PRINTER'S NO. 2756
No. 2196 Session of 1991
INTRODUCED BY HAYDEN, DeWEESE, BOWLEY, EVANS AND DONATUCCI,
NOVEMBER 19, 1991
REFERRED TO COMMITTEE ON CONSERVATION, NOVEMBER 19, 1991
AN ACT
1 Amending the act of January 8, 1960 (1959 P.L.2119, No.787),
2 entitled, as amended, "An act to provide for the better
3 protection of the health, general welfare and property of the
4 people of the Commonwealth by the control, abatement,
5 reduction and prevention of the pollution of the air by
6 smokes, dusts, fumes, gases, odors, mists, vapors, pollens
7 and similar matter, or any combination thereof; imposing
8 certain powers and duties on the Department of Environmental
9 Resources, the Environmental Quality Board and the
10 Environmental Hearing Board; establishing procedures for the
11 protection of health and public safety during emergency
12 conditions; creating a stationary air contamination source
13 permit system; providing additional remedies for abating air
14 pollution; reserving powers to local political subdivisions,
15 and defining the relationship between this act and the
16 ordinances, resolutions and regulations of counties, cities,
17 boroughs, towns and townships; imposing penalties for
18 violation of this act; and providing for the power to enjoin
19 violations of this act; and conferring upon persons aggrieved
20 certain rights and remedies," adding and amending certain
21 definitions; further providing for the powers and duties of
22 the Department of Environmental Resources, the Environmental
23 Quality Board and the Environmental Hearing Board; further
24 providing for plans and permits; providing for certain fees
25 and civil penalties, for acid control and for hazardous air
26 pollutants; further providing for certain procedures;
27 providing for compliance; establishing the Compliance
28 Advisory Panel and providing for its powers and duties;
29 further providing for enforcement, for criminal and civil
30 penalties and for the abatement and restraint of violations;
31 and making editorial changes.
32 The General Assembly of the Commonwealth of Pennsylvania
1 hereby enacts as follows:
2 Section 1. Section 2 of the act of January 8, 1960 (1959
3 P.L.2119, No.787), known as the Air Pollution Control Act,
4 amended June 12, 1968 (P.L.163, No.92), is amended to read:
5 Section 2. Declaration of Policy.--It is hereby declared to
6 be the policy of the Commonwealth of Pennsylvania to protect the
7 air resources of the Commonwealth to the degree necessary for
8 the (i) protection of public health, safety and well-being of
9 its citizens; (ii) prevention of injury to plant and animal life
10 and to property; (iii) protection of the comfort and convenience
11 of the public and the protection of the recreational resources
12 of the Commonwealth; [and] (iv) development, attraction and
13 expansion of industry, commerce and agriculture[.]; and (v)
14 implementation of the provisions of the Clean Air Act in the
15 Commonwealth.
16 Section 2. Section 3 of the act, amended October 26, 1972
17 (P.L.989, No.245), is amended to read:
18 Section 3. Definitions.--The following words and phrases,
19 when used in this act, unless the context clearly indicates
20 otherwise, shall have the meaning ascribed to them in this
21 section:
22 [(1) "Department." Department of Environmental Resources of
23 the Commonwealth of Pennsylvania.
24 (2) "Board." The Environmental Quality Board established in
25 the department by the act of December 3, 1970 (P.L.834).
26 (2.1) "Hearing board." The Environmental Hearing Board
27 established in the department by the act of December 3, 1970
28 (P.L.834).
29 (3) "Person." Any individual, public or private corporation
30 for profit or not for profit, association, partnership, firm,
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1 trust, estate, department, board, bureau or agency of the
2 Commonwealth, political subdivision, municipality, district,
3 authority or any other legal entity whatsoever which is
4 recognized by law as the subject of rights and duties.
5 (4) "Air contaminant." Smoke, dust, fume, gas, odor, mist,
6 vapor, pollen, or any combination thereof.
7 (5) "Air pollution." The presence in the outdoor atmosphere
8 of any form of contaminant including but not limited to the
9 discharging from stacks, chimneys, openings, buildings,
10 structures, open fires, vehicles, processes, or any other source
11 of any smoke, soot, fly ash, dust, cinders, dirt, noxious or
12 obnoxious acids, fumes, oxides, gases, vapors, odors, toxic or
13 radioactive substances, waste, or any other matter in such
14 place, manner, or concentration inimical or which may be
15 inimical to the public health, safety, or welfare or which is,
16 or may be injurious to human, plant or animal life, or to
17 property, or which unreasonably interferes with the comfortable
18 enjoyment of life or property.
19 (6) "Air contamination." The presence in the outdoor
20 atmosphere of an air contaminant which contributes to any
21 condition of air pollution.
22 (7) "Air contamination source." Any place, facility or
23 equipment, stationary or mobile, at, from or by reason of which
24 there is emitted into the outdoor atmosphere any air
25 contaminant.
26 (8) "Stationary air contamination source." Any air
27 contamination source other than that which, when operated, moves
28 in a given direction under its own power.
29 (9) "Region." Any geographical subdivision of the
30 Commonwealth whose boundaries shall be determined by the board.
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1 (10) "Approved air pollution control agency." An air
2 pollution control agency of any political subdivision of the
3 Commonwealth which has been granted approval by the board.]
4 "Administrator." The Administrator of the United States
5 Environmental Protection Agency.
6 "Air contaminant." Smoke, dust, fume, gas, odor, mist,
7 radiation, vapor, pollen, or any combination thereof.
8 "Air contamination." The presence in the outdoor atmosphere
9 of an air contaminant which contributes to any condition of air
10 pollution.
11 "Air contamination source." Any place, facility or
12 equipment, stationary or mobile, at, from or by reason of which
13 there is emitted into the outdoor atmosphere any air
14 contaminant.
15 "Air pollution." The presence in the outdoor atmosphere of
16 any form of contaminant including but not limited to the
17 discharging from stacks, chimneys, openings, buildings,
18 structures, open fires, vehicles, processes, or any other source
19 of any smoke, soot, fly ash, dust, cinders, dirt, noxious or
20 obnoxious acids, fumes, oxides, gases, vapors, odors, toxic,
21 hazardous or radioactive substances, waste, or any other matter
22 in such place, manner, or concentration inimical or which may be
23 inimical to the public health, safety, or welfare or which is,
24 or may be injurious to human, plant or animal life, or to
25 property, or which unreasonably interferes with the comfortable
26 enjoyment of life or property.
27 "Approved air pollution control agency." An air pollution
28 control agency of any political subdivision of the Commonwealth
29 which has been granted approval by the board.
30 "Board." The Environmental Quality Board.
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1 "Clean Air Act." Public Law 95-95, 42 U.S.C. 7401 et seq.
2 "Department." The Department of Environmental Resources of
3 the Commonwealth.
4 "Environmental Protection Agency." The United States
5 Environmental Protection Agency or the Administrator of the
6 United States Environmental Protection Agency.
7 "Hearing board." The Environmental Hearing Board.
8 "Person." Any individual, public or private corporation for
9 profit or not for profit, association, partnership, firm, trust,
10 estate, department, board, bureau or agency of the Commonwealth
11 or the Federal government, political subdivision, municipality,
12 district, authority or any other legal entity whatsoever which
13 is recognized by law as the subject of rights and duties.
14 "Plan approval." The written approval from the Department of
15 Environmental Resources which authorizes a person to construct,
16 assemble, install or modify any stationary air contamination
17 source, install thereon any air pollution control equipment or
18 device or reactivate any air contamination source after said
19 source has been out of operation or production for a period of
20 one year or more.
21 "Region." Any geographical subdivision of the Commonwealth
22 whose boundaries shall be determined by the board.
23 "State Implementation Plan." The plan that a state is
24 authorized and required to submit under section 110 of the Clean
25 Air Act (Public Law 95-95, 42 U.S.C. 7410) to provide for
26 attainment of the national ambient air quality standards.
27 "Stationary air contamination source." Any air contamination
28 source other than that which, when operated, moves in a given
29 direction under its own power.
30 Section 3. Section 4 of the act, amended October 26, 1972
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1 (P.L.989, No.245) and repealed in part April 28, 1978 (P.L.202,
2 No.53), is amended to read:
3 Section 4. Powers and Duties of the Department of
4 Environmental Resources.--The department shall have power and
5 its duty shall be to--
6 (1) Do any and all things necessary or appropriate to
7 implement the provisions of the Clean Air Act in the
8 Commonwealth, including the enforcement of the requirements that
9 the Commonwealth is authorized to implement or enforce under the
10 Clean Air Act.
11 [(1)] (2) Enter any building, property, premises or place
12 and inspect any air contamination source for the purpose of
13 investigating an actual or a suspected source of air pollution
14 or for the purpose of ascertaining the compliance or non-
15 compliance with [any rule or regulation which may have been
16 adopted and promulgated by the board hereunder.] this act, the
17 Clean Air Act, any rule or regulation promulgated under either
18 this act or the Clean Air Act, any plan approval, permit or
19 order of the department. In connection with such inspection or
20 investigation, samples of air, air contaminants, fuel, process
21 material or other matter may be taken for analysis, a duplicate
22 of the analytical report shall be furnished promptly to the
23 person who is suspected of causing such air pollution or air
24 contamination.
25 [(2)] (3) Have access to, and require the production of,
26 books [and], papers and records, including, but not limited to,
27 computerized records pertinent to any matter under
28 investigation.
29 [(2.1)] (4) Require the owner or operator of any air
30 contamination source to establish and maintain such records and
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1 make such reports and furnish such information as the department
2 may reasonably prescribe.
3 [(2.2)] (5) Require the owner or operator of any air
4 contamination source to install, use and maintain such air
5 contaminant monitoring equipment or methods as the department
6 may reasonably prescribe.
7 [(2.3)] (6) Require the owner or operator of any air
8 contamination source to sample the emissions thereof in
9 accordance with such methods and procedures and at such
10 locations and intervals of time as the department may reasonably
11 prescribe and to provide the department with the results
12 thereof.
