[HISTORY: Adopted by the Borough Council of the Borough of Pine Grove 11-12-2009 by Ord. No. 395. Amendments noted where applicable.]
This chapter shall be known and may be cited as the Pine Grove Borough Outdoor Wood-fired Boiler Ordinance of 2009.
The Council of the Borough of Pine Grove, under, and by virtue of and pursuant to the authority granted by the Borough Code Act of February 1, 1966, as amended does hereby enact and ordain this chapter.
Except as otherwise provided in § 182-6, this chapter applies to the installation and use of all outdoor wood-fired boilers within Pine Grove Borough.
This chapter does not apply to grilling or cooking using charcoal, wood, propane or natural gas in cooking or grilling appliances.
This chapter does not apply to burning in a stove, furnace, fireplace or other heating device within a building used for human or animal habitation.
This chapter does not apply to the use of propane, acetylene, natural gas, gasoline, or kerosene in a device intended for heating, construction or maintenance activities.
This chapter does not apply to patio wood burning units.
Whereas the Council of Borough of Pine Grove has determined that air pollution from outdoor wood-fired boilers may be detrimental to the health, comfort, living conditions, welfare, and safety of the citizens of Borough of Pine Grove, it is hereby declared to be the policy of Pine Grove Borough to safeguard the citizens of Pine Grove Borough from such air pollution. Research has indicated that outdoor wood-fired boilers cause emission problems that cross property lines. Smoke that stays close to the ground can easily be reached by humans working or playing outdoors. It penetrates neighboring buildings and also can cause problems with smoke visibility. An outdoor wood-fired boiler that supplies heat and/or hot water to residences are of special concern when compared to other outdoor burning and other transient sources of smoke. Outdoor wood-fired boilers operate eight to nine months of the year, and in some cases throughout the entire year. The fine particles in smoke have been recognized as a particular health concern because they lodge deep in the lungs and cannot be easily expelled. Health studies have shown a significant association between exposure to fine particles and cardiovascular problems such as angina, irritated eyes and lungs, trigger headaches, and worsen respiratory diseases such as asthma, emphysema and bronchitis and in the worst case can cause premature mortality. It is the intent of the Borough to regulate the installation, maintenance and operation of outdoor wood-fired boilers in the Borough so this air quality standard can be reasonably met.
The Pennsylvania Code, Title 25, Chapter 121, also prohibits air pollution. This chapter is specifically intended to prohibit any person within the Borough from operating any outdoor wood-fired boilers in a manner that the emissions are visible, malodorous or where air contaminates are detectable, outside the property of the person owning the appliance.
In accordance with the Borough Code Act of February 1, 1966 as amended, residences, commercial and industrial establishments situated within the Borough are entitled to clean air and environmental circumstances free of unreasonable dust, obnoxious odors, noxious fumes and smells, as well as an environment free of stored debris and storage of combustible fuels in adjacent or exposed exterior areas within densely populated areas.
This chapter shall provide regulations for the installation, replacement and operation of outdoor wood-fired boilers, primary purpose is to convert combustible fuel into a heat or energy source for interior spaces.
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:
- Air Pollution Control Act.
- CLEAN WOOD
- Natural wood that has no paint, stains, or other types of coatings, and natural wood that has not been treated with, including but not limited to, copper chromium arsenate, creosote, or pentachlorophenol.
- Borough Council, Township Board of Supervisors.
- United States Environmental Protection Agency.
- A city, incorporated town, township, Borough, county, municipal authority, or other public body created under State law having jurisdiction over the disposal of sewage, industrial wastes, or other wastes.
- OUTDOOR WOOD-FIRED BOILER
- Also known as outdoor wood-fired furnaces, outdoor wood-burning appliances, or outdoor hydronic heaters, water stoves, etc. A fuel-burning device:
- A. Designed to burn clean wood or other approved solid fuels;
- B. That the manufacturer specifies for outdoor installation or for installation in structures not normally intended for habitation by humans or domestic animals, including structures such as garages and sheds; and
- C. Which heats building space and/or water through the distribution, typically through pipes, of a fluid heated in the device, typically water or a mixture of water and antifreeze.
- 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.
