Packer Township Local Control, Sewage Sludge and Chemical Trespass Ordinance

pdf file version

Section 1—Name

This Ordinance shall be known and may be cited as the “Packer Township Local Control, Sewage Sludge and Chemical Trespass Ordinance.”

Section 2—Authority

This Ordinance is enacted pursuant to the authority granted to Packer Township by all relevant Federal and State laws and their corresponding regulations, and by the inherent right of the citizens of the Township of Packer to self-government, including, without limitation, the following:

The Declaration of Independence, which declares that people are born with “certain unalienable rights” and that governments are instituted among people to secure those rights;

The Pennsylvania Constitution, Article 1, Section 2, which declares that “all power is inherent in the people and all free governments are instituted for their peace, safety, and happiness;”

The Pennsylvania Constitution, Article 1, Section 26, which declares that “neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right;”

The Pennsylvania Constitution, Article I, Section 27, which provides for the “preservation of the natural, scenic, historic, and esthetic values of the environment;”

The provisions of The Second Class Township Code, as codified at 53 P.S. § 65101 et seq., which authorizes Packer Township to provide for the protection and preservation of natural and human resources, to promote, protect, and facilitate public health, safety, and general welfare, and to preserve and protect farmland, woodland, and the recreational uses of land within the Township;

The provisions of The Second Class Township Code, Article XV, as codified at 53 P.S. § 66506, which authorizes Packer Township to enact ordinances necessary for the proper management, care, and control of the township and its finances and the maintenance of peace, good government, health, and welfare of the township and its citizens, trade, commerce, and manufacturers;

The provisions of The Second Class Township Code, Article XV, as codified at 53 P.S. § 66521, which empowers Packer Township to appropriate moneys toward insect, pest, and vector programs;

The provisions of The Second Class Township Code, Article XV, as codified at 53 P.S. § 66527, which empowers Packer Township to adopt ordinances to secure the safety of persons or property within the township;

The provisions of The Second Class Township Code, Article XV, as codified at 53 P.S. § 66529, which empowers Packer Township to prohibit nuisances on private and public property and the carrying on of any offensive manufacture or business;

The provisions of The Second Class Township Code, Article XVI, as codified at 53 P.S. § 66601(e), which empowers Packer Township to adopt by reference all or any portion of a standard code as an ordinance of the Township;

The Solid Waste Management Act, 35 P.S. § 6018.101 et seq., which preserves the rights and remedies of municipalities concerning solid waste within their borders;

Municipal Waste Regulations, 25 Pa. Code §§ 271 and 275, et seq.; and

Land Application of Sewage Sludge, 40 C.F.R. Part 503.

Section 3—Findings and Purpose

In support of enactment of this Ordinance, the Board of Supervisors of Packer Township finds and declares that:

The land application of sewage sludge in Packer Township poses a significant threat to the health, safety, and welfare of the citizens and environment of Packer Township.

In April 2002, the Inspector General of the Environmental Protection Agency (EPA), which oversees state sewage sludge regulations, issued a report in which it concluded, “EPA cannot assure the public that current land application [of sewage sludge] practices are protective of human health and the environment.” Among the Inspector General’s concerns were the following: “failure to properly manage sludge may have adverse effects on human health and the environment”; “EPA does not have an effective program of ensuring compliance with land application requirements”; and state officials have criticized the lack of EPA oversight, staffing, and commitment toward ensuring the safety of land applied sludge.

In 1994, eleven-year-old Tony Behun from Rush Township, Centre County, Pennsylvania, died from a staphylococcus infection shortly after being exposed to sewage sludge. The following year, seventeen-year-old Daniel Pennock from Reading, Pennsylvania, died from a staphylococcus infection shortly after being exposed to sewage sludge. The U.S. Environmental Protection Agency (EPA) recognizes staphylococcus as a potential pathogenic component of sewage sludge.

The Board of Supervisors of Packer Township, on behalf of the Township residents, recognizes that over eighty thousand (80,000) corporate-produced chemicals are currently used in the United States, and that scientists estimate that over seven hundred (700) of those corporate-produced chemicals are now found within the body of every human. Many of these chemicals can be found in treated sewage sludge. Only a small percentage of those chemicals has ever been screened for even one potential health effect, such as cancer, reproductive toxicity, developmental toxicity, or injury to the immune system. Among the approximately fifteen thousand (15,000) chemicals tested, few have been studied enough to conclude that there are no risks from exposure. Even when testing is done, each chemical is tested individually rather than in synergistic combinations that reflect actual human exposure in the real world. According to Cornell University and the American Society of Civil Engineers, on any given day a load of sewage sludge can contain the following: polychlorinated biphenyls (PCBs); chlorinated pesticides such as DDT, aldrin, endrin, chlordane, and 2,4,-D; heavy metals from wood preservatives, pesticides, metal plating, and batteries; bacteria; viruses; fungi; chlorinated compounds; flame retardants (such as asbestos); petroleum products; industrial solvents; nitrogen; phosphorus; potassium; and dioxin. In the 1990s, Cornell University’s extension service recommended that farmers “limit the total cumulative load of metals in soil to no more than 1/10 the cumulative loading limits set under federal 503 regulations.”

