[HISTORY: Adopted by the Board of Supervisors
of the Township of Bern 5-5-2009 by Ord. No. 257-2009.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Code enforcement — See Ch. 8.
Fire company — See Ch. 15.
Building construction — See
Ch. 57.
Fire prevention — See Ch. 85.
Hazardous materials — See Ch. 98.
[1]
Editor's Note: This ordinance also repealed former Ch. 63,
Outdoor Burning, adopted 10-5-1999 by Ord. No. 182-1999.
This chapter shall be known and may be cited as the "Bern Township
Open Burning Ordinance of 2009."
The Board of Supervisors of the Township of Bern, under and
by virtue of and pursuant to the authority granted by the Commonwealth
of Pennsylvania pursuant to the Air Pollution Control Act, 35 P.S.
§ 4001, et seq., has hereby enacted and ordained this chapter.
Whereas, the Board of Supervisors of Bern 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
Bern Township, it is hereby declared the policy of Bern Township to
safeguard to the citizens of Bern 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 delineated 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.
Board of Supervisors of the Township of Bern.
An outdoor fire utilized for ceremonial or recreational purposes.
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 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.
Solid waste resulting from the construction or demolition
of buildings and other structures, including but not limited to wood,
plaster, metals, asphaltic substances, bricks, block and unsegregated
concrete.
A tract of land cultivated for the purpose of agricultural
production or devoted to the raising and breeding of domestic animals
and having a minimum lot size of 10 acres.
The Fire Marshal, Assistant Fire Marshal, Code Enforcement
Officer; police officers or any other person so appointed and designated
by the Board of Supervisors of the Township of Bern.
Any device specifically designed for the destruction by burning
of refuse, sewage sludge or any other combustible material.
Leaves, garden residue, shrubbery, tree trimmings and similar
materials, but not including grass clippings.
The Township of Bern.
Garbage, refuse, industrial lunchroom or office waste and
other materials, including solid, semi-solid, liquid or contained
gaseous material resulting from operation of residential, municipal,
commercial or institutional establishments and from community activities.
Material derived or formed from inanimate objects, other
than vegetable, such as tin cans, glass crockery, metals, plastic
and similar materials.
The burning of any materials wherein products of combustion
are emitted directly into the ambient air without passing through
a stack or chimney from an enclosed chamber. For the purposes of this
chapter, a chamber shall be regarded as enclosed when, during the
time combustion occurs, only apertures, ducts, stacks, flues or chimneys
necessary to provide combustion air and permit the escape of exhaust
gas are open.
Material derived from living organisms such as wood, paper
and yard waste.
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.
Any outdoor fire utilized to cook food for human consumption.
Any material that is required to be recycled in Bern Township
under the Pennsylvania Act 101,[2] including scrap lumber (nontreated/painted), yard waste
and leaves.
Waste, including, but not limited to, municipal, residual,
or hazardous wastes, including solid, liquid, semisolid or contained
gaseous materials as defined in 25 Pa. Code § 271.1.
Leaves, grass clippings, garden residue, tree trimmings,
chipped shrubbery and other vegetative material.
A.
Unlawful
burning; exceptions.
(1)
It shall be unlawful for any person to openly burn any material,
including the following, at any time in any zone within the Municipality:
household trash, books, magazines, newspapers, cardboard and/or any
items that are required to be recycled in Bern Township under Pennsylvania
Act 101,[1] including yard waste, leaves and scrap lumber or any vegetation,
plywood, drywall, plastic products, insulation materials, upholstered
furniture, solid waste and/or construction waste as defined by the
Pennsylvania Solid Waste Management Act[2] and 25 Pa. Code § 271.1, garbage, dead animals,
human and animal excrement, human and animal hair, rubber products,
including tires, hydrocarbon products or flammable liquids, asphalt
or tar shingles or roofing materials, bedding, foam rubber, nylon,
rayon, cotton, wool, polyester or other synthetic material, insulation
from copper or other wiring.
(2)
Except where the fire or burning operations result from:
(a)
An open burning 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. A permit is required as a prerequisite to any burning under
this subsection.
(b)
A 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 un-manufactured state on the premises of the
farm operation. A permit issued by the Fire Official is required as
a prerequisite to any burning under this subsection.
(f)
A fire set solely for cooking food.
(g)
A fire set solely for recreational or ceremonial purposes.
B.
Open burning as permitted by § 63-5A(2) hereof shall be subject to the following regulations:
(1)
Any such open burning is located at least 50 feet or more from any
building, structure or combustible materials and shall not occur within
the right-of-way of any street, avenue, road or other public or private
way and shall not create a fire hazard. Fires in approved containers
shall be permitted, provided that such fires are not less than 20
feet from any structure.
(2)
All fires in open burning must be guarded or attended to by one or
more responsible adult persons, being individuals 18 or over, at all
times until such fire and open burning has been extinguished.
(3)
Yard waste must originate from the same property, the person shall
not accumulate, receive or accept for open burning, nor shall any
person openly burn on his/her land, or on the land occupied by him/her,
any materials originating on or transferred or moved from the land
of any other person.
(4)
Nonorganic or recyclable material, as defined in § 63-4, or any other combustibles which may create large amounts of smoke, may not be openly burned.
(5)
Any such open burning shall be permitted between the hours of 8:00
a.m. and 4:00 p.m. No burning or smoldering shall occur outside the
above time period.
C.
Suspension of open burning. Any Fire Official may suspend the above
regulations at any time and from time to time when it is determined
by any of them that, in their opinions, any of the following conditions
exist:
(1)
Smoke, embers and/or ash emission cause damage to property or vegetation
of adjacent properties.