13 [(3)] (7) Enter upon any property on which an air
14 contamination source may be located and make such tests upon the
15 source as are necessary to determine whether the air
16 contaminants being emitted from such air contamination source
17 are being emitted at a rate in excess of a rate provided for by
18 [board rule or regulation] this act, the Clean Air Act, any rule
19 or regulations promulgated under either this act or the Clean
20 Air Act, any plan approval, permit or order of the department or
21 otherwise causing air pollution. Whenever the department
22 determines that a source test is necessary, it shall give
23 reasonable written or oral notice to the person owning,
24 operating, or otherwise in control of such source, that [it] the
25 department will conduct a test on such source. Thereafter, the
26 person to whom such notice is given shall provide such
27 reasonably safe access to the testing area, and such sampling
28 [holes] ports, facilities, electrical power and water as the
29 department shall specify in its notice.
30 [(4)] (8) Receive, initiate and investigate complaints,
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1 institute and conduct surveys and testing programs, conduct
2 general atmospheric sampling programs, make observations of
3 conditions which may or do cause air pollution, make tests or
4 other determinations at air contamination sources, and assess
5 the degree of abatement required.
6 [(4.1)] (9) (i) Issue orders to any person owning or
7 operating an air contamination source, or owning or possessing
8 land on which such source is located, if such source is
9 introducing or is likely to introduce air contaminants into the
10 outdoor atmosphere in excess of any [board rule or regulation,
11 or any permit requirement] rate provided for by this act, the
12 Clean Air Act, any rule or regulation promulgated under either
13 this act or the Clean Air Act, any plan approval or permit
14 applicable to such source, or at such a level so as to cause air
15 pollution. Any such order may require the cessation of any
16 operation or activity which is introducing air contaminants into
17 the outdoor atmosphere so as to cause air pollution, the
18 reduction of emissions from such air contamination source,
19 modification or repair of such source or air pollution control
20 device or equipment or certain operating and maintenance
21 procedures with respect to such source or air pollution control
22 device or equipment, institution of a process change,
23 installation of air pollution control devices or equipment, or
24 any or all of said requirements as the department deems
25 necessary. Such orders may specify a time for compliance,
26 require submission of a proposed plan for compliance, and
27 require submission of periodic reports concerning compliance. If
28 a time for compliance is given, the department may, in its
29 discretion, require the posting of a bond in the amount of twice
30 the money to be expended in reaching compliance.
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1 (ii) All department orders shall be in writing, contain
2 therein a statement of the reasons for their issuance, and be
3 served either personally or by certified mail. Within thirty
4 (30) days after service of any such order the person to whom the
5 order is issued or any other person aggrieved by such order may
6 file with the hearing board an appeal setting forth with
7 particularity the grounds relied upon. An appeal to the hearing
8 board of the department's order shall not act as a supersedeas:
9 Provided, however, That upon application and for cause shown,
10 the hearing board may issue such a supersedeas.
11 [(5)] (10) Institute, in a court of competent jurisdiction
12 proceedings to compel compliance with [any] this act, the Clean
13 Air Act, any rule or regulation promulgated under either this
14 act or the Clean Air Act, plan approval, permit or order of the
15 department [from which there has been no appeal or which has
16 been sustained on appeal].
17 [(6)] (11) Act as the agent for the board in holding public
18 hearings when so directed by the board.
19 [(7)] (12) Institute prosecutions under this act.
20 [(8)] (13) Recommend the minimum job qualifications of
21 personnel employed by county and municipal air pollution control
22 agencies hereafter created.
23 [(9)] (14) Require the submission of, and consider for
24 approval, plans and specifications of air pollution control
25 equipment, devices or process changes, and inspect such
26 installations or modifications to insure compliance with the
27 plans which have been approved.
28 [(10)] (15) Conduct or cause to be conducted studies and
29 research with respect to air contaminants, their nature, causes
30 and effects, and with respect to the control, prevention,
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1 abatement and reduction of air pollution and air contamination.
2 [(10.1)] (16) Evaluate motor vehicle emission control
3 programs, including vehicle emission standards, clean
4 alternative fuels, oxygenated fuels, reformulated fuels, vehicle
5 miles of travel, congestion levels, transportation control
6 measures and other transportation control strategies with
7 respect to their effect upon air pollution and determine the
8 need for modifications of such programs.
9 [(11)] (17) Determine by means of field studies and sampling
10 the degree of air pollution existing in any part of the
11 Commonwealth.
12 [(12)] (18) Prepare and develop a general comprehensive plan
13 for the control and abatement of existing air pollution and air
14 contamination and for the abatement, control and prevention of
15 any new air pollution and air contamination, recognizing varying
16 requirements for the different areas of the Commonwealth, and to
17 submit a comprehensive plan to the board for its consideration
18 and approval.
19 [(13)] (19) Encourage the formulation and execution of plans
20 in conjunction with air pollution control agencies or civil
21 associations of counties, cities, boroughs, towns and townships
22 of the Commonwealth wherein any sources of air pollution or air
23 contamination may be located, and enlist the cooperation of
24 those who may be in control of such sources for the control,
25 prevention and abatement of such air pollution and air
26 contamination.
27 [(14)] (20) Encourage voluntary efforts and cooperation by
28 all persons concerned in controlling, preventing, abating and
29 reducing air pollution and air contamination.
30 [(15)] (21) Conduct and supervise educational programs with
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1 respect to the control, prevention, abatement and reduction of
2 air pollution and air contamination, including the preparation
3 and distribution of information relating to the means of
4 controlling and preventing such air pollution and air
5 contamination.
6 [(16)] (22) Develop and conduct in cooperation with local
7 communities demonstration programs relating to air contaminants,
8 air pollution and air contamination and the control, prevention,
9 abatement and reduction of air pollution and air contamination.
10 [(17)] (23) Provide advisory technical consultative services
11 to local communities for the control, prevention, abatement and
12 reduction of air pollution and air contamination.
13 [(18)] (24) Cooperate with the appropriate agencies of the
14 United States or of other states or any interstate agencies with
15 respect to the control, prevention, abatement and reduction of
16 air pollution, and where appropriate formulate interstate air
17 pollution control compacts or agreements for the submission
18 thereof to the General Assembly.
19 [(19)] (25) Serve as the agency of the Commonwealth for the
20 receipt of moneys from the Federal government or other public or
21 private agencies, and expend such moneys for studies and
22 research with respect to air contaminants, air pollution and the
23 control, prevention, abatement and reduction of air pollution.
24 (26) Develop and submit to the Environmental Protection
25 Agency a procedure to implement and enforce the regulations
26 which the Environmental Protection Agency adopts under section
27 183(e) of the Clean Air Act to reduce emissions from consumer
28 and commercial products.
29 (27) Establish and implement a Small Business Stationary
30 Source Technical and Environmental Compliance Assistance Program
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1 as required by section 507 of the Clean Air Act.
2 [(20)] (28) Do any and all other acts and things not
3 inconsistent with any provision of this act, which it may deem
4 necessary or proper for the effective enforcement of this act,
5 the Clean Air Act, and the rules or regulations [which have
6 been] promulgated [thereunder] under either this act or the
7 Clean Air Act.
8 Section 4. Section 4.1 of the act, added December 2, 1976
9 (P.L.1263, No.279), is amended to read:
10 Section 4.1. Agricultural Regulations Prohibited.--[The]
11 Except as may be required by the Clean Air Act or the
12 regulations promulgated under the Clean Air Act, the
13 Environmental Quality Board shall not have the power nor the
14 authority to adopt rules and regulations relating to air
15 contaminants and air pollution arising from the production of
16 agricultural commodities in their unmanufactured state but shall
17 not include the use of materials produced or manufactured off
18 the premises of the farm operation.
19 Section 5. Sections 5 and 6 of the act, amended October 26,
20 1972 (P.L.989, No.245), are amended to read:
21 Section 5. Environmental Quality Board.--The board shall
22 have the power and its duty shall be to--
23 (1) Adopt rules and regulations, for the prevention,
24 control, reduction and abatement of air pollution, applicable
25 throughout the Commonwealth or to such parts or regions or
26 subregions thereof specifically designated in such regulation
27 which shall be applicable to all air contamination sources
28 regardless of whether such source is required to be under permit
29 by this act. Such rules and regulations may establish maximum
30 allowable emission rates of air contaminants from such sources,
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1 prohibit or regulate the combustion of certain fuels, prohibit
2 or regulate open burning, prohibit or regulate any process or
3 source or class of processes or sources, require the
4 installation of specified control devices or equipment, or
5 designate the control efficiency of air pollution control
6 devices or equipment required in specific processes or sources
7 or classes of processes or sources. Such rules and regulations
8 shall be adopted pursuant to the provisions of the act of July
9 31, 1968 (P.L.769), known as the "Commonwealth Documents Law,"
10 upon such notice and after such public hearings as the board
11 deems appropriate. In exercising its authority to adopt rules
12 and regulations, the board may, and to the extent deemed
13 desirable by it shall, consult with a council of technical
14 advisers, properly qualified by education or experience in air
15 pollution matters, appointed by the board and to serve at the
16 pleasure of the board, to consist of such number of advisers as
17 the board may appoint, but such technical advisers shall receive
18 no compensation, other than their actual and necessary expenses,
19 for their services to the board.
20 (2) Establish and publish maximum quantities of air
21 contaminants that may be permitted under various conditions at
22 the point of use from any air contaminant source in various
23 areas of the Commonwealth so as to control air pollution.
24 (3) By [the] rule or regulation, classify air contaminant
25 sources, according to levels and types of emissions and other
26 characteristics which relate to air pollution. Classifications
27 made pursuant to this subsection shall apply to the entire
28 Commonwealth or any part thereof. Any person who owns or
29 operates an air contaminant source of any class to which the
30 rules and regulations of the board under this subsection apply,
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1 shall make reports containing information as may be required by
2 the board concerning location, size and height of air
3 contaminant outlets, processes employed, fuels used and the
4 nature and time periods or duration of emissions, and such other
5 information as is relevant to air pollution and available or
6 reasonably capable of being assembled.
7 (4) Recommend to the Secretary of Transportation performance
8 or specification standards, or both, for emission control
9 systems and devices on motor vehicles.
10 (5) Adopt rules and regulations for the protection of public
11 health and safety for periods when the accumulation of air
12 contaminants in any area is attaining or has attained levels
13 which, if sustained or exceeded, could lead to an acute threat
14 to the health of the public. Such rules and regulations shall
15 contain appropriate procedures to protect public health and
16 safety during such periods.