The Board, on behalf of the Township residents, recognizes that one thousand eight hundred (1,800) new chemicals enter the stream of commerce annually – thus entering into the waste stream, and the bodies of people, and into the air, water, soil, and food -  with few of those chemicals tested for adverse impacts on human health or ecosystems. The Board, on behalf of the Township residents also recognizes that sufficient data and experience exist for a reasonable person to conclude that a significant percentage of both currently used and newly manufactured chemicals are harmful to humans, animals, and ecosystems.

In spite of these risks, Packer Township has been rendered powerless by the state and federal government to prohibit the land application of sewage sludge by persons that comply with all applicable state and federal laws and regulations.

One purpose of this Ordinance is to recognize that it is an inviolate, fundamental, and inalienable right of each person residing within the Township of Packer to be free from involuntary invasions of their bodies by corporate chemicals. Since government is the People’s means of protecting rights and enforcing laws that have that effect, and since it is the Township's responsibility to protect the health, safety, and welfare of the residents, it is inextricably the essence of that responsibility for the Township to protect residents against bodily chemical trespass. Therefore, the Board of Supervisors of Packer Township, on behalf of Township residents, declares that persons owning and managing corporations that manufacture, distribute, sell and deposit chemicals and chemical compounds found to be trespassing on the bodies of residents of the Township, or into the ecosystems within Packer Township, must be held liable for those trespasses. The Board of Supervisors, on behalf of the Township residents also declares that the failure and refusal of the United States government and the government of the Commonwealth of Pennsylvania to ensure that corporate chemicals do not trespass on the residents of Packer Township makes them jointly and severally liable for those trespasses.

In order to protect the health, safety, and welfare of the residents of Packer Township, the soil, groundwater, and surface water, the environment and its flora and fauna, and the practice of sustainable agriculture, the Township finds it necessary to ban corporations and other limited liability entities from engaging in the land application of sewage sludge. It is recognized that a small number of waste management corporations control the vast majority of sludge hauling and land application, and that corporate concentration enables those corporations to define waste management practices at the State level to the detriment of municipal communities. It is also recognized that limited liability shields prevent financial recovery (and accountability) for damages caused by business entities because limited liability insulates the persons managing the corporation from harms caused by their decisions. Finally, the Township recognizes that those corporations wielding government-conferred constitutional powers against the municipal government renders the Board of Supervisors unable to guarantee to its citizens self-government or the protection of their health, safety, and welfare.

In order to protect the health, safety, and welfare of the residents of Packer Township, the soil, groundwater, and surface water, the environment and its flora and fauna, and the practice of sustainable agriculture, it is necessary to test each load of sewage sludge to be applied by persons before it is land applied within the Township to determine if the level of pollutants, pathogens, or vector attractants exceed the levels allowed under applicable laws and regulations.

The Pennsylvania Department of Environmental Protection does not possess sufficient funding or personnel to ensure that persons land applying sewage sludge in Packer Township are doing so in compliance with state laws and regulations, so Packer Township must have the option of enforcing those laws and regulations itself.

Packer Township’s cost of testing sewage sludge prior to land application shall be borne by those persons land applying sewage sludge in the Township, because making those persons reaping financial benefits from the land application of sewage sludge pay for the testing is fair and just.

Section 4—Interpretation

Anyone interpreting, implementing, or applying this Ordinance shall give priority to the findings and purposes stated in Section 3 over such considerations as economy, efficiency, and scheduling factors.

Section 5—Definitions

The following terms shall have the meanings defined in this section wherever they are used in this Ordinance.

Beneficial Use: Use or reuse of residual waste or material derived from residual waste for commercial, industrial, or governmental purposes where the use or reuse does not harm or threaten public health, safety, welfare, or the environment, or the use or reuse of processed municipal waste for any purpose where the use or reuse does not harm or threaten public health, safety, welfare, or the environment. (See 25 Pa. Code Chapter 271, Subchapter A, § 271.1.)

