THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY HALUSKA, BARRAR, BENNINGHOFF, BEYER, CARROLL, FLECK, GODSHALL, GOODMAN, HUTCHINSON, LEVDANSKY, READSHAW, ROHRER, SIPTROTH, STABACK, BRENNAN AND WALKO, FEBRUARY 5, 2009

REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY, FEBRUARY 5, 2009  

AN ACT

Regulating prescribed burning practices; providing for the

powers and duties of the State Forester and the Department of

Conservation and Natural Resources; and establishing certain

immunities.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Prescribed

Burning Practices Act.

Section 2.  Legislative declaration and findings.

The General Assembly declares that prescribed burning is a

land management tool that benefits the safety of the public, the

environment and the economy of this Commonwealth. Therefore, the

General Assembly finds that:

(1)  Prescribed burning reduces naturally occurring

vegetative fuels. Reducing the fuel load reduces the risk and

severity of wildfires, thereby reducing the threat of loss of

life and property.

(2)  Public agencies and nongovernmental organizations in

this Commonwealth have invested millions of dollars to

purchase land for parks, wildlife areas, State forests,

nature preserves and other outdoor recreational purposes. For

many of these public and private lands, the use of prescribed

burning is essential to maintain specific resource values for

which the areas were acquired.

(3)  Forests, grasslands and other natural areas in this

Commonwealth constitute significant economic, biological and

aesthetic resources of Statewide importance. Prescribed

burning prepares sites for planting; removes undesirable

competing vegetation; accelerates nutrient cycling; controls

certain insect pests, pathogens and noxious weeds; and

promotes oak regeneration. In these communities, prescribed

burning improves and maintains the quality and quantity of

wildlife habitats.

(4)  Many of this Commonwealth's natural communities

require periodic fire for maintenance of their ecological

health. Prescribed burning is essential to the perpetuation,

restoration and management of many plant and animal

communities. Significant loss of this Commonwealth's

biological diversity will occur if fire is excluded from

these fire-dependent and fire-adapted communities.

(5)  Proper training in the purposes, use and application

of prescribed burning is necessary to ensure maximum benefits

and protection for the public.

(6)  Prescribed burning in the hands of trained, skilled

and experienced people is safe and often represents one of

the most cost-effective management techniques to accomplish

many ecosystem restoration objectives and ecological goals.

(7)  As development and urbanization increase in many

areas of this Commonwealth, concerns about potential

liability and nuisance complaints may inhibit the use of

prescribed burning as a conservation and safety tool.

Section 3.  Purpose.

The purpose of this act is to encourage the continued use of

prescribed burning for fuel reduction, ecological, forest,

wildlife and grassland management purposes.

Section 4.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Department."  The Department of Conservation and Natural

Resources of the Commonwealth.

"National Wildfire Coordinating Group."  The organization

comprised of representatives from Federal and State Government

agencies which has developed formal standards and programs

addressing wildland fire, including training, equipment and

operational requirements for the appropriate use of prescribed

fire.

"Prescribed burn" or "prescribed burning."  The planned and

controlled application of fire to existing vegetative fuels:

(1)  Under specified environmental conditions and

following appropriate precautionary measures, in order to

accomplish one or more specific land management objectives,

including, but not limited to, vegetative fuel reduction,

silvicultural treatments, wildlife habitat improvement and

management of grassland and other plant communities.

(2)  Conducted in compliance with a written prescribed

burn plan and under the supervision of a prescribed burn

manager.

"Prescribed burn manager."  An individual who successfully

completes and maintains the level of training and experience

required by the State Forester to review and approve a

prescribed burn plan and supervise a prescribed burn.

"Prescribed burn plan."  A written plan reviewed and approved

by a prescribed burn manager that includes measurable criteria

to:

(1)  Define the conditions for starting, controlling and

extinguishing a prescribed burn for a specified area or

multiple units within an area.

(2)  Guide the selection of appropriate management

responses.

(3)  Indicate other required action.

The plan may include information relating to burn duration,

smoke management, fuel and weather prescriptions, notification

of adjacent landowners, safety contingencies and other relevant

factors.

Section 5.  Regulatory standards.

Within six months from the effective date of this section,

the State Forester shall promulgate standards, which shall

include a 60-day public comment period, for the planning and

conduct of prescribed burning in this Commonwealth. In

developing the standards, the State Forester shall consult with

the Department of Environmental Protection, the Pennsylvania

Game Commission and other public agencies and private

organizations which have interest or experience in the practice

of prescribed burning. The standards shall include, but not be

limited to:

(1)  Minimum qualifications and training requirements for

prescribed burn managers and other persons participating in a

prescribed burn.

