[HISTORY: Adopted by the Board of Supervisors of the Township
of North Whitehall 10-15-2008 by Ord. No. 2008-2. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "North Whitehall
Township Air Pollution Control Ordinance of 2008."
The Board of Supervisors of North Whitehall Township, under
and by virtue of and pursuant to the authority granted by the Air
Pollution Control Act, as amended, 35 P.S. § 4012 et seq.,
the Pennsylvania Municipalities Planning Code (MPC), and the Second
Class Township Code Act of May 1, 1933 (P.L. 103, No. 69), reenacted
and amended November 9, 1995 (P.L. 350, No. 60), as amended,[1] do hereby enact and ordain this chapter.
[1]
Editor's Note: See 53 P.S. § 10101 et seq. and 53
P.S. § 65101 et seq., respectively.
Whereas the Board of Supervisors of North Whitehall Township
has determined that air pollution from open burning may be detrimental
to the health, comfort, living conditions, welfare, and safety of
the citizens of North Whitehall Township, it is hereby declared to
be the policy of North Whitehall Township to safeguard the citizens
of North Whitehall Township from such air pollution.
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:
A geographic area of this commonwealth as delimited in Attachment
A.[1]
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.
North Whitehall Township Board of Supervisors.
The act of consuming by fire; to flame, char, scorch, or
blaze. As used in this chapter, "smoldering" shall have the same meaning
as burning and any smoldering shall be deemed a burning.
Trees, shrubs, and other native vegetation which are cleared
from land during or prior to the process of construction. The term
does not include demolition wastes and dirt-laden roots.
The process by which organic solid waste is biologically
decomposed under controlled anaerobic or aerobic conditions to yield
a humus-like product.
Waste which is generated from the normal occupancy of a structure
occupied solely as a dwelling by two families or less. The term does
not include appliances, carpets, demolition waste (insulation, shingles,
siding, etc.), furniture, mattresses or box springs, paint, putrescible
waste, solvents, tires, or treated wood.
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.
A fire, the air contaminants from which are emitted directly
into the outdoor atmosphere and not directed thereto through a flue.
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.
Leaves, grass clippings, garden residue, tree trimmings,
chipped shrubbery, and other vegetative material.
[1]
Editor's Note: Attachment A, included as an attachment to
this chapter, contains descriptions of Pennsylvania air basins. North
Whitehall Township does not appear in those definitions.
After November 1, 2008, no person may permit the open burning
of material with the exception of the following:
A.
A fire set to prevent or abate a fire hazard, when approved by the
Department of Environmental Protection's Regional Air Quality Program
office and set by or under the supervision of a public officer.
B.
Any fire set for the purpose of instructing personnel in firefighting,
when approved by the Department of Environmental Protection's Regional
Air Quality Program office.
C.
A fire set for the prevention and control of disease or pests, when
approved by the Department of Environmental Protection's Regional
Air Quality Program office.
D.
A fire set for the purpose of burning clearing and grubbing waste.
If within an air basin, an air curtain destructor must be used and
must be approved by the Department of Environmental Protection's Regional
Air Quality Program office.
E.
A fire set in conjunction with the production of agricultural commodities
in their unmanufactured state on the premises of the farm operation.
F.
A fire set solely for cooking food, recreational or ceremonial purposes.
Fires set solely for cooking food, recreational or ceremonial purposes:
[Amended 3-5-2018 by Ord.
No. 2018-1]
(1)
Shall be constantly attended
by a competent adult until the fire is completely extinguished. This
shall include the extinguishment of embers.
(2)
Water in the form of a garden hose or water-filled buckets or a fire
extinguisher shall be on hand at all times while a fire is burning.
The water or extinguisher shall be of adequate size and volume to
stop any spread of fire beyond the fire area.
(4)
Materials permitted to be burned shall consist of charcoal, coal
or natural tree firewood only. Materials such as dimensional lumber,
pressure-treated lumber, railroad ties, pallets, yard waste, leaves,
dried grass and brush, trash and rubbish, newspaper and cardboard
and other similar materials may not be burned.
(5)
The total fuel area of the fire shall not exceed six feet in diameter
and shall not be more than four feet in height.
(6)
Fires shall not be placed in a metal barrel; however, commercial
fire pits or stone/masonry pits not exceeding six feet in diameter
are permitted.
A.
The North Whitehall Township Zoning and/or Code Enforcement Officer,
or any other duly authorized agent, shall have the power and duty
to enforce the provisions of this chapter.