Cause damage to natural communities and ecosystems: This term and equivalent terms shall include but not be limited to alteration, removal, destruction, eradication, or other actions inflicted upon natural communities and ecosystems, in whole or in part, that bring about the cessation of the ability of natural communities and ecosystems to exist and flourish independent of human intervention. The term and equivalent terms shall also include the deposition of toxic substances or potentially toxic substances, manufactured chemicals and toxins, genetically engineered life forms, and radioactive substances and their progeny, whether synthetic or of altered or engineered natural origin, within, upon, or adjacent to human and natural communities and ecosystems in Packer Township.

Corporation: Any corporation organized under the laws of any state of the United States or under the laws of any country. The term shall also include any limited partnership, limited liability partnership, business trust, or limited liability company organized under the laws of any state of the United States or under the laws of any country, and any other business entity that possesses State-conferred limited liability attributes for its owners, directors, officers, and/or managers. The term shall also include any business entity in which one or more owners or partners is a corporation or other entity in which owners, directors, officers and/or managers possess limited liability attributes.

Culpable Parties: Persons owning or managing corporations which manufacture, generate, sell, dispose of, or land apply toxic or potentially toxic substances detected within the body of any resident of Packer Township or within any natural community or ecosystem within the Township.

DEP: The Pennsylvania Department of Environmental Protection.

Deposition: The placement of a toxic chemical or potentially toxic chemical within the body of a person. The act of deposition shall be assumed if a toxic chemical or potentially toxic chemical is detected within the body of a person.

Ecosystem: The term shall include, but not be limited to, wetlands, streams, rivers, aquifers, and other water systems, as well as all naturally occurring habitats that sustain wildlife, flora and fauna, soil-dwelling or aquatic organisms.

Exist and flourish: The term shall include but not be limited to the ability of natural communities and ecosystems to sustain and continue to exercise natural tendencies to promote life, reproduction, non-synthetic interactions and interdependencies among proliferating and diverse organisms; the term shall also include the ability of natural communities and ecosystems to establish and sustain indefinitely the natural processes and evolutionary tendencies that promote well-being among flora, fauna, aquatic life, and the ecosystems upon which their mutual benefit depends.  
Genetically engineered life forms:  Organisms in which genetic material or inherited genetic material has been directly altered through recombinant DNA technology, genetic modification, genetic manipulation (GM) or gene splicing. The term shall not refer to traditional breeding where the organism's genes are manipulated indirectly.
Laboratory or Qualified Laboratory: A facility that tests sewage sludge samples for pollutants, pathogens, and vector attractants in compliance with DEP regulations, including, without limitation, those regulations (see 25 Pa. Code § 271.906) that dictate approved methodologies for conducting such tests.

Land Applicant or Sewage Sludge Applicant: Any person responsible for complying with all Federal, State, and local laws and regulations concerning the land application of sewage sludge.

Land Application or Land Apply: The spraying or spreading of sewage sludge onto the land surface for beneficial use; the injection of sewage sludge below the land surface for beneficial use; or the incorporation of sewage sludge into the soil for beneficial use so that the sewage sludge can either condition the soil or fertilize crops for vegetation grown in the soil. (See 25 Pa. Code Chapter 271, Subchapter J, § 271.907.) The term shall also include the spraying, spreading, injection, or incorporation of sewage sludge onto, into, or below the land surface for reclamation of previously mined lands.

Natural Communities: Wildlife, flora, fauna, soil-dwelling and aquatic organisms, as well as humans and human communities that have established sustainable interdependencies within a proliferating and diverse matrix of organisms, within a natural ecosystem.       

Ordinance: The Packer Township Local Control, Sewage Sludge and Chemical Trespass Ordinance.

Person: A natural person, or an association of natural persons that does not qualify as a corporation under this Ordinance.

Sewage Sludge or Sludge: Liquid or solid sludge and other residue from a municipal sewage collection and treatment system, and liquid or solid sludge and other residue from septic and holding tank pumpings from commercial, industrial, or residential establishments. The term includes material derived from sewage sludge. The term does not include ash generated during the firing of sewage sludge in a sewage sludge incinerator, grit and screenings generated during preliminary treatment of sewage sludge at a municipal sewage collection and treatment system, or grit, screenings, or inorganic objects from septic and holding tank pumpings. (See 25 Pa. Code Chapter 271, Subchapter A, § 271.1.)

Sewage Sludge Applicant: See Land Applicant

SOUR: Specific oxygen uptake rate, which is the mass of oxygen consumed per unit time per unit mass of total solids (dry weight basis) in the sewage sludge.

Substantially Owned or Controlled: A person, corporation, or other entity substantially owns or controls another person, corporation, or other entity if it has the ability to evade the intent of Section 12.6 of this Ordinance by using that person, corporation, or other entity to land apply sewage sludge in Packer Township.