(2)  Required content for prescribed burn plans.

To the greatest extent practicable, the standards shall be

consistent with comparable requirements established by the

National Wildfire Coordinating Group.

Section 6.  Departmental regulations.

If deemed necessary and appropriate by the State Forester,

the department shall establish by regulation:

(1)  A certification and revocation process for

prescribed burn managers.

(2)  Requirements for the review and approval of

prescribed burn plans by the State.

(3)  A training program for prescribed burn managers and

other persons participating in a prescribed burn.

In the event such requirements are established, the department

is authorized to charge and collect fees from persons

participating in training or certification programs.

Section 7.  Prescribed burn plan.

(a)  Duty of prescribed burn manager to submit.--

(1)  Prior to execution of a prescribed burn plan, the

prescribed burn manager shall notify the Department of

Environmental Protection in writing of the intention to

conduct prescribed burning at the specific location of the

proposed prescribed burn and the range of dates during which

prescribed burns could take place.

(2)  The notification shall be provided to the Department

of Environmental Protection at least 25 working days before

the earliest possible date that a burn could occur. The

written notification shall include a copy of the prescribed

burn plan, or other such form as approved by the Department

of Environmental Protection.

(3)  The Department of Environmental Protection shall

review and provide comments, if necessary, on the prescribed

burn plan no later than five working days prior to the

earliest possible date that a burn could occur.

(b)  Contents.--A prescribed burn plan shall include

procedures that minimize the possibility that fire will escape

from the desired area and minimize danger to the public and

firefighting personnel from fire and smoke. The prescribed burn

plan shall be consistent with the prescribed burn standards

approved by the State Forester, and a prescribed burn shall be

executed pursuant to the plan.

Section 8.  Relationship to other laws.

The requirements of 25 Pa.Code § 129.14(a) and (b) (relating

to open burning) do not apply to a prescribed burn which is

executed pursuant to a prescribed burn plan consistent with

established standards approved by the State Forester under this

act. This section shall not be construed to otherwise limit the

authority of the Department of Environmental Protection under

the act of January 8, 1960 (1959 P.L.2119, No.787), known as the

Air Pollution Control Act, and the regulations promulgated under

this act.

Section 9.  Public interest.

A prescribed burn conducted in compliance with this act and

the act of January 8, 1960 (1959 P.L.2119, No.787), known as the

Air Pollution Control Act, is deemed to be in the public

interest and shall not constitute a public or private nuisance.

Section 10.  Prescribed burning requirements.

Prescribed burning under the provisions of this act shall be

conducted:

(1)  In compliance with standards established by the

State Forester pursuant to section 5.

(2)  In compliance with a prescribed burn plan which has

been reviewed and approved by a prescribed burn manager and

is available on site while the prescribed burn or burns are

conducted.

(3)  Only when at least one prescribed burn manager is

present on site to supervise the burn or burns that are being

conducted.

(4)  Only with the written consent of the property owner

or the owner's designee.

Section 11.  Immunities.

(a)  Civil or criminal penalty.--

(1)  No owner of property who contracts with or

authorizes a prescribed burn manager or person acting under

the direction of a prescribed burn manager to conduct or

permit a prescribed burn on the property pursuant to the

requirements of this act shall be subject to civil or

criminal penalty for damage or injury caused by the fire or

resulting smoke, unless negligence is proven.

(2)  No prescribed burn manager who executes and acts in

accordance with a prescribed burn plan that satisfies the

standards established pursuant to this act and who has

attained the qualifications for planning and conducting a

prescribed burn in accordance with the standards established

pursuant to this act shall be subject to civil or criminal

penalty for damage or injury caused by the fire or resulting

smoke, unless negligence is proven.

(3)  No person who acts under the direction of a

prescribed burn manager executing a prescribed burn plan that

satisfies the standards established pursuant to this act and

who has attained the relevant qualifications for

participating in a prescribed burn in accordance with the

standards established pursuant to this act shall be subject

to civil or criminal penalty for damage or injury caused by

the fire or resulting smoke, unless negligence is proven.

(b)  Private actions.--In a private civil action arising from

the conduct of a prescribed burn and damage or injury caused by

the fire or resulting smoke, proof of compliance with the

requirements of this act and the standards established pursuant

to this act shall be admissible evidence that the duty of care

for such activity has been met.

Section 12.  Effective date.

This act shall take effect immediately.