- PHASE 2 OUTDOOR WOOD-FIRED BOILER
- An outdoor wood-fired boiler that has been certified or qualified by the EPA as meeting a particulate matter emission limit of 0.32 pounds per million British Thermal Units output and is labeled accordingly. Phase 2 outdoor wood-fired boiler models will be identified with a white hang tag.
- RESPONSIBLE OFFICIAL
- Person designated by the municipality to be responsible for the administration and enforcement of this chapter.
- Any vertical structure enclosing a flue or flues that carry off smoke or exhaust from a furnace, especially that part of a structure extending above a roof.
On or after November 12, 2009, an outdoor wood-fired boiler may be installed, used or operated in the Borough of Pine Grove only in accordance with the following provisions:
Particulate standard requirements for new outdoor wood-fired boilers. No person shall install an outdoor wood-fired boiler that is not a Phase 2 outdoor wood-fired boiler.
Setback requirements for new outdoor wood-fired boilers. No person shall install an outdoor wood-fired boiler unless it is installed at least 150 feet from the nearest property line.
Stack height requirements for new outdoor wood-fired boilers. No person shall install an outdoor wood-fired boiler unless it has a permanent attached stack with a minimum stack height of 10 feet above the ground that also extends at least two feet above the highest peak of any residence located less than 150 feet from the outdoor wood-fired boiler.
Stack height requirements for existing outdoor wood-fired boilers. No person shall use or operate an outdoor wood-fired boiler that was installed before November 12, 2009, unless it has a permanent attached stack with a minimum stack height of 10 feet above the ground that also extends at least two feet above the highest peak of any residence located less than 500 feet from the outdoor wood-fired boiler. However, if the existing outdoor wood-fired boiler is a Phase 2 outdoor wood-fired boiler, Subsection C will apply.
Fuel requirements for new and existing outdoor wood-fired boilers. No person that operates a new or existing outdoor wood-fired boiler shall use a fuel other than the following:
Prohibited fuels for new and existing outdoor wood-fired boilers. No person shall burn any of the following items in an outdoor wood-fired boiler:
Treated or painted wood.
Lawn clippings or yard waste.
Material containing plastic.
Material containing rubber.
Waste petroleum products.
Paints and paint thinners.
Any hazardous waste.
Glossy colored paper.
Construction and demolition debris.
Prohibition of operation for new and existing outdoor wood-fired boilers. No person shall use or operate a new or existing outdoor wood-fired boiler between the dates of May 1 and September 30.
Regulatory requirements for new and existing outdoor wood-fired boilers. No person shall use or operate a new or existing outdoor wood-fired boiler unless it complies with all existing state and local regulations. Some regulations of this commonwealth that could apply include:
25 Pa. Code § 121.7 - Prohibition of Air Pollution.
25 Pa. Code § 123.1 - Prohibition of Certain Fugitive Emissions.
25 Pa. Code § 123.31 - Odor Emissions.
25 Pa. Code § 123.41 - Visible Emissions.
Section 8 of the APCA, 35 P.S. § 4008 - Unlawful Conduct.
Section 13, of the APCA, 35 P.S. § 4013 - Public Nuisances.
Permits for new and existing outdoor wood-fired boilers. No person shall use or operate an outdoor wood-fired boiler unless a permit is obtained from the responsible official. The permit must be obtained by the owner of the property where the outdoor wood-fired boiler will be located. The cost of the permit shall be $50. The penalty for not obtaining a permit shall be $300. The Borough of Pine Grove maintains the ability to suspend permits if weather conditions warrant. A violation of permit conditions is a violation of this chapter. Any violation of the chapter or permit conditions shall void the permit.
The Pine Grove Borough Code Enforcement Officer shall have the power and duty to enforce the provisions of this chapter.
The Pine Grove Borough Council 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 use of outdoor wood-fired boilers, which is in violation of any provision of this chapter; orders to take corrective action or to abate a public nuisance; or orders requiring production of information. Such an order may be issued if Pine Grove Borough Council finds that any person is in violation of any provision of this chapter.
The Pine Grove Borough Council may, in its order, require compliance with this chapter.
An order issued under this section shall take effect upon notice, unless the order specifies otherwise. An appeal to the Pine Grove Borough Council's order shall not act as a supersedeas, provided, however, that upon application and for cause shown, a supersedeas under rules established may be issued.