Sustainable Interdependencies: Co-existence of human and non-human organisms and communities, where human health and survival can be maintained and where human activities do not cause damage to natural communities and ecosystems.

Township: Packer Township in Carbon County, Pennsylvania, its Board of Supervisors, or its representatives or agents.

Township resident: A natural person who maintains a primary residence within the Township of Packer.
Toxic substances and potentially toxic substances: The phrase shall include chemicals or chemical compounds, sludges and waste, radioactive ores, mine tailings, millings, waste liquors and radioactive progeny, particulate matter and gasses, that have been found to cause adverse effects to animals, humans, or ecosystems, including those chemicals, chemical compounds, sources of radiation, and all other substances deemed to be mutagenic, neurotoxic, carcinogenic, teratogenic, reproductive or developmental toxicants, or any other toxic chemical or hazardous substance identified by the Township Supervisors of the Township of Packer by resolution as subject to this Ordinance. The phrase shall specifically include, but shall not be limited to, chlorinated solvents, polychlorinated biphenyls, organophosphate pesticides, organochlorine pesticides, carbamate insecticides, polybrominated diphenyl ethers (PBDEs), polychlorinated dioxins and dibenzofurans, pyrethroid pesticides, polynuclear aromatic hydrocarbons, cyanide, arsenic, cadmium, chromium, lead, mercury, asbestos, petroleum products, and industrial solvents.
Trespass: as used within this Ordinance, the deposition of toxic or potentially toxic chemicals or a genetically modified organism within a human body, natural community or ecosystem.

Truckload: A load containing a maximum of approximately 23 (twenty-three) tons of sewage sludge, based upon Packer Township’s understanding that sewage sludge for land application typically is delivered in tri-axle trucks that can hold approximately that amount of sewage sludge.

Section 6—Adoption of State Regulations

Packer Township hereby adopts as local law the Pennsylvania regulations concerning the land application of sewage sludge, including without limitation those codified at 25 Pa. Code §§ 271 and 275, et seq., as amended, to the extent that those regulations permit persons, but not corporations, to engage in land application of sewage sludge under those regulations.
Section 7— Statements of Law:  Specific Rights of Packer Township Residents and Communities
Section 7.1: Right to Water. All residents, natural communities and ecosystems in Packer Township possess a fundamental and inalienable right to sustainably access, use, consume, and preserve water drawn from natural water cycles that provide water necessary to sustain life within the Township.

Section 7.2: Rights of Natural Communities. Natural communities and ecosystems, including, but not limited to, wetlands, streams, rivers, aquifers, and other water systems, possess inalienable and fundamental rights to exist and flourish within the Township of Packer.

Section 7.3: Right to Self-Government. All residents of Packer Township possess the fundamental and inalienable right to a form of governance where they live which recognizes that all power is inherent in the people, that all free governments are founded on the people’s authority and consent, and that corporate entities and their directors and managers shall not enjoy special privileges or powers under the law which make community majorities subordinate to them, nor shall any class of people enjoy such privileges or powers.

Section 7.4: Right to a Healthy Environment. All residents of Packer Township possess a fundamental and inalienable right to a healthy environment, which includes the right to unpolluted air, water, soils, flora, and fauna, and to protect the rights of natural communities and ecosystems, of which each resident is both intrinsically a part and extrinsically dependent.

Section 7.5: Right to Self. All residents of Packer Township possess a fundamental and inalienable right to the integrity of their bodies, and to be free from unwanted invasions of their bodies by manufactured chemicals and toxins, including but not limited to toxic chemicals and potentially toxic chemicals as well as genetically engineered life forms, bacterial and viral pathogens, radioactive substances and their progeny, as well as a right to privacy of their bodies against involuntary surveillance, searches and inspections, or denial of medical treatment.

Section 7.6: Right to Livelihood and Home. All residents of Packer Township possess a fundamental and inalienable right to their livelihood, homes and land, and a right to enjoy those homes and land uncompromised by the land application of sewage sludge.

Section 7.7: Right to Cultural Heritage All residents of Packer Township possess a fundamental and inalienable right to their communities’ cultural heritage within the Township. Residents’ right to their own histories shall include a right to the preservation of historic buildings, unaltered rural historic districts and landscapes, and other structures, relationships, and lands that residents of Packer Township consider important to the preservation of their cultural heritage.