B.
North Whitehall Township 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 open burning which, in the course of its occurrence,
is in violation of any provision of this chapter; 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 the Township of North
Whitehall finds that any condition existing in or on the facility
or source involved is causing or contributing to open burning or if
the Township of North Whitehall finds that any person is in violation
of any provision of this chapter.
C.
North Whitehall Township may, in its order, require compliance with
such conditions as are necessary to prevent or abate open burning
or effect the purposes of this chapter.
D.
An order issued under this section shall take effect upon notice,
unless the order specifies otherwise. An appeal to the Zoning Hearing
Board of the Township of North Whitehall order shall not act as a
supersedeas; provided, however, that, upon application and for cause
shown, the Zoning Hearing Board of the Township of North Whitehall
may issue such a supersedeas under rules established by North Whitehall
Township.
E.
The authority of North Whitehall Township to issue an order under
this section is in addition to any remedy or penalty which may be
imposed pursuant to this chapter. The failure to comply with any such
order is hereby declared to be a public nuisance.
F.
The Township
Fire Marshal shall declare a fire warning or burning ban for North
Whitehall Township when he or she deems the conditions are appropriate
and inform the Township Manager of said decision so that it may be
circulated and communicated throughout the Township.
[Added 5-3-2021 by Ord.
No. 2021-2]
A.
Whenever the Zoning and/or Code Enforcement Officer finds that open burning is occurring in North Whitehall Township other than those exceptions noted in § 176-5 above, the Zoning and/or Code Enforcement Officer may order the owner or operator to take corrective action in a manner satisfactory to North Whitehall Township or the Zoning and/or Code Enforcement Officer may order the owner or operator to allow access to the land by the Zoning and/or Code Enforcement Officer or a third party to take such 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, North Whitehall 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 § 176-9 of this chapter.
Any person who violates any provision of this chapter or any
order of North Whitehall Township 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 North Whitehall 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 chapter, and the Solicitor is hereby authorized to prosecute
these offenses. For purposes of this section, a summary offense may
be prosecuted before any Magisterial District Judge having jurisdiction
in or for North Whitehall 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 chapter or any
order issued pursuant to this chapter, North Whitehall Township 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, North Whitehall Township shall consider
the willfulness of the violation; damage to air, soil, water, or other
natural resources of North Whitehall Township or their uses; financial
benefit to the person in consequence of the violation; deterrence
of future violations; cost to North Whitehall Township; 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.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B.
When North Whitehall Township 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 Zoning Hearing Board 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 Zoning Hearing Board
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 North Whitehall Township. 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 Zoning Hearing Board 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 Zoning Hearing Board shall conduct
a hearing to consider the appellant's alleged inability to pay within
30 days of the date of the appeal. The Zoning Hearing Board may waive
the requirement to prepay the civil penalty or to post an appeal bond
if the appellant demonstrates and the Zoning Hearing Board finds that
the appellant is financially unable to pay. The Zoning Hearing Board
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 North Whitehall Township 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 North Whitehall 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 civil judgment or order docket, at no
cost to North Whitehall 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 chapter or to fail
to comply with any order or other requirement of North Whitehall 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 North Whitehall Township or its personnel in their
performance of any duty hereunder, including denying the Zoning and/or
Code Enforcement Officer access to the source or facility; or to violate
the provisions of 18 Pa.C.S.A. § 4903 (relating to false
swearing) or 4904 (relating to unsworn falsification to authorities)
in regard to papers required to be submitted under this chapter. The
owner or operator of an open burning source shall not allow pollution
of the air, water, or other natural resources of North Whitehall Township
to result from the source.
A violation of this chapter or of any order issued by the North Whitehall Township under this chapter shall constitute a public nuisance. North Whitehall 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, North Whitehall Township may recover the expenses of abatement following the process for assessment and collection of a civil penalty contained in § 176-9. 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.
Ordinance No. 2007-14 previously enacted is hereby repealed.
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 Board of Supervisors
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 first day of November
2008.
The Board of Supervisors, and its agents, officials, and representatives,
shall not under any circumstances be liable or responsible for damages
caused by any person or property by reason of the issuance of any
permit under the provisions of this chapter or by reason of the conduct
of any burning activity in compliance or noncompliance with the terms
and provisions hereof. The person, persons, company or companies responsible
for any such fire and the permit holder, if any, shall bear sole liability
for any damages caused as a result thereof.