17 (6) Adopt rules and regulations for the approval and the
18 recision and suspension of approval of local air pollution
19 control agencies.
20 (7) Adopt rules and regulations designed to reduce emissions
21 from motor vehicles, including vehicle emission standards, clean
22 alternative fuels, oxygenated fuels, reformulated fuels, vehicle
23 miles of travel, transportation control measures and other
24 transportation control strategies. Such rules and regulations
25 shall be developed in consultation with the Department of
26 Transportation.
27 (8) Adopt rules and regulations to implement the provisions
28 of the Clean Air Act.
29 Section 6. Environmental Hearing Board.--The hearing board
30 shall have the power and its duty shall be to hear and determine
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1 all appeals from [orders issued by] appealable actions of the
2 department as defined in the act of July 13, 1988 (P.L.530,
3 No.94), known as the "Environmental Hearing Board Act," in
4 accordance with the provisions of this act. Any and all action
5 taken by the hearing board with reference to any such appeal
6 shall be in the form of an adjudication, and all such action
7 shall be subject to the provisions of [the act of June 4, 1945
8 (P.L.1388), known as the "Administrative Agency Law."] 2 Pa.C.S.
9 (relating to administrative law and procedure).
10 Section 6. Section 6.1 of the act, added October 26, 1972
11 (P.L.989, No.245) and repealed in part April 28, 1978 (P.L.202,
12 No.53), is amended to read:
13 Section 6.1. Plan Approvals and Permits.--(a) [On or after
14 July 1, 1972, no] No person shall construct, assemble, install
15 or modify any stationary air contamination source, or install
16 thereon any air pollution control equipment or device or
17 reactivate any air contamination source after said source has
18 been out of operation or production for a period of one year or
19 more unless such person has applied to and received [from the
20 department] written plan approval [so to do] from the department
21 to do so: Provided, however, That no such written approval shall
22 be necessary with respect to normal routine maintenance
23 operations, nor to any such source, equipment or device used
24 solely for the supplying of heat or hot water to one structure
25 intended as a one-family or two-family dwelling, [or with
26 respect to any other class of units as the board, by rule or
27 regulation, may exempt from the requirements of this section.]
28 nor where construction, assembly, installation or modification
29 is specifically authorized by the rules or regulations of the
30 department to be conducted without written approval. All
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1 applications for approval shall be made in writing and shall be
2 on such forms and contain such information as the department
3 shall prescribe and shall have appended thereto detailed plans
4 and specifications related to the proposed installation.
5 (b) (1) No person shall operate any stationary air
6 contamination source [which is subject to the provisions of
7 subsection (a) of this section] unless the department shall have
8 issued to such person a permit to operate such source under the
9 provisions of this section in response to a written application
10 for a permit submitted on forms and containing such information
11 as the department may prescribe. The department shall provide
12 public notice and the right to comment on all permits prior to
13 issuance or denial and may hold public hearings concerning any
14 permit.
15 (2) [No permit shall] A permit may be issued after the
16 effective date of this amendment to any applicant [unless it
17 appears that, with respect to the source,] for a stationary air
18 contamination source requiring construction, assembly,
19 installation, modification or reactivation, where the
20 requirements of subsection (a) of this section have been met and
21 [that] there has been performed upon such source a test
22 operation or evaluation which shall satisfy the department that
23 the air contamination source will not discharge into the outdoor
24 atmosphere any air contaminants at a rate in excess of that
25 permitted by applicable regulation of the board, or in violation
26 of any performance or emission standard or other requirement
27 established by the Environmental Protection Agency or the
28 department for such source, and which will not cause air
29 pollution.
30 (3) A stationary air contamination source operating lawfully
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1 without a permit for which fees required by section 6.3 of this
2 act or the regulations promulgated under this act have been paid
3 is authorized to continue to operate without a permit until one
4 hundred twenty (120) days after the department provides notice
5 to the source that a permit is required or until November 1,
6 1995, whichever occurs first. If the applicant submits a
7 complete permit application within the timeframes in this
8 subsection, and the department fails to issue a permit through
9 no fault of the applicant, the source may continue to operate if
10 the fees required by section 6.3 of this act or the regulations
11 promulgated under this act have been paid and the source is
12 operated in conformance with this act, the Clean Air Act and the
13 regulations promulgated under both this act and the Clean Air
14 Act. For any performance or emission standard or other
15 requirement established by the Environmental Protection Agency
16 or the department for the source subsequent to the effective
17 date of this act but prior to the permit issuance date, the
18 permit may contain a compliance schedule authorizing the source
19 to operate out of compliance and requiring the source to achieve
20 compliance as soon as possible but no later than the time
21 required by this act, the Clean Air Act or the regulations
22 promulgated under either this act or the Clean Air Act. For
23 purposes of this subsection, a source is operating lawfully
24 without a permit where it is a source for which no permit was
25 previously required and the source is operating in compliance
26 with all applicable regulatory requirements.
27 (4) For repermitting of any stationary air contamination
28 source which is operating under a valid permit on the effective
29 date of this act or which has received a permit under the
30 provisions of clauses (2) and (3) of this subsection and which
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1 is required to meet performance or emission standards or other
2 requirements established subsequent to the issuance of the
3 existing permit, the new permit may contain a compliance
4 schedule authorizing the source to operate out of compliance and
5 requiring the source to achieve compliance as soon as possible
6 but no later than the time required by this act, the Clean Air
7 Act or the regulations promulgated under either this act or the
8 Clean Air Act.
9 (b.1) [Permits] A permit or plan approval issued hereunder
10 may contain such terms and conditions as the department deems
11 necessary to assure the proper operation of the source. [Each
12 permittee, on or before the anniversary date set forth in his
13 permit, shall submit to the department an annual report
14 containing such information as the department shall prescribe
15 relative to the operation and maintenance of the installation
16 under permit.
17 (c) Any permit issued hereunder may be revoked or suspended
18 if the permittee operates the source subject to the permit in
19 such a manner as to be in violation of the conditions of any
20 permit or rule or regulation of the board or in such a manner as
21 to cause air pollution, if the permittee fails to properly or
22 adequately maintain or repair any air pollution control device
23 or equipment attached to or otherwise made a part of the source,
24 or if the permittee has failed to submit any annual report as
25 required under this section.
26 (d) The department may refuse to grant approval for any
27 stationary air contamination source subject to the provisions of
28 subsection (a) of this section or to issue a permit to operate
29 such source if it appears, from the data available to the
30 department, that the proposed source, or proposed changes in
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1 such source, are likely either to cause air pollution or to
2 violate any board rule or regulation applicable to such source,
3 or if, in the design of such source, no provision is made for
4 adequate facilities to conduct source testing. The department
5 may also refuse to issue a permit to any person who has
6 constructed, installed or modified any air contamination source,
7 or installed any air pollution control equipment or device on
8 such source contrary to the plans and specifications approved by
9 the department.] Each permittee, on a schedule established by
10 the department, shall submit reports to the department
11 containing such information as the department may prescribe
12 relative to the operation and maintenance of the source.
13 (b.2) A permit issued or reissued under subsection (b) of
14 this section shall be for a fixed term not to exceed five (5)
15 years except that a permit for acid deposition control shall be
16 issued for a five (5) year term. A permit may be terminated,
17 modified, suspended or revoked and reissued for cause. The terms
18 and conditions of an expired permit are automatically continued
19 pending the issuance of a new permit where the permittee has
20 submitted a timely and complete application for a new permit and
21 paid the fees required by section 6.3 of this act or the
22 regulations promulgated under this act and the department is
23 unable, through no fault of the permittee, to issue or deny a
24 new permit before the expiration date of the previous permit.
25 Failure of the department to issue or deny a new permit prior to
26 the expiration date of the previous permit shall be an
27 appealable action as described in section 10.2 of this act.
28 (c) A plan approval or permit issued hereunder may be
29 terminated, modified, suspended or revoked and reissued if the
30 permittee constructs or operates the source subject to the plan
19910H2196B2756 - 19 -
1 approval or permit in such a manner as to be in violation of
2 this act, the Clean Air Act, the regulations promulgated under
3 either this act or the Clean Air Act, a plan approval or permit
4 or in such a manner as to cause air pollution, if the permittee
5 fails to properly or adequately maintain or repair any air
6 pollution control device or equipment attached to or otherwise
7 made a part of the source, if the permittee has failed to submit
8 any report as required under this section or if the
9 Environmental Protection Agency determines that the permit is
10 not in compliance with the requirements of the Clean Air Act or
11 the regulations promulgated under the Clean Air Act.
12 (d) The department may refuse to grant plan approval for any
13 stationary air contamination source subject to the provisions of
14 subsection (a) of this section or to issue a permit to any
15 source that the department determines is likely to cause air
16 pollution or to violate this act, the Clean Air Act or the
17 regulations promulgated under either this act or the Clean Air
18 Act applicable to such source, or if, in the design of such
19 source, no provision is made for adequate facilities to conduct
20 source testing. The department may also refuse to issue a permit
21 or may for cause terminate or revoke and reissue any permit to
22 any person if the Environmental Protection Agency determines
23 that the permit is not in compliance with the requirements of
24 the Clean Air Act or the regulations promulgated under the Clean
25 Air Act or if the applicant has constructed, installed, modified
26 or operated any air contamination source or installed any air
27 pollution control equipment or device on such source contrary to
28 the plans and specifications approved by the department.
29 (e) Whenever the department shall refuse to grant an
30 approval or to issue or reissue a permit hereunder or terminate,
19910H2196B2756 - 20 -
1 modify, suspend or revoke a plan approval or permit already
2 issued, such action shall be in the form of a written notice to
3 the person affected thereby informing him of the action taken by
4 the department and setting forth, in such notice, a full and
5 complete statement of the reasons for such action. Such notice
6 shall be served upon the person affected, either personally or
7 by certified mail, and the action set forth in the notice shall
8 be final and not subject to review unless, within thirty (30)
9 days of the service of such notice, any person affected thereby
10 shall appeal to the hearing board, setting forth with
11 particularity the grounds relied upon. The hearing board shall
12 hear the appeal pursuant to the provisions of the rules and
13 regulations relating to practice and procedure before the
14 hearing board, and thereafter, shall issue an adjudication
15 affirming, modifying or overruling the action of the department.
