BOROUGH OF OHIOPYLE FAYETTE COUNTY, PENNSYLVANIA ORDINANCE NO. 3_OF2024  AN ORDINANCE OFTHE BOROUGH OF OHIOPYLE, FAYETTE COUNTY, PENNSYLVANIA. REGULATING AND PROHIBITING BURNING WITHTHE BOROUGH OF OHIOPYLE, WITH CERTAIN SPECIFIC CONTROLLED EXCEPTIONS: AND PRESCRIBING PENALTIES FOR VIOLATIONS THEREON. WHEREAS, the Borough ofC Ohiopyle 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 Pennsylvania Borough Code do hereby enact and ordain this chapter in the interests of providing for the public health, safety and welfare of the  citizens and guests within the Borough; and  WHEREAS, the Borough Council for the Borough of Ohiopyle has determined that air pollution from open burning may be detrimental to the health, comfort, living conditions, welfare, and safety oft the citizens, patrons and guests of Ohiopyle Borough, it is hereby declared to be the policy oft thel BoroughofOhiopylet to safeguard the citizens ofthel Borough from such air pollution;  and  WHEREAS, the Council ofthe Borough of Ohiopyle believes it to be in the best interests of the Borough, its residents therein and the public at large to enact an Ordinance to regulate  burning within the Borough.  NOW THEREFORE, be it ordained and enacted by the Council of the Borough of  Ohiopyle, and iti is hereby ordained and enacted as follows:  Section 1-7 Title.  This Ordinance shall be known and may be cited as the' BoroughofOhiopyle Air Pollution  Control Ordinance of 2024." Section 2-1 Definitions:  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 BASIN  A geographic area of this commonwealth, which encompasses the Borough of Ohiopyle as  delimited in Attachment A. 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. AUTHORIZED AGENT  The Borough of Ohiopyle Secretary, Council President, Code Enforcement Officer, Borough Fire Chief, or such other agent ofthe Borough authorized by the Ohiopyle Borough Council to enforce  the provisions oft this ordinance.  BOROUGH BURNING  Shall mean the Borough of Ohiopyle, Fayette County, Pennsylvania.  Theactofconsuming by fire; toi flame, char, scorch, or blaze. As usedi int this chapter, 'smoldering" shall have the same meaning as burning and any smoldering shall be deemed al 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.  COMPOSTING  The process by which organic solid waste is biologically decomposed under controlled anaerobic  or aerobici conditions to yield a humus-like product.  DOMESTIC REFUSE  Waste which is generated from the normal occupancy ofas 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. MUNICIPALITY  A city, incorporated town, township, borough, county, municipal authority, or other public body created under state law havingjurisdiction over the disposal ofs sewage, industrial wastes, or other  wastes.    OPEN BURNING  A fire, the air contaminants from which are emitted directly into the outdoor atmosphere and not  directed thereto through a flue.  PERSON  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.  YARD WASTE material.  Leaves, grass clippings, garden residue, tree trimmings, chipped shrubbery, and other vegetative  Section 1: Regulations. exception oft the following:  After August 1, 2024, no person may permit the open burning of material with the 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 ofaj public officer.  B. Any fire set for the purpose ofi 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 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  Department ofE Environmental Protection's Regional Air Quality Program office.  Environmental Protection's Regional Air Quality Program office. unmanufactured state on the premises ofthe farm operation.  E. A fire set in conjunction with the production of agricultural commodities in their    F. A fire set solely for cooking food, recreational or ceremonial purposes. Fires set 1. Shall be constantly attended to by a competent adult until the: fire is completely extinguished. This shall include the extinguishment of embers.  solely for cooking food, recreational or ceremonial purposes:  2. Water ini the form ofa garden hose or water-filled buckets or ai 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 offire beyond the fire area.  3. AFire Shall not be located:  a. Within 20: feet of a structure, vehicle or combustible materials. b. Within 20 feet of any bordering property line. Within the front yard setback ofany property. d. Within 20 feet ofa utility pole, transformer or fire hydrant.  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 oft the fire shall not exceed six feet in diameter and shall not be 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.  more than four feet in height.  Section 2: Enforcement orders.  