Section 7.8: People as Sovereign. The Township of Packer shall be the governing authority responsible to, and governed by, the residents of the County. Use of the “Packer Township” municipal corporation by the sovereign people of the Township to make law shall not be construed to limit or surrender the sovereign authority or immunities of the people to a municipal corporation that is subordinate to them in all respects at all times. The people at all times enjoy and retain an inalienable and indefeasible right to self-governance in the community where they reside.
Section 7.9: Nullification of Official Rights Denial. The authority of the Pennsylvania Attorney General within Packer Township to enforce any State law that removes authority from the people of Packer Township to decide the future of their community, and to protect the health, safety, welfare, and quality of life of Township residents, natural communities, and ecosystems, is not recognized within the Township of Packer.
Section 8—Statements of Law: Prohibitions, Culpability, Corporate Powers and Township Duties

Section 8.1: It shall be unlawful for any person, corporation, or other entity to violate in Packer Township the Pennsylvania regulations concerning the land application of sewage sludge, including without limitation those codified at 25 Pa. Code §§ 271 and 275, et seq., as amended.

Section 8.2: It shall be unlawful for any person to haul or land apply sewage sludge in Packer Township without first complying with the requirements in section 8 of this Ordinance.

Section 8.3: It shall be unlawful for any corporation to engage in the hauling or land application of sewage sludge within the Township of Packer. It shall be unlawful for any person to assist a corporation to engage in the hauling or land application of sewage sludge within Packer Township.

Section 8.4: It shall be unlawful for any director, officer, owner, or manager of a corporation to use a corporation to engage in the land application of sludge within Packer Township.

Section 8.5: The deposition of toxic chemicals or potentially toxic chemicals within the body of any resident of Packer Township, or into any natural community or ecosystem is declared a form of trespass, and is hereby prohibited. No corporation or syndicate shall engage in the production, distribution, use, and/or sale of toxic chemicals and potentially toxic chemicals within the Township of Packer.

Section 8.6: Persons owning or managing corporations which manufacture, generate, sell or dispose of toxic or potentially toxic chemicals detected within the body of any resident of Packer Township or within any natural community or ecosystem within the Township shall be deemed culpable parties, along with the corporation itself, for the recovery of trespass damages, compensatory damages, punitive damages, and the instatement of permanent injunctive relief. If more than one corporation manufactured or generated the detected chemical or chemical compound, persons owning and managing those corporations, along with the corporations themselves, shall be held jointly and severally liable for those damages, in addition to being subject to injunctive relief.

Section 8.7: Corporations manufacturing or generating toxic or potentially toxic chemicals detected within the body of a Township resident shall provide information about the manufacture or generation of those chemicals to the municipality sufficient for a determination by the municipality of the culpability of that particular corporation for the manufacturing or generation of a particular toxic or potentially toxic chemical.

Section 8.8: The Township of Packer shall be the governing authority responsible to and governed by the residents of the Township. Use of the "Township of Packer" municipal corporation by the sovereign people within the Township's boundaries to make law shall not be construed to limit or surrender the sovereign authority or immunities of the people to a municipal corporation that is subordinate to them in all respects at all times. The people at all times enjoy and retain an inalienable and indefeasible right to self-governance in the community where they reside.

Section 8.9: It shall be the duty of the Township to protect the right of Township residents, natural communities and ecosystems to be free from chemical trespass under the provisions of this Ordinance, and to obtain damages for any violation of that right. If the presence of toxic and/or potentially toxic chemicals is detected within the body of any Township resident, or within a natural community or ecosystem within the Township, the municipality shall initiate litigation to recover trespass, compensatory, and punitive damages – and permanent injunctive relief - from all culpable parties. If a significant number of Township residents have been similarly trespassed against, the municipality shall select representative plaintiffs and file a class action lawsuit on behalf of all Township residents to recover trespass, compensatory, and punitive damages – and permanent injunctive relief - from all culpable parties.

Section 8.10: Persons land applying sewage sludge within the Township shall be strictly liable for the deposition of toxic chemicals and potentially toxic chemical components of the sludge into the bodies of residents of the Township and within natural communities and ecosystems within the Township. Culpable parties shall be deemed strictly liable if one of their toxic or potentially toxic chemical or chemical compounds is discovered within the body of a Township resident or into any natural community or ecosystem within the Township. The municipality’s showing of the existence of that chemical or chemical compound within the body of a resident living in the Township or within a natural community or ecosystems within the Township, and the municipality’s showing that the Defendant(s) are responsible for the manufacture, generation, sale, or deposition of that chemical within the Township, shall constitute a prime facie showing of causation under a strict liability standard. Current and future damages resulting from the culpable parties’ trespass shall be assumed, and the burden of proof shall shift to the culpable parties for a showing that the chemical or chemical compound could not cause harm or contribute to causing harm, either alone or in combination with other factors, or that the culpable parties are not responsible for the trespass of that particular chemical into the body of residents of the Township or within a natural community or ecosystems within the Township.