The authority of the Pine Grove Borough Council to issue an order under this section is in addition to any remedy or penalty that may be imposed pursuant to this chapter. The failure to comply with any such order is hereby declared to be a public nuisance.
Whenever the Pine Grove Borough Code Enforcement Officer finds that illegal operation of an outdoor wood-fired boiler is occurring in the Borough of Pine Grove, in contravention of the requirements of § 182-6 above, the Pine Grove Borough Code Enforcement Officer may order the owner or operator to take corrective action in a manner satisfactory to the Pine Grove Borough Council, or the Pine Grove Borough Code Enforcement Officer may order the owner or operator to allow access to the land by the Pine Grove Borough Code Enforcement Officer or a third party to take such action.
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 Borough of Pine Grove 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 § 182-10 of this chapter.
Any person who violates any provision of this chapter or any order of the Borough of Pine Grove issued pursuant to this chapter 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 the Borough of Pine Grove 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 chapter, and the Borough of Pine Grove counsel is hereby authorized to prosecute these offenses. For purposes of this section, a summary offense may be prosecuted before any Magisterial District Judge in the Borough of Pine Grove. There is no accelerated rehabilitative disposition authorized for a summary offense.
In addition to proceeding under any other remedy available at law or in equity for a violation of a provision of this chapter or any order issued pursuant to this chapter, the Borough of Pine Grove 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 $25,000 per day for each violation. In determining the amount of the penalty, the Borough of Pine Grove shall consider the willfulness of the violation; damage to air, soil, water, or other natural resources of the Borough of Pine Grove or their uses; financial benefit to the person in consequence of the violation; deterrence of future violations; cost to the Pine Grove Borough; 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.
When the Borough of Pine Grove 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 Pine Grove Borough Council within the thirty-day period for placement in an escrow account with the State Treasurer or any Commonwealth bank, or post an appeal bond to the Pine Grove Borough Council 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 Borough of Pine Grove. 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 Pine Grove Borough Council shall, within 30 days, remit the appropriate amount to the person with any interest accumulated by the escrow deposit. 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 Pine Grove Borough Council shall conduct a hearing to consider the appellant's alleged inability to pay within 30 days of the date of the appeal. The Pine Grove Borough Council may waive the requirement to prepay the civil penalty or to post an appeal bond if the appellant demonstrates and the Pine Grove Borough Council finds that the appellant is financially unable to pay. The Pine Grove Borough Council shall issue an order within 30 days of the date of the hearing to consider the appellant's alleged inability to pay. The amount assessed after administrative hearing or after waiver of administrative hearing shall be payable to the Pine Grove Borough and 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 a debt of such person, as may be appropriate, to the Borough of Pine Grove. 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 civil judgment or order docket, at no cost to the Borough of Pine Grove, 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 chapter or to fail to comply with any order or other requirement of the Borough of Pine Grove; or to cause a public nuisance; or to hinder, obstruct, prevent, or interfere with the Borough of Pine Grove or its personnel in their performance of any duty hereunder, including denying the Pine Grove Borough Code Enforcement Officer access to the source or facility.
A violation of this chapter or of any order issued by the Borough of Pine Grove under this chapter shall constitute a public nuisance. The Borough of Pine Grove shall have the authority to order any person causing a public nuisance to abate the public nuisance. In addition, when abating a public nuisance, the Pine Grove Borough may recover the expenses of abatement following the process for assessment and collection of a civil penalty contained in § 182-10. Whenever the nuisance is maintained or continued contrary to this chapter or any order issued pursuant to this chapter, the nuisance may be abatable in the manner provided by this chapter. Any person who causes the public nuisance shall be liable for the cost of abatement.
All other ordinances or parts thereof which are in conflict with this chapter are hereby repealed.
The provisions of this chapter are severable, and if any section, clause, sentence, part, or provision thereof shall be held illegal, invalid, or unconstitutional by any court of competent jurisdiction, such decision of the court shall not affect or impair the remaining sections, clauses, sentences, parts, or provisions of this chapter. It is hereby declared to be the intent of the Pine Grove Borough Council that this chapter would have been adopted if such illegal, invalid, or unconstitutional section, clause, sentence, part, or provision had not been included herein.
This chapter shall become effective on the 12th day of November, 2009.