[Adopted 5-1-2007 by Ord.
No. 620]
The name of this article shall be the "Tamaqua Borough Corporate
Waste and Local Control Ordinance."
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. (See 25
Pa. Code Chapter 271, Subchapter A, § 271.1.)
Tamaqua Borough in Schuylkill County, Pennsylvania, its Borough
Council, or its representatives or agents.
Waste, defined under Title 25, § 271.1 of the Pennsylvania
Code, which results from the production or use of antineoplastic agents
used for the purpose of inhibiting or stopping the growth of malignant
cells or killing malignant cells.
Waste, defined under Title 25, § 287.1 of the Pennsylvania
Code, including fly ash, bottom ash or boiler slag resulting from
the combustion of coal, that is or has been beneficially used, reused
or reclaimed for a commercial, industrial or governmental purpose.
The term includes such materials that are stored, processed, transported
or sold for beneficial use, reuse or reclamation. For purposes of
this article, the term also includes fly ash, bottom ash or boiler
slag resulting from the combustion of coal, that is not and has not
been beneficially used, reused or reclaimed for a commercial, industrial
or governmental purpose. This definition explicitly does not include
individually generated residential coal ash on residential premises.
Waste, defined under Title 25, § 271.1 of the Pennsylvania
Code, which results from the construction or demolition of buildings
and other structures, including, but not limited to, wood, plaster,
metals, asphaltic surfaces, bricks, block and unsegregated concrete.
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 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.
Material, defined under Title 25, § 271.1 of the
Pennsylvania Code, which is dredged or excavated from waters for the
direct or indirect purpose of establishing or increasing water depth,
or increasing the surface or cross-sectional area of a waterway and
which includes sediment, soil, mud, shells, gravel, or other aggregate.
A phrase that includes, but is not limited to, any activities
associated with the disposal of wastes within the Borough of Tamaqua.
Waste, defined under Title 25, § 271.1 of the Pennsylvania
Code, which includes garbage, refuse, or sludge from an industrial
or other wastewater treatment plant; sludge from a water supply treatment
plant or air pollution control facility; and other discarded material,
including solid, liquid, semisolid or contained gaseous material resulting
from municipal, commercial, industrial, institutional, mining, or
agricultural operations, and from community activities; or a combination
of the above, which, because of its quantity, concentration, or physical,
chemical or infectious characteristics may:
Cause or significantly contribute to an increase in mortality
or increase in morbidity in either an individual or the total population;
or
Pose a substantial present or potential hazard to human health
or the environment when improperly treated, stored, transported, disposed
of, or otherwise managed.
Waste, defined under Title 25, § 271.1 of the Pennsylvania
Code, which is generated in the diagnosis, treatment, immunization
or autopsy of human beings or animals, in research pertaining thereto,
in the preparation of human or animal remains for interment or cremation,
or in the production or testing of biologicals.
The Tamaqua Borough Corporate Waste and Local Control Ordinance.
Waste, defined under Title 25, § 271.1 of the Pennsylvania
Code, which contains polychlorinated biphenyls in any measurable concentration.
A natural person.
Materials, as defined under Title 25, § 271.1 of
the Pennsylvania Code, which spontaneously emit alpha or beta particles
or photons (gamma radiation) in the process of decay or transformation
of the atom's nucleus. This term shall include, but not be limited
to, source, special nuclear or byproduct material as defined by the
Atomic Energy Act of 1954.[1]
Waste, defined under Title 25, § 271.1 of the Pennsylvania Code, which includes solid, liquid, semisolid or contained gaseous materials resulting from industrial, mining, and agricultural operations; and sludge from an industrial, mining or agricultural water supply treatment facility, wastewater treatment facility or air pollution control facility, if not hazardous. This definition explicitly excludes "sewage sludge," or "sludge" as defined by Ch. 260, Sewers and Sewage Disposal, Art. VI, Sewage Sludge.
Any limited partnership, limited liability partnership, business
trust, or limited liability company organized under the laws of any
state of the United States or any country. A syndicate shall not include
general partnerships, except general partnerships in which corporations
or other limited liability business entities are partners.
[1]
Editor's Note: See 42 U.S.C. § 2011 through 2394.
This article is adopted and enacted pursuant to the right of
self-government of the residents of Tamaqua, and by the authority
granted to the Borough by all relevant state and federal laws, including,
but not limited to, the following:
A.
The Declaration of Independence, which declares that governments
are instituted to secure people's rights, and that government derives
its just powers from the consent of the governed.
B.
The Ninth Amendment to the United States Constitution, which declares,
"The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people."
C.
The Tenth Amendment to the United States Constitution, which declares,
"The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively,
or to the people."
