[HISTORY: Adopted by the Borough Council of the Borough of Millersville 9-23-1997 by Ord. No. 1997-5. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Millersville Borough Air Pollution Control Ordinance."
The Borough of Millersville has determined that air pollution from open burning may be detrimental to the health, comfort, living conditions, welfare and safety of the citizens of the Borough of Millersville, and it is hereby declared to be the policy of the Borough of Millersville to safeguard the citizens of Millersville 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:
- AIR CURTAIN DESTRUCTOR
- 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.
- 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.
- CLEARING AND GRUBBING WASTES
- 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 Council of the Borough of Millersville.
- OPEN BURNING
- A fire in which any material is burned in the open or in a receptacle from which contaminants 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 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.
After the effective date of this chapter, no person may permit the open burning of material, with the exception of the following:
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.
Any fire set for the purpose of instructing personnel in fire-fighting, when approved by the Department of Environmental Protection's Regional Air Quality Program office.
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.
A fire set for the purpose of burning clearing and grubbing wastes, provided that an air curtain destructor is used and approved by the Department of Environmental Protection's Regional Air Quality Program office.
A fire set solely for the cooking of food using conventional equipment and fuels.
The Council of the Borough of Millersville or any of its duly authorized agents shall have the power and duty to enforce the provisions of this chapter.
The Borough 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 Borough finds that any condition existing in or on the facility or source involved is causing or contributing to open burning or if the Borough finds that any person is in violation of any provision of this chapter.
The Borough 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.
An order issued under this chapter shall take effect upon notice, unless the order specifies otherwise. An appeal to the Council of said order shall not act as a supersedeas; provided, however, that, upon application, for cause shown, the Council may issue such a supersedeas under rules it has established.
The authority of the Borough of Millersville 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.
Whenever the Council or its duly authorized agent finds that open burning is occurring in the Borough, other than those exceptions noted in § 136-4 above, the Council or its duly authorized agent may order the owner or operator to take corrective action in a manner satisfactory to the Borough, or the Council or its duly authorized agent may order the owner or operator to allow them access to the land or by 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 may collect the amount in the same manner as civil penalties are assessed and collected, following the process for the assessment and collection of a civil penalty contained in § 136-8 of this chapter.
Any person who violates any provision of this chapter or any order of the Borough 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 payment of such fine, may be sentenced to imprisonment for 90 days for each separate offense. Employees of the Borough 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 Solicitor is hereby authorized to prosecute these offenses. A summary offense may be prosecuted before the Magisterial District Judge. There is no accelerate 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 other order issued pursuant to this chapter, the Borough 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 shall consider the willfulness of the violation; damage to air, soil, water or other natural resources of the Borough or their uses; financial benefit to the person in consequence of the violation; deterrence of future violations; cost to the Borough; the size of the source or facility; the compliance history of the source; the severity and duration of the violation; the 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 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 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 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 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.
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 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 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 Council shall conduct a hearing to consider the appellant's alleged inability to pay within 30 days of the date of the appeal. The Council may waive the requirement to prepay the civil penalty or to post an appeal bond if the appellant demonstrates and the Council finds that the appellant is financially unable to pay. The 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 an administrative hearing or after waiver of an administrative hearing shall be payable to the 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 § 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. 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, 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 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 Borough or its personnel in the performance of any duty hereunder, including denying the Council or its duly authorized agent 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 the Borough to result from the source.
A violation of this chapter or of any order issued by the Borough under this chapter shall constitute a public nuisance. The Borough 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 Borough may recover the expenses of abatement following the process for assessment and collection of a civil penalty contained in § 136-8. 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 a public nuisance shall be liable for the cost of abatement.