16 [(f) The board may, by rule, require the payment of a
17 reasonable fee, not to exceed two hundred dollars ($200.00), for
18 the processing of any application for plan approval or for an
19 operating permit under the provisions of this section.]
20 (g) The department may, by regulation, establish a general
21 plan approval and a general permit program. After the program is
22 established, the department may grant general plan approval or a
23 general permit for any category of stationary air contamination
24 source if the department determines that the sources in such
25 category are similar in nature, and can be adequately regulated
26 using standardized specifications and conditions. Any applicant
27 proposing to use a general plan approval or general permit shall
28 notify the department and receive written approval prior to the
29 proposed use.
30 (h) The department may, by regulation, establish a plan
19910H2196B2756 - 21 -
1 approval and permit program for stationary sources operated at
2 multiple temporary locations. After the program is established,
3 the department may grant a plan approval or issue a single
4 permit to any stationary air contamination source that may be
5 operated at multiple temporary locations. Such approval or
6 permit shall require the owner or operator to notify the
7 department and municipality where the operation shall take place
8 in advance of each change in location and may require a separate
9 application and permit or approval fee for operations at each
10 location. Any applicant proposing to use the plan approval or
11 permit authorized by this subsection shall notify the department
12 and receive written approval prior to the proposed use.
13 (i) The department shall establish comprehensive plan
14 approval and operating permit programs which, at a minimum, meet
15 the requirements of the Clean Air Act.
16 Section 7. Section 6.2 of the act, added October 26, 1972
17 (P.L.989, No.245), is amended to read:
18 Section 6.2. Emergency Procedure.--(a) Any other provision
19 of law to the contrary notwithstanding, if the department finds,
20 in accordance with the rules and regulations of the board
21 adopted under the provisions of clause (5) of section 5 of this
22 act, that a generalized condition of air pollution exists and
23 that it creates an emergency requiring immediate action to
24 protect human health or safety, the department, with the
25 concurrence of the Governor, shall order or direct persons
26 causing or contributing to the air pollution to immediately
27 reduce or discontinue the emission of air contaminants.
28 * * *
29 Section 8. The act is amended by adding sections to read:
30 Section 6.3. Fees.--(a) The department is authorized to
19910H2196B2756 - 22 -
1 establish fees for all air contamination sources in the
2 Commonwealth. Except as provided in subsection (b) of this
3 section, fees established under this section shall at a minimum
4 cover the direct and indirect cost of administering the air
5 pollution control plan approval, permit and related monitoring,
6 analysis, modeling, tracking and enforcement program in the
7 Commonwealth, including the permitting program required by Title
8 V of the Clean Air Act. In establishing fees, the department may
9 consider the size of the air contamination source, the resources
10 necessary to process the application for plan approval or a
11 permit, the complexity of the plan approval or permit, the
12 quantity and type of emissions from the source and other
13 relevant factors.
14 (b) Until alternative fees are established by the department
15 under subsection (a) of this section, stationary air
16 contamination sources shall pay the following interim fees:
17 (1) Two hundred dollars ($200.00) for the processing of any
18 application for plan approval.
19 (2) Two hundred dollars ($200.00) for the processing of any
20 application for an operating permit.
21 (3) (i) For each facility with one hundred (100) or more
22 tons of sulfur dioxide, nitrogen oxides, particulate matter of
23 ten (10) microns or less or volatile organic compounds emitted
24 annually, a fee of twenty-five dollars ($25.00) per ton emitted
25 of each of these pollutants.
26 (ii) In determining the amount each facility is to pay, the
27 facility is not required to include any amount of a pollutant
28 listed above emitted by the facility in excess of four thousand
29 (4,000) tons per year of that listed pollutant. This shall not
30 alter the reporting requirements of the facility.
19910H2196B2756 - 23 -
1 (iii) The twenty-five dollar ($25.00) per ton fee shall be
2 payable starting with emissions occurring in calendar year 1991.
3 Each facility subject to the fee shall report its emissions and
4 pay the fee within one hundred twenty (120) days after receipt
5 of a reporting form from the department or by September 1 of
6 each year for the emissions from the preceding year, whichever
7 occurs first.
8 (c) Any air contamination source that fails to pay the fees
9 within the time frame established by this section shall pay a
10 penalty of fifty per centum of the fee amount, plus interest on
11 the fee amount computed in accordance with section 6621(a)(2) of
12 the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C.
13 § 1 et seq.) from the date the fee was required to be paid. In
14 addition, such source may have its permit terminated or
15 suspended. The fee, penalty and interest may be collected
16 following the process for assessment and collection of a civil
17 penalty contained in section 9.1 of this act.
18 (d) Any fees, penalties and interest owed the Commonwealth
19 for delinquent payment collected under this section shall be
20 deposited in a special account in the Clean Air Fund and shall
21 be utilized solely to cover a portion of the direct and indirect
22 costs of the plan approval, permit and related monitoring,
23 analysis, modeling, tracking and enforcement programs
24 established by this act and the regulations promulgated under
25 this act as well as for air pollution prevention. The fee
26 established under subsection (a) of this section to cover the
27 cost of the permitting program under Title V of the Clean Air
28 Act shall generate sufficient funds to cover all direct and
29 indirect costs required to develop and administer the Title V
30 operating permit program and shall only be expended for that
19910H2196B2756 - 24 -
1 purpose.
2 (e) (1) The fee established under subsection (a) of this
3 section to cover the cost of the permitting program under Title
4 V of the Clean Air Act shall be not less than twenty-five
5 dollars ($25.00) per ton of each regulated pollutant or such
6 other amount as the department may determine adequately reflects
7 the reasonable costs of the permit program.
8 (2) In determining the amount under clause (1) of this
9 subsection, the department is not required to include any amount
10 of regulated pollutant emitted by any air contamination source
11 in excess of four thousand (4,000) tons per year of that
12 regulated pollutant. This shall not alter the reporting
13 requirements of the source.
14 (3) The fee calculated under clause (1) of this subsection
15 shall be increased in each year beginning in 1991 by the
16 percentage, if any, by which the Consumer Price Index for the
17 most recent calendar year exceeds the Consumer Price Index for
18 the calendar year 1989. For purposes of this clause:
19 (i) the Consumer Price Index for any calendar year is the
20 average of the Consumer Price Index for All-Urban Consumers,
21 published by the United States Department of Labor, as of the
22 close of the twelve (12) month period ending on August 31 of
23 each calendar year; and
24 (ii) the revision of the Consumer Price Index which is most
25 consistent with the Consumer Price Index for calendar year 1989
26 shall be used.
27 (4) As used in this subsection, the term "regulated
28 pollutant" shall mean:
29 (i) a volatile organic compound;
30 (ii) each pollutant regulated under sections 111 and 112 of
19910H2196B2756 - 25 -
1 the Clean Air Act; and
2 (iii) each pollutant for which a national primary ambient
3 air quality standard has been promulgated, except that carbon
4 monoxide shall be excluded from this reference.
5 Section 6.4. Fee for Certain Ozone Areas.--(a) If an area
6 identified in a State Implementation Plan or any revision as a
7 severe or extreme ozone nonattainment area has failed to meet
8 the national primary ambient air quality standard for ozone by
9 the applicable attainment date, each major source of volatile
10 organic compounds (VOCs), as defined in the Clean Air Act and
11 the regulations promulgated under the Clean Air Act, located in
12 the area shall, except with respect to emissions during any year
13 treated as an extension year under section 181(a)(5) of the
14 Clean Air Act, pay a fee to the department as a penalty for such
15 failure for each calendar year beginning after the attainment
16 date, until the area is redesignated as an attainment area for
17 ozone. This fee shall be assessed and collected following the
18 process for collection and assessment of a civil penalty
19 contained in section 9.1 of this act.
20 (b) (1) The fee shall equal five thousand dollars
21 ($5,000.00), adjusted in accordance with clause (3) of this
22 subsection, per ton of VOC emitted by the source during the
23 calendar year in excess of eighty per centum of the baseline
24 amount, computed under clause (2) of this subsection. The fee
25 shall be in addition to all other fees required to be paid by
26 the source.
27 (2) (i) For purposes of this section, the baseline amount
28 shall be computed, in accordance with such guidance as the
29 administrator may provide, as the lower of the amount of actual
30 VOC emissions (referred to as actuals) or VOC emissions allowed
19910H2196B2756 - 26 -
1 under the permit applicable to the source or, if no such permit
2 has been issued for the attainment year, the amount of VOC
3 emissions allowed under the applicable implementation plan
4 (referred to as allowables) during the attainment year.
5 (ii) Notwithstanding subclause (i) of this clause, the
6 administrator may issue guidance authorizing the baseline amount
7 to be determined in accordance with the lower of average actuals
8 or average allowables, determined over a period of more than one
9 calendar year. This guidance may provide that the average
10 calculation for a specific source may be used if that source's
11 emissions are irregular, cyclical or otherwise vary
12 significantly from year to year.
13 (3) The fee amount under clause (1) of this subsection shall
14 be adjusted annually, beginning 1991 in accordance with section
15 6.3(c) and (e)(3).
16 Section 6.5. Acid Deposition Control.--(a) The department
17 is authorized to develop a permit program for acid deposition
18 control in accordance with Titles IV and V of the Clean Air Act
19 and to submit it to the administrator for approval.
20 (b) For purposes of the permit program authorized under
21 subsection (a) of this section, the definitions in sections 402
22 and 501 of the Clean Air Act are incorporated herein by
23 reference.
24 (c) The owner or operator or the designated representative
25 of each source affected under section 405 of the Clean Air Act
26 shall submit a permit application and compliance plan for the
27 affected source to the department no later than January 1, 1996.
28 In the case of affected sources for which application and plans
29 are timely received, the permit application and the compliance
30 plan, including amendments thereto, shall be binding on the
19910H2196B2756 - 27 -
1 owner or operator or the designated representative of the owners
2 or operators and shall be enforceable as a permit for purposes
3 of this section until a permit is issued by the department. Any
4 permit issued by the department shall require the source to
5 achieve compliance as soon as possible but no later than the
6 date required by this act, the Clean Air Act or the regulations
7 promulgated under either this act or the Clean Air Act for the
8 source.