Section 8.11: Packer Township shall select a laboratory with expertise in the testing for toxic chemicals and potentially toxic chemicals and chemical compounds, including, but not limited to, those chemical compounds listed in Section 5 of this Ordinance. The Township shall provide financial resources for the first ten residents who request to be tested for the presence of toxic chemicals and potentially toxic chemicals and chemical compounds within their bodies, and make all reasonable efforts to provide financial resources for the testing of additional residents.
Section 8.12: Within the Township of Packer, corporations shall not be “persons” under the United States or Pennsylvania Constitutions, or under the laws of the United States, Pennsylvania, or the Township of Packer, and so shall not have the rights of persons under those constitutions and laws. Nor shall they be afforded the protections of the Contracts Clause or Commerce Clause of the United States Constitution, or similar provisions from the Pennsylvania Constitution, within the Township of Packer, nor shall those corporations possess the authority to enforce State or federal preemptive law against the people of the Township of Packer. Within the Township of Packer, corporations shall be prohibited from denying the rights of residents and natural communities and shall be liable for any such deprivation or denial of rights. Additionally, within the Township of Packer, corporate claims to “future lost profits” as a result of the enactment, implementation or enforcement of this Ordinance shall not be considered property interests under the law, and thus, shall not be recoverable by corporations seeking those damages as a result of the enforcement of this Ordinance within the Township.
Section 8.13: It shall be unlawful for any corporation or its directors, officers, owners, or managers to interfere with the existence and flourishing of natural communities or ecosystems, or to cause damage to those natural communities and ecosystems. Such interference shall include but not be limited to the deposition of toxic chemicals and potentially toxic chemicals into natural communities and ecosystems in the Township. The Township of Packer, along with any resident of the Township, shall have standing to seek declaratory, injunctive, and compensatory relief for damages caused to natural communities and ecosystems within the Township, regardless of the relation of those natural communities and ecosystems to Township residents or the Township itself. Township residents, natural communities, and ecosystems shall be considered to be “persons” for purposes of the enforcement of the civil rights of those residents, natural communities, and ecosystems.

Section 8.14: No permit, license, privilege or charter issued by any State or federal Regulatory Agency, Commission or Board to any person or any corporation operating under a State charter, or any director, officer, owner, or manager of a corporation operating under a State charter, which would violate the provisions of this Ordinance or deprive any Township resident(s), natural community, or ecosystem of any rights, privileges, or immunities secured by this Ordinance, the Pennsylvania Constitution, the United States Constitution, or other laws, shall be deemed valid within the Township of Packer. Additionally, any employee, agent or representative of any State or federal Regulatory Agency, Commission or Board who issues a permit, license, privilege or charter to any person or any corporation operating under a State charter, or any director, officer, owner, or manager of a corporation operating under a State charter, which would violate the provisions of this Ordinance or deprive any Township resident(s), natural community, or ecosystem of any rights, privileges, or immunities secured by this Ordinance, the Pennsylvania Constitution, the United States Constitution, or other laws, shall be liable to the party injured and shall be responsible for payment of compensatory and punitive damages and all costs of litigation, including, without limitation, expert and attorney’s fees. Compensatory and punitive damages paid to remedy the violation of the rights of natural communities and ecosystems shall be paid to the Township of Packer for restoration of those natural communities and ecosystems.



Section 9—Application and Testing Requirements

Before each and every truckload of sewage sludge is land applied in Packer Township by a person, the sewage sludge applicant must do the following:

Section 9.1: Complete and submit to the Township a written application in form and number provided by the Township and containing the name and address of the sewage sludge applicant, the name and address of the landowner on whose land the sewage sludge is to be land applied, the location of the land on which the sewage sludge is to be land applied, and a copy of all DEP and other applicable state and federal permits pertaining to the land application.

Section 9.2: Provide Packer Township with written proof of the Class of sewage sludge to be land applied. If the sludge is Class A, provide Packer Township with written proof of the Alternative in 25 Pa. Code § 271.932(a) under which the sludge qualifies as Class A. If the sludge is Class B, provide Packer Township with written proof of the Alternative in 25 Pa. Code § 271.932(b) under which the sludge qualifies as Class B. For all Classes of sludge, provide Packer Township with written proof of the Alternative in 25 Pa. Code § 933(b) under which the sludge purportedly satisfies DEP vector attraction requirements. The purpose of this subsection is to confirm the Class of sludge to be applied and to identify the testing that Packer Township must conduct on the sewage sludge and the requisite testing and collection fees under Section 9.4 of this Ordinance.