A. The Borough of Ohiopyle Secretary, Council President, Code Enforcement Officer, Borough Fire Chief (collectively referred to as "Authorized Agent), or any other duly authorized agent, shall have the power and duty to enforce the provisions of this chapter.  B. The Borough of Ohiopyle may issue such orders as are necessary to aid in the enforcement of the provisions oft this chapter. These orders shall include, but shall not be limited to, orders requiring persons to cease unlawful open burning which, ini the course ofits occurrence, is in violation of any provision ofthis 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 ofinformation. Such an order may be issued ift the Borough of Ohiopyle finds that any condition existing in or on the facility or source involved is    causing or contributing to open burning or ift thel Borough of Ohiopyle finds that any person is in  violation of any provision oft this chapter.  C. The Borough of Ohiopyle 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 Council ofthe Borough of Ohiopyle order shall not act asa supersedeas; provided, however, that, upon application and for cause shown, the Council oft the Borough of Ohiopyle may issue such a supersedeas under rules established by Borough of  Ohiopyle.  E. The authority of Borough of Ohiopylet to issue an order under this section isi 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 Borough Fire Marshal shall declare ai fire warning or burning ban for Borough of Ohiopyle when he or she deems the conditions are appropriate and inform the Borough of said decision sO that it may be circulated and communicated throughout Borough.  Section 3: Responsibility of owners and operators.  A. Whenever the Boroughs authorized agent finds that open burning is occurring in Borough ofOhiopyle other than those exceptions noted in above, the authorized agent may order the owner or operator to take corrective action in a manner satisfactory to Borough of Ohiopyle or the authorized agent may order the owner or operator to allow access to the land by the  Borough's authorize agent or a third party to take such action.  B. For purposes of collecting or recovering the costs involved ini 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, Borough of Ohiopyle may collect the amount in the same manner as civil penalties are assessed and collected, following the process for assessment and collection ofa civil penalty contained within  the Commonwealth of Pennsylvania Municipal Claims Act. Section 4: Violations and penalties: criminal.  Any person who violates any provision oft this chapter or any order ofl Borough ofOhiopyle issued pursuant to this chapter commits a summary offense and shall, upon conviction, bei    sentenced to pay a fine ofr not less than $250.00 nor more: than $2,500.00 for each separate offense and, in default oft the payment ofsuch fine, may be sentenced toi imprisonment for 90 days for each separate offense. Employees of Borough of Ohiopyle 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 Borough of Ohiopyle. There is  no accelerated rehabilitative disposition authorized for a summary offense.  Section 5: Violations and penalties: civil.  A. In addition toj proceeding under any other remedy available at law or in equity for av violation ofa a provision ofthis chapter or any order issued pursuant to this chapter, Borough of Ohiopyle may assess a civil penalty for the violation. The penalty may be assessed whether 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, Borough of Ohiopyle shall consider the willfulness of the violation; damage to air, soil, water, or other natural resources of Borough of Ohiopyle or their uses; financial benefit to the person in consequence oft the violation; deterrence offuture violations; cost to Borough of Ohiopyle; the size oft the source or facility; the compliance history of the source; the severity and duration oft 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 Borough of Ohiopyle proposes to assess a civilj penalty, it shall inform the person ofthe proposed amount ofthe penalty. The person charged with the penalty shall then have 30 days to pay the proposed penalty ini full; or ift the person wishes to contest the amount of thej penalty or the fact oft the violation to the extent not already established, the person shall forward the proposed amount of the penalty to the Ohiopyle 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 Ohiopyle 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 Ohiopyle. If, through administrative or final judicial review of the proposed penalty, it is determined that no violation occurred or that the amount oft the penalty shall be