9 (d) At any time after the submission of a permit application
10 and compliance plan, the applicant may submit a revised
11 application and compliance plan. In considering any permit
12 application and compliance plan under this section, the
13 department shall coordinate with the Pennsylvania Public Utility
14 Commission consistent with requirements that may be established
15 by the administrator.
16 (e) In addition to other provisions, permits issued by the
17 department shall prohibit all of the following:
18 (1) Annual emissions of sulfur dioxide in excess of the
19 number of allowances to emit sulfur dioxide that the owner or
20 operator or designated representative hold for the unit.
21 (2) Exceedances of applicable emissions rates or standards,
22 including ambient air quality standards.
23 (3) The use of any allowance prior to the year for which it
24 is allocated.
25 (4) Contravention of any other provision of the permit.
26 Section 6.6. Hazardous Air Pollutants.--(a) The regulations
27 establishing performance or emission standards promulgated under
28 section 112 of the Clean Air Act are incorporated by reference
29 into the department's permitting program. After the effective
30 date of the performance or emission standard, new,
19910H2196B2756 - 28 -
1 reconstructed, modified and existing sources shall comply with
2 the performance or emission standards pursuant to the compliance
3 schedule established under section 112 of the Clean Air Act and
4 the regulations promulgated under the Clean Air Act.
5 (b) In the event the administrator has not promulgated a
6 standard to control the emissions of hazardous air pollutants
7 for a category or subcategory of major sources under section 112
8 of the Clean Air Act, the department shall have the authority to
9 establish a performance or emission standard on a case-by-case
10 basis for individual sources or a category of sources. Any
11 person challenging the performance or emission standards
12 established by the department shall have the burden to
13 demonstrate by clear and convincing evidence that the
14 performance or emission standard does not meet the requirements
15 of section 112 of the Clean Air Act. The department shall
16 incorporate the standard to control the emissions of hazardous
17 air pollutants into the plan approval or operating permit of any
18 source within the category or subcategory. At a minimum, the
19 performance or emission standard established on a case-by-case
20 basis by the department shall be equivalent to the limitation
21 that would apply to the source if a performance or emission
22 standard had been promulgated by the administrator under section
23 112 of the Clean Air Act.
24 (c) Nothing in this section shall alter or otherwise affect
25 the department's existing authority to prevent air pollution
26 from hazardous air pollutants by regulation or on a case-by-case
27 basis during the department's review of a plan approval or
28 operating permit application.
29 Section 7.1 Compliance Review.--(a) The department shall
30 not issue, reissue or modify any plan approval or permit
19910H2196B2756 - 29 -
1 pursuant to this act or amend any plan approval or permit issued
2 under this act and may suspend, terminate or revoke any permit
3 or plan approval previously issued under this act if it finds
4 that the applicant or permittee or a partner, parent or
5 subsidiary corporation of the applicant or permittee is in
6 violation of this act, or the rules and regulations promulgated
7 under this act, any plan approval, permit or order of the
8 department, as indicated by the department's compliance docket,
9 unless the violation is being corrected to the satisfaction of
10 the department.
11 (b) The department may refuse to issue any plan approval or
12 permit pursuant to this act if it finds that the applicant or
13 permittee or a partner, parent or subsidiary corporation of the
14 applicant or permittee has shown a lack of intention or ability
15 to comply with this act or the regulations promulgated under
16 this act or any plan approval, permit or order of the
17 department, as indicated by past or present violations, unless
18 the lack of intention or ability to comply is being or has been
19 corrected to the satisfaction of the department.
20 Section 7.2. Permit Compliance Schedules.--In addition to
21 the other enforcement provisions of this act, the department may
22 issue a permit under section 6.1(b)(3) and (4) of this act to a
23 source that is out of compliance with this act, the Clean Air
24 Act or the regulations promulgated under either this act or the
25 Clean Air Act. Any such permit must contain an enforceable
26 schedule requiring the source to attain compliance. The
27 compliance schedule may contain interim milestone dates for
28 completing any phase of the required work, as well as a final
29 compliance date, and shall contain stipulated penalties for
30 failure to meet the compliance schedule. If the permittee fails
19910H2196B2756 - 30 -
1 to achieve compliance by the final compliance date, the permit
2 shall terminate. The permit shall be part of an overall
3 resolution of the outstanding noncompliance and shall include
4 the payment of an appropriate civil penalty for past violations
5 and shall contain such other terms and conditions as the
6 department deems appropriate. A permit may incorporate by
7 reference a compliance schedule contained within a consent order
8 and agreement, including all provisions related to
9 implementation or enforcement of the compliance schedule or
10 consent order and agreement.
11 Section 7.3. Responsibilities of Owners and Operators.--(a)
12 Whenever the department finds that air pollution or danger of
13 air pollution is or may be resulting from an air contamination
14 source in the Commonwealth, the department may order the owner,
15 operator, landowner or occupier to take corrective action in a
16 manner satisfactory to the department, or it may order the
17 owner, operator, landowner or occupier to allow access to the
18 land by the department or a third party to take such action.
19 (b) For purposes of collecting or recovering the costs
20 involved in taking corrective action or pursuing a cost recovery
21 action pursuant to an order or recovering the cost of
22 litigation, oversight, monitoring, sampling, testing and
23 investigation related to a corrective action, the department may
24 collect the amount in the same manner as civil penalties are
25 assessed and collected following the process for assessment and
26 collection of a civil penalty contained in section 9.1 of this
27 act.
28 Section 7.4. Compliance Advisory Committee.--(a) There is
29 hereby established the Compliance Advisory Committee pursuant to
30 section 507 of the Clean Air Act.
19910H2196B2756 - 31 -
1 (b) The Compliance Advisory Committee shall perform all of
2 the following:
3 (1) Render advisory opinions concerning the effectiveness of
4 the small business stationary source technical and environmental
5 compliance assistance program, difficulties encountered and
6 degree and severity of enforcement.
7 (2) Make periodic reports to the administrator concerning
8 the Small Business Stationary Source Technical and Environmental
9 Compliance Assistance Program.
10 (3) Review information for small business stationary sources
11 to assure such information is understandable by the layperson.
12 (4) Have the Small Business Stationary Source Technical and
13 Environmental Compliance Assistance Program serve as the
14 secretariat for the development and dissemination of such
15 reports and advisory opinions.
16 (c) The committee shall consist of 11 members as follows:
17 (1) Four members appointed by the Governor, three of whom
18 shall not be owners, or representatives of owners of small
19 business stationary sources.
20 (2) Four members, each of whom shall be an owner or the
21 representative of an owner of a small business stationary
22 source. Of these four members, one shall be appointed by each of
23 the following:
24 (i) The Majority Leader of the Senate.
25 (ii) The Minority Leader of the Senate.
26 (iii) The Majority Leader of the House of Representatives.
27 (iv) The Minority Leader of the House of Representatives.
28 (3) The Secretary of Commerce or his designee.
29 (4) The Secretary of Environmental Resources or his
30 designee.
19910H2196B2756 - 32 -
1 (5) The Small Business Advocate or his designee.
2 (d) The terms of appointed members shall be for four years.
3 Vacancies shall be filled by the original appointing for the
4 remainder of the unexpired term. Initial terms of appointed
5 members shall be as follows:
6 (1) Of the members appointed by the Governor under
7 subsection (c)(1), two members shall be appointed for two years
8 and two members shall be appointed for four years.
9 (2) Of the members appointed under subsection (c)(2), the
10 Majority Leader of the Senate shall appoint one member for four
11 years, the Minority Leader of the Senate shall appoint one
12 member for two years, the Majority Leader of the House of
13 Representatives shall appoint one member for three years and the
14 Minority Leader of the House of Representatives shall appoint
15 one member for one year.
16 Section 9. Sections 8, 9, 9.1 and 9.2 of the act, amended or
17 added October 26, 1972 (P.L.989, No.245), are amended to read:
18 Section 8. Unlawful Conduct.--It shall be unlawful to fail
19 to comply with [any rule or regulation of the board], or to
20 cause or assist in the violation of, any of the provisions of
21 this act, the Clean Air Act or the rules and regulations adopted
22 under either this act or the Clean Air Act; or to fail to comply
23 with any order, plan approval, permit or other requirement of
24 the department[, to violate or to assist in the violation of any
25 of the provisions of this act or rules and regulations adopted
26 hereunder, to cause air pollution, or to in any manner hinder,
27 obstruct, delay, resist, prevent or in any way interfere or
28 attempt to interfere with the department or its personnel in the
29 performance of any duty hereunder.] or to cause a public
30 nuisance; or to cause air pollution, soil or water pollution
19910H2196B2756 - 33 -
1 resulting from an air pollution incident; or to hinder,
2 obstruct, prevent or interfere with the department or its
3 personnel in their performance of any duty hereunder, including
4 denying the department access to the source or facility; or to
5 violate the provisions of 18 Pa.C.S. § 4903 (relating to false
6 swearing) or 4904 (relating to unsworn falsification to
7 authorities) in regard to papers required to be submitted under
8 this act. The owner or operator of an air contamination source
9 and the landowner or occupier on whose land an air contamination
10 source is or was located shall not allow pollution of the air,
11 water or other natural resources of the Commonwealth resulting
12 from the source.
13 [Section 9. Penalties.--(a) Summary offense. Any person as
14 herein defined, except a department, board, bureau or agency of
15 the Commonwealth, engaging in unlawful conduct as set forth in
16 section 8 of this act, shall, for each offense, upon conviction
17 thereof in a summary proceeding before a district justice,
18 magistrate, alderman or justice of the peace, be sentenced to
19 pay the costs of prosecution and a fine of not less than one
20 hundred dollars ($100.00) nor more than one thousand dollars
21 ($1,000.00), and, in default thereof, to undergo imprisonment of
22 not less than ten (10) days nor more than thirty (30) days.
23 (b) Misdemeanors. Any person as herein defined, except a
24 department, board, bureau or agency of the Commonwealth, who,
25 within two years after being convicted of a summary offense
26 pursuant to subsection (a) of this section, engages in similar
27 unlawful conduct, shall be guilty of a misdemeanor and, upon
28 conviction thereof, shall, for each separate offense, be subject
29 to a fine of not less than five hundred dollars ($500.00) nor
30 more than five thousand dollars ($5,000.00), or to imprisonment
19910H2196B2756 - 34 -
1 for a period of not more than one year for each separate offense
2 hereunder, or both. For the purposes of this subsection, similar
3 unlawful conduct shall mean a violation of the same order of the
4 department, or a violation of the same provision of any rule or
5 regulation of the department by the same organizational unit of
6 the defendant.
