[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:
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.
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.
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.
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 fire-fighting, 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 wastes, provided that an air curtain destructor is used and
approved by the Department of Environmental Protection's Regional
Air Quality Program office.
E.
A fire set solely for the cooking of food using conventional
equipment and fuels.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
A.
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.
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 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.
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 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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
