, regardless of the relation
of those natural communities and ecosystems to Borough residents or
the Borough itself. Borough residents, natural communities, and ecosystems
shall be considered to be "persons" for purposes of the enforcement
of the civil rights of those residents, natural communities, and ecosystems.
G.
All residents of Tamaqua Borough possess a fundamental and inalienable
right to a healthy environment, which includes the right to unpolluted
air, water, soils, flora, and fauna. All residents of the Borough
possess a fundamental and inalienable right to the integrity of their
bodies, and thus have a right to be free from unwanted invasions of
their bodies by pollutants.
Before each and every truckload of sewage sludge is land applied
in Tamaqua Borough by a person, the sewage sludge applicant must do
the following:
A.
Complete and submit to the Borough a written application in form
and number provided by the Borough and containing the name and address
of the sewage sludge applicant, the name and address of the landowner
on whose land the sewage sludge is to be land applied, the location
of the land on which the sewage sludge is to be land applied, and
a copy of all DEP and other applicable state and federal permits pertaining
to the land application.
B.
Provide Tamaqua Borough with written proof of the class of sewage sludge to be land applied. If the sludge is Class A, provide Tamaqua Borough with written proof of the Alternative in 25 Pa. Code § 271.932(a) under which the sludge qualifies as Class A. If the sludge is Class B, provide Tamaqua Borough with written proof of the Alternative in 25 Pa. Code § 271.932(b) under which the sludge qualifies as Class B. For all classes of sludge, provide Tamaqua Borough with written proof of the alternative in 25 Pa. Code § 933(b) under which the sludge purportedly satisfies DEP vector attraction requirements. The purpose of this subsection is to confirm the class of sludge to be applied and to identify the testing that Tamaqua Borough must conduct on the sewage sludge and the requisite testing and collection fees under § 260-62D of this article.
C.
Arrange for and allow Tamaqua Borough to collect the necessary sewage
sludge samples from the truckload to be land applied to have a qualified
laboratory test the sludge for pollutants, pathogens, and vector attractants
regulated by DEP at 25 Pa. Code § 271.914 (pollutants),
§ 271.932 (pathogens), § 271.933 (vector attractants),
and at all other applicable state and federal regulations, as amended.
D.
Pay Tamaqua Borough the testing and collection fees identified below
and, when indicated, provide Tamaqua Borough with the written proof
requested below.
(1)
Pollutants. For all classes of sewage sludge, the testing fee for
pollutants under 25 Pa. Code § 271.914(a)(1) will be determined
based upon quotes from one or more qualified laboratories at the time
of testing.
(2)
Pathogens.
(a)
For Class B sludge under Alternative 1 of 25 Pa. Code § 271.932(b),
the testing fee to test seven samples for fecal coliform will be determined
based upon quotes from one or more qualified laboratories at the time
of testing.
(b)
For Class B sludge under Alternatives 2 and 3 of 25 Pa. Code
§ 271.932(b), the sewage sludge applicant shall submit written
proof that the sludge to be land applied has been treated as required
under the applicable Alternative.
(3)
Vector attractants.
(a)
For sewage sludge that purportedly satisfies vector attraction
requirements under 25 Pa. Code § 271.933(b)(1), (2), or
(3), the testing fee for mass of volatile solids will be determined
based upon quotes from one or more qualified laboratories at the time
of testing.
(b)
For sewage sludge that purportedly satisfies vector attraction
requirements under 25 Pa. Code § 271.933(b)(4), the testing
fee for SOUR will be determined based upon quotes from one or more
qualified laboratories at the time of testing.
(c)
For sewage sludge that purportedly satisfies vector attraction
requirements under 25 Pa. Code § 271.933(b)(5), (6), (7),
(8), (9), or (10), the sewage sludge applicant shall submit written
proof that the sludge to be land applied satisfies the requirements
under the applicable Alternative.
(4)
Collection. For all classes of sewage sludge, the administrative
fee for collection and transportation of the sewage sludge samples
for testing, and for handling the application, is $50 per truckload
of sewage sludge to be land applied.
E.
Store the sewage sludge pursuant to all applicable DEP, federal,
and state regulations (including without limitation those at 25 Pa.
Code § 275.204 and 25 Pa. Code Chapter 285) until the Borough
notifies the sewage sludge applicant whether it may land apply the
sewage sludge in Tamaqua Borough. The sewage sludge applicant shall
notify Tamaqua Borough of the location of the stored sludge and the
identity of the container storing the sludge, in a manner sufficient
to enable the Borough to verify that the stored sludge is the same
sludge being considered for land application.
F.
If the land applicant does not receive permission to land apply the
sewage sludge in Tamaqua Borough, it shall follow all applicable state
and federal regulations for handling and disposing of sewage sludge
that may not be land applied.
G.
If the land applicant receives notice that it is allowed to land
apply the sewage sludge in Tamaqua Borough, it shall do so in compliance
with all applicable federal, state, and local laws and regulations.