7 (c) For the purpose of this section, violations on separate
8 days shall be considered separate offenses. Where a person
9 engages in continuing unlawful conduct, such person shall be
10 guilty of separate offenses for each day such conduct continues
11 up until the time of hearing or trial.
12 (d) Upon conviction of an association, partnership or
13 corporation of an offense under subsection (a) or (b) of this
14 section, the responsible members, officers, employes or agents
15 may be imprisoned for the term provided therein which shall run
16 concurrently with any term of imprisonment imposed upon such
17 persons individually upon conviction for the same offense.
18 Section 9.1. Civil Penalties.--In addition to proceeding
19 under any other remedy available at law, or in equity, for a
20 violation of a provision of this act, or a rule or regulation of
21 the board, or an order of the department, the hearing board,
22 after hearing, may assess a civil penalty upon a person for such
23 violation. Such a penalty may be assessed whether or not the
24 violation was wilful. The civil penalty so assessed shall not
25 exceed ten thousand dollars ($10,000.00), plus up to two
26 thousand five hundred dollars ($2,500.00) for each day of
27 continued violation. In determining the amount of the civil
28 penalty, the hearing board shall consider the wilfulness of the
29 violation, damage or injury to the outdoor atmosphere of the
30 Commonwealth or its uses, and other relevant factors. It shall
19910H2196B2756 - 35 -
1 be payable to the Commonwealth of Pennsylvania and shall be
2 collectible in any manner provided at law for the collection of
3 debt. If any person liable to pay any such penalty neglects or
4 refuses to pay the same after demand, the amount, together with
5 interest and any costs that may accrue, shall be a lien in favor
6 of the Commonwealth upon the property, both real and personal,
7 of such person, but only after same has been entered and
8 docketed of record by the prothonotary of the county where such
9 is situated. The hearing board may, at any time, transmit to the
10 prothonotaries of the respective counties certified copies of
11 all such liens, and it shall be the duty of each prothonotary to
12 enter and docket the same of record in his office, and to index
13 the same as judgments are indexed, without requiring the payment
14 of costs as a condition precedent to the entry thereof.]
15 Section 9. Penalties.--(a) Any person who violates any
16 provision of this act, the Clean Air Act, any rule or regulation
17 adopted under either this act or the Clean Air Act, any order of
18 the department or any condition or term of any plan approval or
19 permit issued pursuant to this act commits a summary offense and
20 shall, upon conviction, be sentenced to pay a fine of not less
21 than five hundred dollars ($500.00) nor more than five thousand
22 dollars ($5,000.00) for each separate offense, and, in default
23 of the payment of such fine, may be sentenced to imprisonment
24 for ninety (90) days for each separate offense. Employes of the
25 department authorized to conduct inspections or investigations
26 are hereby declared to be law enforcement officers authorized to
27 issue or file citations for summary violations under this act,
28 and the General Counsel is hereby authorized to prosecute these
29 offenses. For purposes of this subsection, a summary offense may
30 be prosecuted before any district justice in the county where
19910H2196B2756 - 36 -
1 the offense occurred. There is no accelerated rehabilitative
2 disposition authorized for a summary offense.
3 (b) (1) Any person who wilfully or negligently violates any
4 provision of this act, the Clean Air Act, any rule or regulation
5 adopted under either this act or the Clean Air Act, any order of
6 the department or any condition or term of any plan approval or
7 permit issued pursuant to this act commits a misdemeanor of the
8 second degree and shall, upon conviction, be sentenced to pay a
9 fine of not less than ten thousand dollars ($10,000.00) nor more
10 than fifty thousand dollars ($50,000.00) for each separate
11 offense or to imprisonment for a period of not more than two (2)
12 years for each separate offense, or both.
13 (2) Any person who knowingly makes any false statement or
14 representation in any application, record, report, certification
15 or other document required to be either filed or maintained by
16 this act, the Clean Air Act or the regulations promulgated under
17 either this act or the Clean Air Act commits a misdemeanor of
18 the second degree and shall, upon conviction, be sentenced to
19 pay a fine of not less than ten thousand dollars ($10,000.00)
20 nor more than fifty thousand dollars ($50,000.00) for each
21 separate offense or to imprisonment for a period of not more
22 than two (2) years for each separate offense, or both.
23 (3) Any person who negligently releases into the ambient air
24 any hazardous air pollutant listed under section 112 of the
25 Clean Air Act or any extremely hazardous substance listed under
26 section 302(a)(2) of the Superfund Amendments and
27 Reauthorization Act of 1986 (Public Law 99-499, 100 Stat. 1613)
28 that is not listed in section 112 of the Clean Air Act and who
29 at the time negligently places another person in imminent danger
30 of death or serious bodily injury commits a misdemeanor of the
19910H2196B2756 - 37 -
1 third degree and shall, upon conviction, be sentenced to pay a
2 fine of not less than ten thousand dollars ($10,000.00) nor more
3 than fifty thousand dollars ($50,000.00) for each separate
4 offense or to imprisonment for a period of not more than one (1)
5 year for each separate offense, or both.
6 (c) (1) Any person who knowingly releases into the ambient
7 air any hazardous air pollutant listed under section 112 of the
8 Clean Air Act or any extremely hazardous substance listed under
9 section 302(a)(2) of the Superfund Amendments and
10 Reauthorization Act of 1986 that is not listed in section 112 of
11 the Clean Air Act and who knows at the time that he thereby
12 places another person in imminent danger of death or serious
13 bodily injury commits a felony of the first degree and shall,
14 upon conviction, be sentenced to pay a fine of not less than
15 twenty-five thousand dollars ($25,000.00) nor more than one
16 hundred thousand dollars ($100,000.00) per day for each
17 violation or to imprisonment for a period of not less than two
18 (2) years nor more than twenty (20) years, or both. Any person
19 which is an organization committing such violation shall, upon
20 conviction under this clause, be subject to a fine of not more
21 than one million dollars ($1,000,000.00) per day for each
22 violation. If a conviction of any person under this clause is
23 for a violation committed after a first conviction of such
24 person under this clause, the maximum punishment shall be
25 doubled with respect to both the fine and imprisonment.
26 (2) In determining whether a defendant who is an individual
27 knew that the violation placed another person in imminent danger
28 of death or serious bodily injury:
29 (i) the defendant is responsible only for actual awareness
30 or actual belief possessed; and
19910H2196B2756 - 38 -
1 (ii) knowledge possessed by a person other than the
2 defendant, but not by the defendant, may not be attributed to
3 the defendant; except that, in proving a defendant's possession
4 of actual knowledge, circumstantial evidence may be used,
5 including evidence that the defendant took affirmative steps to
6 be shielded from relevant information.
7 (3) It is an affirmative defense to a prosecution under this
8 subsection that the conduct charged was freely consented to by
9 the person endangered and that the danger and conduct charged
10 were reasonably foreseeable hazards of either of the following:
11 (i) An occupation, a business or a profession, and the
12 person had been made aware of the risks involved prior to giving
13 consent.
14 (ii) Medical treatment or medical or scientific
15 experimentation conducted by professionally approved methods,
16 and such other person had been made aware of the risks involved
17 prior to giving consent. The defendant may establish an
18 affirmative defense under this subclause by a preponderance of
19 the evidence.
20 (4) For purposes of this subsection, the term "organization"
21 means a legal entity, other than a government, established or
22 organized for any purpose, and the term includes a corporation,
23 a company, an association, a firm, a partnership, a joint stock
24 company, a foundation, an institution, a trust, a society, a
25 union or any other association of persons.
26 (d) For purposes of subsections (b) and (c), the term
27 "serious bodily injury" means bodily injury which involves a
28 substantial risk of death, unconsciousness, extreme physical
29 pain, protracted and obvious disfigurement or protracted loss or
30 impairment of the function of a bodily member, organ or mental
19910H2196B2756 - 39 -
1 faculty.
2 (e) Upon conviction of an association, partnership or
3 corporation of an offense under subsection (a), (b) or (c) of
4 this section, the responsible members, officers, employes or
5 agents may be imprisoned for the term provided therein which
6 shall run concurrently with any term of imprisonment imposed
7 upon such persons individually upon conviction for the same
8 offense.
9 Section 9.1. Civil Penalties.--(a) In addition to
10 proceeding under any other remedy available at law or in equity
11 for a violation of a provision of this act, the Clean Air Act or
12 any rule or regulation promulgated under either this act or the
13 Clean Air Act or any order, plan approval or permit issued
14 pursuant to this act, the department may assess a civil penalty
15 for the violation. The penalty may be assessed whether or not
16 the violation was wilful. The civil penalty so assessed shall
17 not exceed twenty-five thousand dollars ($25,000.00) per day for
18 each violation. In determining the amount of the penalty, the
19 department shall consider the wilfulness of the violation;
20 damage to air, soil, water or other natural resources of the
21 Commonwealth or their uses; financial benefit to the person in
22 consequence of the violation; deterrence of future violations;
23 cost to the department; and other relevant factors.