reduced, the Ohiopyle 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 oft the appeal shall result in a waiver ofall legal rights to contest the violation or the amount ofthe civil penalty unless the appellant alleges financial inability toj prepay the penalty or to post the appeal bond. The Ohiopyle    Borough Council shall conduct a hearing to consider the appellant's alleged inability to pay within 30 days oft the date oft the appeal. The Ohiopyle Borough Council may waive the requirement to prepay the civil penalty or to post an appeal bond ifthe appellant demonstrates and the Ohiopyle Borough Council finds that the appellant is financially unable to pay. The Ohiopyle Borough Council shall issue an order within 30 days of the date oft the hearing to consider the appellant's alleged inability to pay. The amount assessed after administrative hearing or after waiver of administrative hearing shall bej payable to Borough of Ohiopyle and shall be collectible in any manner provided by law for the collection of debts, including the collection ofi interest on the penalty amount, computed in accordance with Section 6621(a)(2) of the Internal Revenue Code of 1986 (Public Law 99-514, 261 U.S.C. $1 et seq.), from the date of assessment of the penalty. Ifany 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 Ohiopyle. The debt shall constitute a lien on all property owned by said person when a notice of lien incorporatinga description of the property of the person subject to the action is duly filed with the Prothonotary oft 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 Borough ofOhiopyle, the name and address of the person, as may be appropriate, and the amount oft the lien as set forth in the notice ofl lien. Upon entry by the Prothonotary, the lien shall attach to the revenues and all real and personal property ofthe person, whether the person is solvent. The notice of lien filed pursuant tot 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 ini the property filed in accordance with established procedure prior to the filing  ofar notice of lien under this section. Section 6: Unlawful conduct.  Its shall be unlawful to fail to comply with or to cause or assist ini the violation ofany ofthe provisions oft this chapter or to fail to comply with any order or other requirement of Borough of Ohiopyle; or to cause aj public nuisance; or to cause air, soil, or water pollution resulting from an open burning incident; ort tol hinder, obstruct, prevent, or interfere with Borough of Ohiopyle ori its personnel int their performance ofany duty hereunder, including denying the Borough'sa authorized agent access to the source or facility; or to violate the provisions of 18 Pa.C.S.A. S 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 Borough of Ohiopyle to result  from the source.    Section 7: Public nuisances.  A violation of this chapter or of any order issued by the Borough of Ohiopyle under this chapter shall constitute a public nuisance. The Borough of Ohiopyle shall have the authority to ordera any person causing a public nuisance to abate the public nuisance. In addition, when abating aj public nuisance, Borough of Ohiopyle may recover the expenses of abatement following the process for assessment and collection of a civil penalty pursuant to the Commonwealth of Pennsylvania Municipal Claims Act. 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 thei manner provided by this chapter. Any person who causes the public nuisance shall be liable for  the cost of abatement. Section 8: Repealer.  All other ordinances or parts thereof which are in conflict with this chapter are hereby  repealed.  Section 9: Severability.  The provisions oft this chapter are severable, and, ifany section, clause, sentence, part, or provision thereof shall be held illegal, invalid, or unconstitutional by any court of competent jurisdiction, such decision oft the court shall not affect or impair the remaining sections, clauses, sentences, parts, or provisions ofthis chapter. Iti is hereby declared to be the intent oft the 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.  Section 10: Effective date.  This Ordinance shall take effect immediately upon execution by the Mayor.  Section 11: Municipal liability.  The Borough Council 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 oft this chapter or by reason oft the conduct of any burning activity in compliance or noncompliance with the terms and provisions hereof. Thej 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.    ORDAINED: AND ENACTED INTO LAW this  day of  2024.  ATTEST: 24  BOROUGH OF OHIOPYLE:  tael  By:  Hoehn, Secretary  President  -X  Pamela Kruse y LindzMcCarty Bein  *