D.
The Pennsylvania Constitution, Article 1, § 2, which declares
that "All power is inherent in the people, and all free governments
are founded on their authority and instituted for their peace, safety,
and happiness."
E.
The Pennsylvania Constitution, Article 1, § 27, which declares
that "The people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic values
of the environment."
F.
The Borough Code, Chapter 12, Section 1202(5),[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 the beauty,
convenience, comfort and safety of the Borough."
[1]
Editor's Note: See 8 Pa.C.S.A. § 1202(5).
G.
The Borough Code, Chapter 12, § 1202(20)(i)(A), 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."
H.
The Borough Code, Chapter 12, § 1203, 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."
The general purpose of this article is to recognize that corporations
engaged in certain types of waste storage, "beneficial use" and/or
waste disposal within the Borough constitute a threat to the health,
safety, welfare, and rights of the residents of Tamaqua Borough due
to the limited liability of those corporations, which may prevent
full recovery for damages in the event of injuries caused to Borough
residents. That limited liability privilege shields and protects the
individuals operating the corporation, and thus serves to thwart any
deterrent effect from lawsuits brought to remedy injuries caused by
those persons using the corporation to engage in waste disposal. The
Borough of Tamaqua declares that persons using corporations to store
or dump dredged material, coal ash, sewage sludge, construction and
demolition (C&D) waste, radioactive material, and other waste
deemed by the Borough to be hazardous, toxic, or dangerous, place
the residents of the Borough at increasing risk, due to the harmful
and dangerous composition of those wastes. The Borough of Tamaqua
also declares that corporations, engaging in waste disposal in any
neighboring municipality, that causes harm to residents of the Borough
of Tamaqua, shall be held strictly liable for the migration of toxic
and hazardous contaminants across municipal borders. The Borough of
Tamaqua also declares that waste management, "beneficial use" of waste,
waste disposal and mine "reclamation" corporations increasingly determine
waste policy in the commonwealth and that the Borough must take affirmative
steps to subordinate the powers of those corporations to the will
of the majority within the Borough of Tamaqua.
Anyone interpreting, implementing, or applying this article shall give priority to the findings and purposes stated in § 273-14 over such accounting and business terms characterized as "economy," "efficiency" and "scheduling factors."
A.
It shall be unlawful for any person, corporation, or other entity
to use a corporation or syndicate to engage in the storage, "beneficial
use," land application, or disposal of hazardous waste, coal ash,
residual waste or materials derived from residual waste, dredged material,
or PCB-containing waste, as those terms are defined within Title 25,
Chapter 271 et seq., and Chapter 287 et seq. of the Pennsylvania Code,
the Atomic Energy Act of 1954,[1] and the provisions of this article, within the Borough
of Tamaqua. It shall be unlawful for any person, corporation, or other
entity to use a corporation or syndicate to engage in the "beneficial
use," land application, or disposal of construction and demolition
(C&D) waste, chemotherapeutic waste, infectious waste, or radioactive
material as those terms are defined within Title 25, Chapter 271 et
seq., of the Pennsylvania Code, the Atomic Energy Act of 1954, and
the provisions of this article, within the Borough of Tamaqua.
[1]
Editor's Note: See 42 U.S.C.A. § 2011 through 2394.
B.
It shall be unlawful for any person to assist a corporation to engage
in the storage, "beneficial use," land application, or disposal of
hazardous waste, coal ash, residual waste or materials derived from
residual waste, dredged material, or PCB-containing waste, as those
terms are defined within Title 25, Chapter 271 et seq., and Chapter
287 et seq. of the Pennsylvania Code, the Atomic Energy Act of 1954,
and the provisions of this article, within the Borough of Tamaqua.
It shall be unlawful for any person to assist a corporation to engage
in the "beneficial use," land application, or disposal of construction
and demolition (C&D) waste, chemotherapeutic waste, infectious
waste, or radioactive material as those terms are defined within Title
25, Chapter 271 et seq., of the Pennsylvania Code, the Atomic Energy
Act of 1954, and the provisions of this article, within the Borough
of Tamaqua.
C.
It shall be unlawful for any corporation to engage in the storage,
"beneficial use," land application, or disposal of hazardous waste,
coal ash, residual waste or materials derived from residual waste,
dredged material, or PCB-containing waste, as those terms are defined
within Title 25, Chapter 271 et seq., and Chapter 287 et seq. of the
Pennsylvania Code, the Atomic Energy Act of 1954, and the provisions
of this article, within the Borough of Tamaqua. It shall be unlawful
for any corporation to engage in the "beneficial use," land application,
or disposal of construction and demolition (C&D) waste, chemotherapeutic
waste, infectious waste, or radioactive material as those terms are
defined within Title 25, Chapter 271 et seq., of the Pennsylvania
Code, the Atomic Energy Act of 1954, and the provisions of this article,
within the Borough of Tamaqua.