24 (b) When the department proposes to assess a civil penalty,
25 it shall inform the person of the proposed amount of the
26 penalty. The person charged with the penalty shall then have
27 thirty (30) days to pay the proposed penalty in full, or if the
28 person wishes to contest the amount of the penalty or the fact
29 of the violation to the extent not already established, the
30 person shall forward the proposed amount of the penalty to the
19910H2196B2756 - 40 -
1 hearing board within the thirty (30) day period for placement in
2 an escrow account with the State treasurer or any Commonwealth
3 bank or post an appeal bond to the hearing board within thirty
4 (30) days in the amount of the proposes penalty, provided that
5 such bond is executed by a surety licensed to do business in the
6 Commonwealth and is satisfactory to the department. If, through
7 administrative or final judicial review of the proposed penalty,
8 it is determined that no violation occurred or that the amount
9 of the penalty shall be reduced, the hearing board shall, within
10 thirty (30) days, remit the appropriate amount to the person
11 with any interest accumulated by the escrow deposit. Failure to
12 forward the money or the appeal bond at the time of the appeal
13 shall result in a waiver of all legal rights to contest the
14 violation or the amount of the civil penalty. The amount
15 assessed after administrative hearing or after waiver of
16 administrative hearing shall be payable to the Commonwealth and
17 shall be collectible in any manner provided by law for the
18 collection of debts, including the collection of interest at the
19 rate established in section 6.3(c), which shall run from the
20 date of assessment of the penalty. If any person liable to pay
21 any such penalty neglects or refuses to pay the same after
22 demand, the amount, together with interest and any costs that
23 may accrue, shall constitute a debt of such person, as may be
24 appropriate, to the Clean Air Fund. The debt shall constitute a
25 lien on all property owned by said person when a notice of lien
26 incorporating a description of the property of the person
27 subject to the action is duly filed with the prothonotary of the
28 court of common pleas where the property is located. The
29 prothonotary shall promptly enter upon the civil judgment or
30 order docket, at no cost to the department, the name and address
19910H2196B2756 - 41 -
1 of the person, as may be appropriate, and the amount of the lien
2 as set forth in the notice of lien. Upon entry by the
3 prothonotary, the lien shall attach to the revenues and all real
4 and personal property of the person, whether or not the person
5 is solvent. The notice of lien, filed pursuant to this
6 subsection, which affects the property of the person shall
7 create a lien with priority over all subsequent claims or liens
8 which are filed against the person, but it shall not affect any
9 valid lien, right or interest in the property filed in
10 accordance with established procedure prior to the filing of a
11 notice of lien under this subsection.
12 Section 9.2. Disposition of Fees, Fines and Civil
13 Penalties.--(a) All fines, civil penalties and fees collected
14 under this act shall be paid into the Treasury of the
15 Commonwealth in a special fund known as the ["]Clean Air
16 Fund,["] hereby established, which, along with interest earned,
17 shall be administered by the department for use in the
18 elimination of air pollution. The department may establish such
19 separate accounts as may be necessary or appropriate to
20 implement the requirements of this act and the Clean Air Act.
21 The board [shall] may adopt rules and regulations for the
22 management and use of the money in the fund.
23 (b) The Clean Air Fund may be supplemented by appropriations
24 from the General Assembly, the Federal, State or local
25 government or any private source.
26 (c) The Clean Air Fund shall not be subject to 42 Pa.C.S.
27 Ch. 37 Subch. C (relating to judicial computer system).
28 Section 10. The act is amended by adding a section to read:
29 Section 9.3. Continuing violations.--Each day of continued
30 violation and each violation of any provision of this act, the
19910H2196B2756 - 42 -
1 Clean Air Act, any rule or regulation adopted under either this
2 act or the Clean Air Act, any order of the department or any
3 condition or term of any plan approval or permit issued pursuant
4 to this act shall constitute a separate offense and violation.
5 Section 11. Section 10 of the act is repealed.
6 Section 12. The act is amended by adding sections to read:
7 Section 10.1. Enforcement Orders.--(a) The department may
8 issue such orders as are necessary to aid in the enforcement of
9 the provisions of this act. These orders shall include, but
10 shall not be limited to, orders modifying, suspending,
11 terminating or revoking any plan approvals or permits, orders
12 requiring persons to cease unlawful activities or cease
13 operation of a facility or air contamination source which, in
14 the course of its operation, is in violation of any provision of
15 this act, the Clean Air Act, any rule or regulation promulgated
16 under either this act or the Clean Air Act, plan approval or
17 permit, order to take corrective action or to abate a public
18 nuisance, or an order requiring the testing, sampling or
19 monitoring of any air contamination source or orders requiring
20 production of information. Such an order may be issued if the
21 department finds that any condition existing in or on the
22 facility or source involved is causing or contributing to or is
23 creating a danger of air pollution or if it finds that the
24 permittee or any person is in violation of any provision of this
25 act or of any rule, regulation or order of the department.
26 (b) The department may, in its order, require compliance
27 with such conditions as are necessary to prevent or abate air
28 pollution or effect the purposes of this act.
29 (c) An order issued under this section shall take effect
30 upon notice, unless the order specifies otherwise. An appeal to
19910H2196B2756 - 43 -
1 the hearing board of the department's order shall not act as a
2 supersedeas: Provided, however, That, upon application and for
3 cause shown, the hearing board may issue such a supersedeas
4 under rules established by the hearing board. The department may
5 petition the Commonwealth Court for enforcement of any order or
6 portion thereof and Commonwealth Court shall grant the petition
7 if it finds, after a hearing, that the order has been issued and
8 has either become final or, if appealed, has not been superseded
9 by the hearing board.
10 (d) The authority of the department to issue an order under
11 this section is in addition to any remedy or penalty which may
12 be imposed pursuant to this act. The failure to comply with any
13 such order is hereby declared to be a public nuisance.
14 Section 10.2. Appealable actions.--Any person aggrieved by
15 an order or other administrative action of the department issued
16 pursuant to this act or any person who participated in the
17 public comment process for a plan approval or permit shall have
18 the right, within thirty (30) days from actual or constructive
19 notice of the action, to appeal the action to the hearing board
20 in accordance with the act of July 13, 1988 (P.L.530, No.94),
21 known as the Environmental Hearing Board Act, and 2 Pa.C.S. Ch.
22 5 Subch. A (relating to practice and procedure of Commonwealth
23 agencies).
24 Section 10.3. Limitation on action.--The provisions of any
25 other statute to the contrary notwithstanding, actions for civil
26 or criminal penalties under this act may be commenced at any
27 time within a period of twenty (20) years from the date the
28 offense is discovered.
29 Section 13. Sections 11, 12, 12.1, 13 and 13.1 of the act,
30 amended or added October 26, 1972 (P.L.989, No.245), are amended
19910H2196B2756 - 44 -
1 to read:
2 Section 11. Powers Reserved to the Department Under Existing
3 Laws.--Nothing in this act shall limit in any way whatever the
4 powers conferred upon the department under laws other than this
5 act, it being expressly provided that all such powers are
6 preserved to the department and may be freely exercised by it.
7 [The department shall have the right upon approval of the
8 Attorney General, to petition a court of competent jurisdiction
9 to order the abatement of any nuisance or condition detrimental
10 to health. For that purpose no] No court exercising general
11 equitable jurisdiction shall be deprived of such jurisdiction
12 even though [such] a nuisance or condition detrimental to health
13 is subject to regulation or other action by the board under this
14 act.
15 Section 12. Powers Reserved to Political Subdivisions.--(a)
16 Nothing in this act shall prevent counties, cities, towns,
17 townships or boroughs from enacting ordinances with respect to
18 air pollution which will not be less stringent than the
19 provisions of this act, the Clean Air Act or the rules and
20 regulations promulgated [pursuant to its provisions.] under
21 either this act or the Clean Air Act. This act shall not be
22 construed to repeal existing ordinances, resolutions or
23 regulations of the aforementioned political subdivisions
24 existing at the time of the effective date of this act, except
25 as they may be less stringent than the provisions of this
26 act[.], the Clean Air Act or the rules or regulations adopted
27 under either this act or the Clean Air Act.
28 (b) The administrative procedures for the abatement,
29 reduction, prevention and control of air pollution set forth in
30 this act shall not apply to any [political subdivision of the
19910H2196B2756 - 45 -
1 Commonwealth which has an approved air pollution control
2 agency.] county of the first or second Class of the Commonwealth
3 which has and implements an air pollution control program that,
4 at a minimum, meets the requirements of this act, the Clean Air
5 Act and the rules and regulations promulgated under both this
6 act and the Clean Air Act and has been approved by the
7 department.
8 (c) (1) Whenever, either upon complaint made to or
9 initiated by the department, the department finds that any
10 person is in violation of air pollution control standards, or
11 rules and regulations promulgated pursuant to the grant of
12 authority made in subsection (b), the department shall give
13 notification of that fact to that person and to the air
14 pollution control agency of the [political subdivision] county
15 involved.
16 (2) If such violation continues to exist after said
17 notification has been given, the department may take any
18 abatement action provided for under the terms of this act.
19 (d) Whenever the department finds that violations of [the
20 air pollution control standards, or rules and regulations
21 promulgated pursuant to the grant of authority under subsection
22 (b)] this act, the Clean Air Act or the rules and regulations
23 promulgated under either this act or the Clean Air Act are so
24 widespread that such violations appear to result from a failure
25 of the local county control agency involved to enforce those
26 [standards, or rules and regulations,] requirements, the
27 department may assume the authority to enforce [those standards,
28 and rules and regulations.] this act in that county.
29 (e) The department shall have the power to refuse approval,
30 or to suspend or rescind approval, once given, to any county air
19910H2196B2756 - 46 -
1 pollution control agency if the department finds that such
2 county agency is unable or unwilling [so] to conduct an air
3 pollution control program [as] to abate or reduce air pollution
4 problems within its jurisdiction in [an effective manner.]
5 accordance with the requirements of this act, the Clean Air Act
6 or the rules and regulations promulgated under both this act and
7 the Clean Air Act.
8 (f) Whenever the department takes action under the
9 provisions of subsections (d) or (e) of this section, it shall
10 give written notification to the air pollution control agency of
11 the [political subdivision] county involved and such
12 notification shall be [subject to the appeal provisions of
13 clause (4.1) of section 4 of this act.] an appealable action.
14 (g) Irrespective of subsection (b) above, and in order that
15 the civil and criminal penalties and equitable remedies for air
16 pollution violations shall be uniform [except insofar as they
17 are inconsistent with the jurisdictional limitations of the
18 minor judiciary and the Philadelphia Municipal Court,]
19 throughout the Commonwealth, the penalties and remedies set
20 forth in this act [in sections 9, 9.1, 10 and 11,] shall be the
21 penalties and remedies available for enforcement of any
22 municipal air pollution ordinances or regulations, and shall be
23 available to any municipality, public official, or other person
24 having standing to initiate proceedings for the enforcement of
25 such municipal ordinances or regulations, and the amounts of the
26 fines or civil penalties set forth herein shall be the amounts
27 of the fines or civil penalties assessable and to be levied for
28 violations of any municipal ordinances or regulations. It is
29 hereby declared to be the purpose of this section to enunciate
30 further that the purpose of this act is to provide additional
19910H2196B2756 - 47 -
1 and cumulative remedies to abate the pollution of the air of
2 this Commonwealth. Any action for the assessment of civil
3 penalties brought for the enforcement of a municipal air
4 pollution ordinance or regulation shall be brought in accordance
5 with the procedures set forth in such ordinance. Where any
6 municipal ordinance or regulation does not provide a procedure
7 for the assessment of civil penalties, the provisions [of
8 subsection (h) of this section] related to assessment and
9 collection of civil penalties of section 9.1 of this act shall
10 apply.