When Tamaqua Borough receives all of the following — a complete application pursuant to § 260-62A of this article; all information required under § 260-62B of this article; and all testing and collection fees and written proofs required under § 260-62D of this article — it shall do the following:
A.
Collect the necessary sewage sludge samples for testing by a qualified
laboratory for compliance with DEP's pollutant regulations at 25 Pa.
Code § 271.914, pathogen regulations for Class B sludge
at § 271.932, vector attractant regulations at § 271.933,
and all other applicable state and federal regulations, as amended.
The Borough shall instruct the laboratory to conduct the tests in
compliance with all DEP regulations for testing sewage sludge to be
land applied under the beneficial use program.
B.
Inform the sewage sludge applicant of the results of testing conducted pursuant to Subsection A within 72 hours after receiving the results.
C.
If the testing reveals that the sewage sludge contains levels of
pollutants, pathogens, or vector attractants that violate DEP regulations
at 25 Pa. Code § 271.914 (pollutants), § 271.932
(pathogens), § 271.933 (vector attractants), or any other
federal or state laws or regulations, as amended, the Borough shall
deny permission for the sewage sludge to be land applied in Tamaqua
Borough. Otherwise, the Borough shall grant permission for the land
application.
A.
Tamaqua Borough shall enforce this article by an action brought before
a Magisterial District Judge in the same manner provided for the enforcement
of summary offenses under the Pennsylvania Rules of Criminal Procedure.
[See 53 P.S. § 66601(c.1)(2).]
B.
Any person, corporation, or other entity that violates any provision
of this article shall be guilty of a summary offense and, upon conviction
thereof by a Magisterial District Judge, shall be sentenced to pay
a fine of $750 for first-time violations, $1,000 for second-time violations,
and $1,000 for each subsequent violation, and shall be imprisoned
to the extent allowed by law for the punishment of summary offenses.
[See 53 P.S. § 66601(c.1)(2).]
C.
A separate offense shall arise for each day or portion thereof in
which a violation occurs and for each section of this article that
is found to be violated. [See 53 P.S. § 66601(c.1)(5).]
D.
Tamaqua Borough may also enforce this article through an action in
equity brought in the Court of Common Pleas of Schuylkill County.
[See 53 P.S. § 66601 (c.1)(4).] In such an action, Tamaqua
Borough shall be entitled to recover all costs of litigation, including,
without limitation, expert and attorneys' fees.
E.
All monies collected for violation of this article shall be paid
to the Treasurer of Tamaqua Borough.
F.
Any person, corporation, or other entity that violates, or is convicted
of violating this article two or more times shall be permanently prohibited
from land applying sewage sludge in Tamaqua Borough. This prohibition
applies to that person's, corporation's, or other entity's parent,
sister, and successor companies, subsidiaries, and alter egos, and
to any person, corporation, or other entity substantially owned or
controlled by the person, corporation, or other entity (including
its officers, directors, or owners) that twice violates this article,
and to any person, corporation, or other entity that substantially
owns or controls the person, corporation, or other entity that twice
violates this article.
G.
Any Borough resident shall have the authority to enforce this article
through an action in equity brought in the Court of Common Pleas of
Schuylkill County. In such an action, the resident shall be entitled
to recover all costs of litigation, including, without limitation,
expert and attorneys' fees.
A.
Any person acting under the authority of a permit issued by the Department
of Environmental Protection, any corporation operating under a state
charter, or any director, officer, owner, or manager of a corporation
operating under a state charter, who deprives any Borough resident,
natural community, or ecosystem of any rights, privileges, or immunities
secured by this article, the Pennsylvania Constitution, the United
States Constitution, or other laws, shall be liable to the party injured
and shall be responsible for payment of compensatory and punitive
damages and all costs of litigation, including, without limitation,
expert and attorneys' fees. Compensatory and punitive damages paid
to remedy the violation of the rights of natural communities and ecosystems
shall be paid to Tamaqua Borough for restoration of those natural
communities and ecosystems.
B.
Any Borough resident shall have standing and authority to bring an action under this article's civil rights provisions, or under state and federal civil rights laws, for violations of the rights of natural communities, ecosystems, and Borough residents, as recognized by § 260-61F and G of this article.
This article shall be effective five days after the date of
its enactment, at which point the Ordinance shall apply to any and
all land applications of sewage sludge in Tamaqua Borough regardless
of the date of the applicable DEP permits.
The foundation for the making and adoption of this article is
the people's fundamental and inalienable right to govern themselves,
and thereby secure their rights to life, liberty, and pursuit of happiness.
Any attempts to use other units and levels of government to preempt,
amend, alter, or overturn this article, or parts of this article,
shall require the Borough Council to hold public meetings that explore
the adoption of other measures that expand local control and the ability
of residents to protect their fundamental and inalienable right to
self-government.