D.
It shall be unlawful for any director, officer, owner, or manager
of a corporation to use a corporation to engage in the storage, "beneficial
use," land application, or disposal of hazardous waste, coal ash,
residual waste or materials derived from residual waste, dredged material,
or PCB-containing waste, as those terms are defined within Title 25,
Chapter 271 et seq., and Chapter 287 et seq. of the Pennsylvania Code,
the Atomic Energy Act of 1954, and the provisions of this article,
within the Borough of Tamaqua. It shall be unlawful for any director,
officer, owner, or manager of a corporation to use a corporation to
engage in the "beneficial use," land application, or disposal of construction
and demolition (C&D) waste, chemotherapeutic waste, infectious
waste, or radioactive material as those terms are defined within Title
25, Chapter 271 et seq., of the Pennsylvania Code, the Atomic Energy
Act of 1954, and the provisions of this article, within the Borough
of Tamaqua.
E.
Within the Borough of Tamaqua, corporations engaged in the storage,
"beneficial use," land application, or disposal of hazardous waste,
coal ash, residual waste, dredged material, PCB-containing waste,
or radioactive material as those terms are defined within Title 25,
Chapter 271 et seq. and Chapter 287 et seq., of the Pennsylvania Code,
the Atomic Energy Act of 1954, and the provisions of this article,
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. Nor shall they be afforded the protections of the Contracts
Clause or Commerce Clause of the United States Constitution, or similar
provisions from the Pennsylvania Constitution, within the Borough
of Tamaqua. Within the Borough of Tamaqua, corporations engaged in
the "beneficial use," land application, or disposal of construction
and demolition (C&D) waste, chemotherapeutic waste, infectious
waste, as those terms are defined within Title 25, Chapter 271 et
seq. and Chapter 287 et seq. of the Pennsylvania Code, the Atomic
Energy Act of 1954, and the provisions of this article, 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. Nor shall they be afforded the protections of the Contracts
Clause or Commerce Clause of the United States Constitution, or similar
provisions from the Pennsylvania Constitution, within the Borough
of Tamaqua.
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. The residents of Tamaqua Borough possess
a fundamental and inalienable right to self-government and a republican
form of government.
H.
Any corporation engaging in, or planning to engage in, the storage,
"beneficial use" or disposal of waste in violation of this article
shall not possess limited liability attributes within the Borough
of Tamaqua for the purposes of the enforcement of this article. Directors,
officers, owners, and/or managers of that corporation shall be personally
liable for violations of this article.
I.
Persons using corporations to engage in the types of waste storage,
"beneficial use" or waste disposal addressed by this article in a
neighboring municipality shall be strictly liable for all harms caused
to the health, safety and welfare of the residents of Tamaqua Borough
from those activities, and for all harms caused to ecosystems and
natural communities within Tamaqua Borough.
J.
No permit, license, privilege or charter issued by any state or federal
regulatory agency, commission or board to any person or any corporation
operating under a state charter, or any director, officer, owner,
or manager of a corporation operating under a state charter, which
would violate the provisions of this article or deprive 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 deemed valid
within the Borough of Tamaqua. Additionally, any employee, agent or
representative of any state or federal regulatory agency, commission
or board who issues a permit, license, privilege or charter to any
person or any corporation operating under a state charter, or any
director, officer, owner, or manager of a corporation operating under
a state charter, which would violate the provisions of this article
or deprive 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
the Borough of Tamaqua for restoration of those natural communities
and ecosystems.
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.
B.
Any person who violates or permits a violation of this article shall,
upon conviction in a summary proceeding under the Pennsylvania Rules
of Criminal Procedure, be guilty of a summary offense and shall be
punishable by a fine of not more than $1,000, plus court costs and
reasonable attorneys' fees incurred by the Borough in the enforcement
proceedings. Upon judgment against any person by summary conviction,
or by proceedings by summons on default of the payment of the fine
or penalty imposed and the costs, the defendant may be sentenced and
committed to the Schuylkill County correctional facility for a period
not exceeding 30 days.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
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.
D.
Tamaqua Borough may also enforce this article through an action in
equity brought in the Court of Common Pleas of Schuylkill County.
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 engaging in business 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 any section
of 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 the Borough of Tamaqua 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, or Borough residents, as recognized by the
provisions of this article.
The foundation for the making and adoption of this law 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.
The Borough Council of Tamaqua Borough shall administer this
article.