(2)
Smoke, embers and/or ash emission are, or may be, offensive, objectionable
or deleterious to human or animal health.
(3)
Dry conditions or drought warrant a ban on all open burning, in which
case the Board of Supervisors of the municipality shall be so advised
in writing.
Outdoor fireplaces and outdoor cooking grills shall be permitted
upon private property within all zones of the Township solely for
the purpose of cooking foods. The following regulations shall apply:
A.
No person shall use outdoor fireplaces or outdoor cooking grills for the burning of material as outlined in § 63-5A(1) of this chapter.
B.
Outdoor
fireplaces and outdoor cooking grills shall not be used for such purposes
other than cooking food.
C.
Outdoor
cooking grills shall not be used indoors or in any enclosed areas
that are not properly ventilated, e.g., garages, etc.
Outdoor patio stoves, chimineas or factory-built novelty stoves
shall be permitted outside residential private property within all
zones of Bern Township, provided that the following regulations apply:
A.
No persons shall use such patio stoves, chimineas or factory-built novelty stoves for the burning of any material outlined in § 63-5A(1) of this chapter.
B.
If smoke, ash or smell omitting from such patio stoves, chimineas
or factory-built novelty stoves become objectionable or offensive
to neighboring properties, the Fire Official may suspend the operation
of same.
Fireplaces or wood-burning or coal stoves shall be permitted
inside residential private property within all zones of Bern Township
solely for the purpose of heating the dwelling unit. The following
regulations shall apply:
A.
Only seasoned fire wood, coal or solid fuels recommended by the manufacturer
may be burned in such fireplaces, wood-burning or coal stoves or solid-fuel
heaters.
B.
No person may use such fireplaces, wood-burning or coal stoves or solid-fuel heaters for the burning of any material as outlined in § 63-5A(1).
C.
Such fireplaces, wood-burning or coal stoves or solid-fuel heaters
shall not be used for such purpose when, in the judgment of the Fire
Official, a fire hazard is created by such use and operation and/or
any danger is posed to the occupants therein or the neighboring buildings
and/or occupants.
D.
If the smoke, ashes and/or smell emitting from the chimney, stove
pipe or flue to the outside atmosphere are objectionable or offensive
to the general public, the operation of such fireplace, wood-burning
or coal stove or solid-fuel heater shall be suspended by the Fire
Official.
It shall be lawful to burn combustible rubbish and materials
within Bern Township by means of an enclosed outdoor or indoor incinerator
operated by chemical or thermal means, provided the incinerator is
attached to a proper stack or chimney and complies with the current
Bern Township ICC Codes, and provided the following regulations are
adhered to:
A.
The incinerator shall be the type approved by an authorized representative
of the Pennsylvania Department of Health and the Pennsylvania Department
of Environmental Protection. Both of the above departments shall give
evidence of approval in written certification of inspection and approval.
B.
All owners of property within Bern Township on or in which there
exists an incinerator shall advise the Township office of such incinerator
and the location of same.
Ashes, smoldering coals, wood and embers, or other material
liable to spontaneously ignite, shall not be deposited or allowed
to remain within 10 feet of any combustible materials but shall be
deposited in noncombustible containers. Rubbish of any kind shall
not be allowed to accumulate.
A.
The Township of Bern, through its authorized agents, shall have the
power and duty to enforce the provisions of this chapter.
B.
The Township of Bern 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 Bern
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 Bern finds that any person is in violation of any provision of
this chapter.
C.
The Township of Bern 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.
E.
The authority of the Township of Bern 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.
A.
Whenever the Fire Official finds that open burning is occurring in the Township of Bern, other than those exceptions noticed in § 63-5 above, the Fire Official may order the owner or operator to take corrective action in a manner satisfactory to the Township of Bern, or the Fire Official may order the owner or operator to allow access to the land by the Fire Official 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, the Township of Bern 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 § 63-14 of this chapter
Any person who violates any provision of this chapter or any
order of the Township of Bern issued pursuant to this chapter commits
a summary offense and shall, upon conviction, be sentenced to pay
a fore 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 Township of Bern 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
Township of Bern Counsel is hereby authorized to prosecute these offenses.
For purposes of this section, a summary offense may be prosecuted
before any district justice in this Township of Bern. 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, the Township of Bern 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 Township of Bern shall consider the willfulness
of the violation; damage to air, soil, water or other natural resources
of the Township of Bern or their uses; financial benefit to the person
in consequence of the violation; deterrence of future violations;
cost to the Township of Bern; 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.
B.
When the Township of Bern 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 (quasi judicial body) 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 (quasi judicial body) 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 Township of Bern. 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 (quasi judicial body) 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
tights 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 (quasi judicial body) shall conduct
a hearing to consider the appellant's alleged inability to pay
within 30 days of the date of the appeal. The (quasi judicial body)
may waive the requirement to prepay the civil penalty or to post an
appeal bond if the appellant demonstrates and the (quasi judicial
body) finds that the appellant is financially unable to pay. The (quasi
judicial body) 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 Township of Bern
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 § 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 Township of Bern. 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 Township of Bern, 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 Township of Bern;
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 the Township of Bern or its personnel in their performance
of any duty hereunder, including denying the Fire Official 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 unworn 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 the Township of Bern to result from
the source.
A violation of this chapter or of any order issued by the Township of Bern under this chapter shall constitute a public nuisance. The Township of Bern 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 Township of Bern may recover the expenses of abatement following the process for assessment and collection of a civil penalty contained in § 63-14 of this chapter. 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.