11 [(h) Any person, as herein defined, except a department,
12 board, bureau, or agency of the Commonwealth, engaging in
13 conduct in violation of a municipal air pollution control
14 ordinance, shall, for each offense, upon conviction thereof in a
15 civil proceeding before a judge of the Municipal Court of
16 Philadelphia, district justice, magistrate, alderman or justice
17 of the peace be sentenced to pay the cost of prosecution and a
18 civil penalty of not less than twenty-five dollars ($25.00), nor
19 more than five hundred dollars ($500.00), for each day of
20 continued violation. Such a penalty may be assessed whether or
21 not the violation was wilful. Failure to pay any such penalty
22 within the time prescribed by law shall be punishable as a civil
23 contempt. Notwithstanding anything contained in section 9.2 of
24 this act, all civil penalties and fees collected under this
25 subsection shall be paid to the appropriate political
26 subdivision, as provided by law, and shall be collectible in any
27 manner provided by law for the collection of debt. If any person
28 liable to pay any such penalty neglects or refuses to pay the
29 same after demand, the amount, together with interest and any
30 costs that may accrue, shall be a lien in favor of the
19910H2196B2756 - 48 -
1 appropriate political subdivision upon the property, both real
2 and personal, of such person, but only after the same has been
3 entered and docketed of record by the prothonotary of the county
4 where such is situated: Provided, That nothing contained in this
5 subsection shall preclude any public official from seeking, at
6 law or at equity or before any appropriate administrative body,
7 the assessment of civil penalties in the amount provided by
8 section 9.1 of this act.]
9 Section 12.1. Construction.--Nothing in this act shall be
10 construed as estopping the Commonwealth, or any district
11 attorney or solicitor of a municipality, from proceeding in
12 courts of law or equity to abate pollutions forbidden under this
13 act, or abate nuisances under existing law. It is hereby
14 declared to be the purpose of this act to provide additional and
15 cumulative remedies to abate the pollution of the air of this
16 Commonwealth, and nothing contained in this act shall in any way
17 abridge or alter rights of action or remedies now or hereafter
18 existing in equity, or under the common law or statutory law,
19 criminal or civil, nor shall any provision of this act, or the
20 granting of any plan approval or permit under this act, or any
21 act done by virtue of this act, be construed as estopping the
22 Commonwealth, persons or municipalities, in the exercise of
23 their rights under the common law or decisional law or in
24 equity, from proceeding in courts of law or equity to suppress
25 nuisances, or to abate any pollution now or hereafter existing,
26 or enforce common law or statutory rights. No courts of this
27 Commonwealth having jurisdiction to abate public or private
28 nuisance shall be deprived of such jurisdiction to abate any
29 private or public nuisance instituted by any person for the
30 reason that such nuisance constitutes air pollution.
19910H2196B2756 - 49 -
1 [Section 13. Public Nuisances.--A violation of any order or
2 of any provision of any rule or regulation promulgated pursuant
3 to a local air pollution code or to a State air pollution act,
4 which limits or controls the emission of any air contaminant
5 shall constitute a public nuisance and shall be abatable in the
6 manner provided by law.]
7 Section 13. Public Nuisances.--A violation of this act, the
8 Clean Air Act or of any rule or regulation promulgated under
9 either this act or the Clean Air Act or any order, plan approval
10 or permit issued by the department under this act shall
11 constitute a public nuisance. The department shall have the
12 authority to order any person causing a public nuisance to abate
13 the public nuisance. In addition, the department or any
14 Commonwealth agency which undertakes to abate a public nuisance
15 may recover the expenses of abatement following the process for
16 assessment and collection of a civil penalty contained in
17 section 9.1 of this act. Whenever the nuisance is maintained or
18 continued contrary to this act, the Clean Air Act or any rule or
19 regulation promulgated under either this act or the Clean Air
20 Act, any order, plan approval or permit, the nuisance may be
21 abatable in the manner provided by this act. Any person who
22 causes the public nuisance shall be liable for the cost of
23 abatement.
24 Section 13.1. Search Warrants.--Whenever an agent or employe
25 of the department, charged with the enforcement of the
26 provisions of this act, has been refused access to property, or
27 has been refused the right to examine any air contamination
28 source, or air pollution control equipment or device, or is
29 refused access to or examination of books, papers and records
30 pertinent to any matter under investigation, such agent or
19910H2196B2756 - 50 -
1 employe may apply for a search warrant to any Commonwealth
2 official authorized by the laws of the Commonwealth to issue the
3 same to enable him to have access [and], examine and seize such
4 property, air contamination source, air pollution control
5 equipment or device, or books, papers and records, as the case
6 may be. It shall be sufficient probable cause to issue a search
7 warrant that the inspection is necessary to properly enforce the
8 provisions of this act.
9 Section 14. Sections 13.3, 13.4 and 13.5 of the act are
10 repealed.
11 Section 15. The act is amended by adding sections to read:
12 Section 13.6. Suits to Abate Nuisances and Restrain
13 Violations.--(a) Any activity or condition declared by this act
14 to be a nuisance or which is otherwise in violation of this act
15 shall be abatable in the manner provided by law or equity for
16 the abatement of public nuisance. In addition, in order to
17 restrain or prevent any violation of this act, the Clean Air Act
18 or the rules and regulations promulgated under either this act
19 or the Clean Air Act or any plan approval or permit or orders
20 issued by the department, or to restrain the maintenance and
21 threat of public nuisance, suits may be instituted in equity or
22 at law in the name of the Commonwealth upon relation of the
23 Attorney General, the General Counsel, the district attorney of
24 any county or the solicitor of any municipality affected, after
25 notice has first been served upon the Attorney General of the
26 intention of the General Counsel, district attorney or solicitor
27 to so proceed. Such proceedings may be prosecuted in the
28 Commonwealth Court or in the court of common pleas of the county
29 where the activity has taken place, the condition exists or the
30 public is affected, and, to that end, jurisdiction is hereby
19910H2196B2756 - 51 -
1 conferred in law and equity upon such courts. Except in cases of
2 emergency where, in the opinion of the court, the exigencies of
3 the case require immediate abatement of the nuisance, the court
4 may, in its decree, fix a reasonable time during which the
5 person responsible for the nuisance may make provision for the
6 abatement of the same.
7 (b) In cases where the circumstances require it or the
8 public health is endangered, a mandatory preliminary injunction,
9 special injunction or temporary restraining order may be issued
10 upon the terms prescribed by the court, notice of the
11 application therefor having been given to the defendant in
12 accordance with the rules of equity practice, and in any such
13 case the Attorney General, the General Counsel, the district
14 attorney or the solicitor of any municipality shall not be
15 required to give bond. In any such proceeding the court shall,
16 upon motion of the Commonwealth, issue a prohibitory or
17 mandatory preliminary injunction if it finds that the defendant
18 is engaging in unlawful conduct as defined by this act or is
19 engaged in conduct which is causing immediate and irreparable
20 harm to the public. In addition to an injunction, the court in
21 such equity proceedings may levy civil penalties in the same
22 manner as the department in accordance with section 9.1 of this
23 act.
24 (c) Except as provided in subsection (d) of this section,
25 any person having an interest which is or may be affected may
26 commence a civil action to compel compliance with this act or
27 any rule, regulation, order or plan approval or permit issued
28 pursuant to this act by any owner, operator, landowner or
29 occupier alleged to be causing or contributing to a violation of
30 any provision of this act, the Clean Air Act or any rule or
19910H2196B2756 - 52 -
1 regulation promulgated under either this act or the Clean Air
2 Act or any plan approval, permit or order issued by the
3 department. In addition to seeking to compel compliance, any
4 person may request the court to award civil damages. The court
5 shall use the factors and amounts contained in section 9.1 of
6 this act in awarding civil damages under this subsection. Such
7 damages shall be paid into the Clean Air Fund established by
8 section 9.2 of this act or be used to prevent air pollution in
9 the county where the violation occurred. Except where 42 Pa.C.S.
10 (relating to judiciary and judicial procedure) requires
11 otherwise, the courts of common pleas shall have jurisdiction of
12 such actions. Such an action may not be commenced if the
13 department has commenced and is diligently prosecuting a civil
14 action in a Federal or State court or is in litigation before
15 the hearing board to require the alleged violator to comply with
16 this act, the Clean Air Act, any rule or regulation promulgated
17 under either this act or the Clean Air Act or any order, plan
18 approval or permit issued pursuant to this act, but, in any such
19 action in a Federal or State court or before the hearing board,
20 any person having or representing an interest which is or may be
21 adversely affected may intervene as a matter of right without
22 posting bond.
23 (d) An action pursuant to subsection (c) of this section may
24 not be commenced prior to sixty (60) days after the plaintiff
25 has given notice, in writing, of the violation to the department
26 and to any alleged violator.
27 (e) The sixty (60) day notice provisions of subsection (d)
28 of this section to the contrary notwithstanding, any action
29 pursuant to subsection (c) of this section may be initiated
30 immediately upon written notification to the department in the
19910H2196B2756 - 53 -
1 case where the violation or condition complained of constitutes
2 an imminent threat to the health or safety of the plaintiff or
3 would immediately affect a legal interest of the plaintiff.
4 (f) The court, in issuing any final order in any action
5 brought pursuant to subsection (c) of this section, may award
6 costs of litigation, including attorney and expert witness fees,
7 to any party whenever the court determines such an award is
8 appropriate. Except as provided in subsection (b) of this
9 section, the court may, if a temporary restraining order or
10 preliminary injunction is sought, require the filing of a bond
11 or equivalent security in accordance with the Pennsylvania Rules
12 of Civil Procedure.
13 Section 16. This act shall take effect immediately.
J11L35DGS/19910H2196B2756 - 54 -