Section 9.3: Arrange for and allow Packer Township to collect the necessary sewage sludge samples from the truckload to be land applied to have a qualified laboratory test the sludge for pollutants, pathogens, and vector attractants regulated by DEP at 25 Pa. Code § 271.914 (pollutants), § 271.932 (pathogens), § 271.933 (vector attractants), and at all other applicable state and federal regulations, as amended.

Section 9.4: Pay Packer Township the testing and collection fees identified below and, when indicated, provide Packer Township with the written proof requested below.

Pollutants:     For all classes of sewage sludge, the testing fee for pollutants under 25 Pa. Code § 271.914(a)(1) will be determined based upon quotes from one or more qualified laboratories at the time of testing.

Pathogens:    For Class B sludge under Alternative 1 of 25 Pa. Code § 271.932(b), the testing fee to test seven samples for fecal coliform will be determined based upon quotes from one or more qualified laboratories at the time of testing.

    For Class B sludge under Alternatives 2 and 3 of 25 Pa. Code § 271.932(b), the sewage sludge applicant shall submit written proof that the sludge to be land applied has been treated as required under the applicable Alternative.

Vector Attractants:    For sewage sludge that purportedly satisfies vector attraction requirements under 25 Pa. Code § 271.933(b)(1), (2), or (3), the testing fee for mass of volatile solids will be determined based upon quotes from one or more qualified laboratories at the time of testing.

    For sewage sludge that purportedly satisfies vector attraction requirements under 25 Pa. Code § 271.933(b)(4), the testing fee for SOUR will be determined based upon quotes from one or more qualified laboratories at the time of testing.

    For sewage sludge that purportedly satisfies vector attraction requirements under 25 Pa. Code § 271.933(b)(5), (6), (7), (8), (9), or (10), the sewage sludge applicant shall submit written proof that the sludge to be land applied satisfies the requirements under the applicable Alternative.

Collection:     For all classes of sewage sludge, the administrative fee for collection and transportation of the sewage sludge samples for testing, and for handling the application, is $50.00 per truckload of sewage sludge to be land applied.

Section 9.5: Store the sewage sludge pursuant to all applicable DEP, federal, and state regulations (including without limitation those at 25 Pa. Code §275.204 and 25 Pa. Code Chapter 285) until the Township notifies the sewage sludge applicant whether it may land apply the sewage sludge in Packer Township. The sewage sludge applicant shall notify Packer Township of the location of the stored sludge and the identity of the container storing the sludge, in a manner sufficient to enable the Township to verify that the stored sludge is the same sludge being considered for land application.

Section 9.6: If the land applicant does not receive permission to land apply the sewage sludge in Packer Township it shall follow all applicable state and federal regulations for handling and disposing of sewage sludge that may not be land applied.

Section 9.7: If the land applicant receives notice that it is allowed to land apply the sewage sludge in Packer Township, it shall do so in compliance with all applicable federal, state, and local laws and regulations.

Section 10—Testing Procedures

When Packer Township receives all of the following—a complete application pursuant to section 9.1 of this Ordinance; all information required under Section 9.2 of this Ordinance; and all testing and collection fees and written proofs required under Section 9.4 of this Ordinance—it shall do the following:

Section 10.1: Collect the necessary sewage sludge samples for testing by a qualified laboratory for compliance with DEP’s pollutant regulations at 25 Pa. Code § 271.914, pathogen regulations for Class B sludge at § 271.932, vector attractant regulations at § 271.933, and all other applicable state and federal regulations, as amended. The Township shall instruct the laboratory to conduct the tests in compliance with all DEP regulations for testing sewage sludge to be land applied under the beneficial use program.

Section 10.2: Inform the sewage sludge applicant of the results of testing conducted pursuant to Section 9.3 within seventy-two (72) hours after receiving the results.

Section 10.3: If the testing reveals that the sewage sludge contains levels of pollutants, pathogens, or vector attractants that violate DEP regulations at 25 Pa. Code § 271.914 (pollutants), § 271.932 (pathogens), § 271.933 (vector attractants), or any other federal or state laws or regulations, as amended, the Township shall deny permission for the sewage sludge to be land applied in Packer Township. Otherwise, the Township shall grant permission for the land application.

Section 11—Administration

This Ordinance shall be administered by Packer Township. The Township may, but is not required to, administer and enforce, at Township expense (except as provided in Section 9.4 of this Ordinance), any and all regulations that it has adopted pursuant to Section 9 of this Ordinance.





Section 12—Enforcement

Section 12.1: Packer Township shall enforce this Ordinance by an action brought before a district justice in the same manner provided for the enforcement of summary offenses under the Pennsylvania Rules of Criminal Procedure. (See 53 P.S. § 66601(c.1)(2).)

Section 12.2: Any person, corporation, or other entity that violates any provision of this Ordinance shall be guilty of a summary offense and, upon conviction thereof by a district justice, shall be sentenced to pay a fine of $750 for first-time violations, $1000 for second-time violations, and $1000 for each subsequent violation, and shall be imprisoned to the extent allowed by law for the punishment of summary offenses. (See 53 P.S. § 66601(c.1)(2).)

Section 12.3: A separate offense shall arise for each day or portion thereof in which a violation occurs and for each section of this Ordinance that is found to be violated. (See 53 P.S. § 66601(c.1)(5).)

Section 12.4: Packer Township may also enforce this Ordinance through an action in equity brought in the Court of Common Pleas of Carbon County. (See 53 P.S. § 66601 (c.1)(4).) In such an action, Packer Township shall be entitled to recover all costs of litigation, including, without limitation, expert and attorney’s fees.

Section 12.5: All monies collected for violation of this Ordinance shall be paid to the Treasurer of Packer Township.

Section 12.6: Any person, corporation, or other entity that violates, or is convicted of violating this Ordinance, two or more times shall be permanently prohibited from land applying sewage sludge in Packer Township. This prohibition applies to that person’s, corporation’s, or other entity’s parent, sister, and successor companies, subsidiaries, and alter egos, and to any person, corporation, or other entity substantially owned or controlled by the person, corporation, or other entity (including its officers, directors, or owners) that twice violates this Ordinance, and to any person, corporation, or other entity that substantially owns or controls the person, corporation, or other entity that twice violates this Ordinance.

Section 12.7: Any Township resident shall have the authority to enforce this Ordinance through an action in equity brought in the Court of Common Pleas of Carbon County. In such an action, the resident shall be entitled to recover all costs of litigation, including, without limitation, expert and attorney’s fees.

Section 13—Civil Rights Enforcement

Section 13.1: Any person acting under the authority of a permit issued by the Department of Environmental Protection, any corporation operating under a State charter, or any director, officer, owner, or manager of a corporation operating under a State charter, who deprives any Township resident, natural community, or ecosystem of any rights, privileges, or immunities secured by this Ordinance, the Pennsylvania Constitution, the United States Constitution, or other laws, shall be liable to the party injured and shall be responsible for payment of compensatory and punitive damages and all costs of litigation, including, without limitation, expert and attorney’s fees. Compensatory and punitive damages paid to remedy the violation of the rights of natural communities and ecosystems shall be paid to Packer Township for restoration of those natural communities and ecosystems.

Section 13.2: Any Township resident shall have standing and authority to bring an action under this Ordinance’s civil rights provisions, or under state and federal civil rights laws, for violations of the rights of natural communities, ecosystems, and Township residents, as recognized by this Ordinance. 

Section 14—Effective Date and Existing DEP Permitholders

This Ordinance shall be effective five (5) days after the date of its enactment, at which point the Ordinance shall apply to any and all land applications of sewage sludge in Packer Township regardless of the date of the applicable DEP permits.

Section 15—People’s Right to Self-Government
The foundation for the making and adoption of this law is the people’s fundamental and inalienable right to govern themselves, and thereby secure their rights to life, liberty, and pursuit of happiness. Any attempts to use other units and levels of government to preempt, amend, alter, or overturn this Ordinance, or parts of this Ordinance, shall require the Township Board of Supervisors to hold public meetings that explore the adoption of other measures that expand local control and the ability of residents to protect their fundamental and inalienable right to self-government. Such consideration may include actions to separate the municipality from the other levels of government used to preempt, amend, alter, or overturn the provisions of this Ordinance or other levels of government used to intimidate the people of Packer Township or their elected officials.
Section 16—Severability

The provisions of this Ordinance are severable. If any court of competent jurisdiction decides that any section, clause, sentence, part, or provision of this Ordinance is illegal, invalid, or unconstitutional, such decision shall not affect, impair, or invalidate any of the remaining sections, clauses, sentences, parts, or provisions of the Ordinance. The Board of Supervisors of Packer Township hereby declares that in the event of such a decision, and the determination that the court’s ruling is legitimate, it would have enacted this Ordinance even without the section, clause, sentence, part, or provision that the court decides is illegal, invalid, or unconstitutional.

Section 17—Repealer

All inconsistent provisions of prior Ordinances adopted by Packer Township are hereby repealed, but only to the extent necessary to remedy the inconsistency.

ENACTED AND ORDAINED this ___ day of __________, 2008, by the Board of Supervisors of Packer Township.


By:    ____________________________




    ____________________________




    ____________________________




Attest:    ____________________________