General
This page explores violations of the law (see Options page) that could apply in a wood smoke air pollution complaint (see Complaints tab). A complaint filed with municipal or County officials should cite the violation under a specific section of the local or County ordinance and the activity that prompted the complaint. A complaint filed in court to initiate a lawsuit will cite “counts” and associated allegations in accordance with applicable law. A count represents “each separate statement in a complaint which states a cause of action which, standing alone, would give rise to a lawsuit” (https://dictionary.law.com/Default.aspx?selected=373#:~:text=count,charge%20in%20a%20criminal%20action).
As applicable (to Federal, State, County or local law), if you can respond to any one activity/allegation under any one of the following counts (the count numbers are strictly arbitrary) in the affirmative that count or the activity/allegation it represents could be part of a wood smoke complaint. Municipal or County complaints may be less “formal” than complaints filed in court e.g., they may simply list the code violation(s) and related allegations.
Counts under Federal Law – Clean Air Act (CAA)
Notes:
The CAA charges the EPA to set National Ambient Air Quality Standards (NAAQS) of two types primary and secondary, for pollutants that are detrimental to public health and the environment respectfully. Accordingly, the EPA has identified NAAQS for six key pollutants or “criteria” air pollutants: Carbon Monoxide, Lead, Nitrogen Oxides, Particulate Matter (PM10 and PM2.5), Ozone and Sulfur Dioxide.
The CAA stipulates that private citizens may bring civil actions against alleged violators of the CAA NAAQS emission standards or limitations. One may show this by sensor readings of PM2.5 entering onto your property in comparison to ambient levels and the AQI PM2.5 .
https://www.epa.gov/laws-regulations/summary-clean-air-act
https://www.epa.gov/clean-air-act-overview/clean-air-act-text
Count I: Violation of the Clean Air Act (CAA)
Has another party’s wood burning violated the CAA NAAQS emission standards or limitations for Particulate Matter (PM2.5) that is entering onto your property and causing harm to your property and health?
Counts under State Law – Air Pollution Control Act (APCA)
Notes:
The APCA provides “for the better protection of the health, general welfare and property of the people of the Commonwealth by the control, abatement, reduction and prevention of the pollution of the air by smokes, dusts, fumes, gases, odors, mists, vapors, pollens and similar matter, or any combination thereof.”
https://www.dep.pa.gov/Business/Air/BAQ/Regulations/Documents/apca.pdf
See Options page as to the APCA definition of “air pollution”.
See Options page as to the APCA definition of “air contaminant”.
Count II: Violation of the Air Pollution Control Act (APCA)
Has another party used a wood-burning device or containment indoors or outdoors which is an “air contamination source” in violation of the APCA? 35 P.S. § 4003
Has another party, through use of wood-burning device or containment indoors or outdoors permitted “air pollution” that has harmed you in violation of the APCA? 35 P.S. § 4008
Has another party, through operation of its wood-burning device or containment indoors or outdoors, produced malodorous emissions detectable to you outside of its property and harmful to your well-being in violation of the APCA? 25 Pa. Code §123.31
Has another party permitted “air pollution” and thereby engaged in unlawful conduct in violation of the APCA? 35 P.S. § 4008
Counts under County Law – County of Allegheny, Pennsylvania, Ordinance No. 16782, and the Allegheny County Health Department Rules and Regulations, Article XXI Air Pollution Control (Article XXI)
Notes:
Article XXI and various sections therein address air pollution issues that bear on wood smoke.
Count III: Violation of County of Allegheny, Pennsylvania, Ordinance No. 16782, Article XXI Air Pollution Control, Section §2104.01 Visible Emissions
Has another party operated, or allowed to be operated, any wood burning source in such manner that the opacity of visible emissions from such source: 1. Equals or exceeds an opacity of 20% for a period or periods aggregating more than three (3) minutes in any 60 minute period; or, 2. Equals or exceeds an opacity of 60% at any time as per observations of visible emissions by a certified Smoke Reader as specified in Chapter 9 of the Allegheny County Source Testing Manual, entitled “Visible Determination of the Opacity of Emissions from Stationary Sources”?
Count IV: Violation of County of Allegheny, Pennsylvania, Ordinance No. 16782, Article XXI Air Pollution Control, Section §2104.04 Odor Emissions
Has another party operated, or allowed to be operated, any wood burning source in such manner that emissions of malodorous matter from such source are perceptible beyond the property line of such source as per the observations of odor emissions beyond source boundary lines performed as specified in Chapter 48 of the Allegheny County Source Testing Manual, entitled “Measurement of Odor Emissions Beyond Source Boundary lines?
Count V: Violation of County of Allegheny, Pennsylvania, Ordinance No. 16782, Article XXI Air Pollution Control, Section §2105.50 Open Burning
Has another party conducted, or allowed to be conducted, the open burning of any material, other than for the purpose of preparation of food for human consumption, recreation, light, or ornament, in a manner which contributes more than a negligible amount of air contaminants?
Has another party burned material other than seasoned wood, propane, or natural gas (save for charcoal in an outdoor fireplace or grill for the purpose of cooking or commercially available fire logs, paraffin logs, or wood pellets in outdoor fireplaces)?
Has another party used other than paper or commercial smokeless fire starters with seasoned wood to start a permissible fire?
Has another party burned any volume of seasoned wood larger than 3’ wide x 3’ long x 2’ high and less than 15 feet from the nearest neighbor’s dwelling or inhabited area, any property line, roadway, sidewalk, or public access way?
Has another party tended any open burning by other than a responsible person at all times?
Has another party conducted wood burning activities on Air Quality Action Days?
Has another party perpetuated a nuisance as to the severity of the amount of air pollutants, or malodorous material; the duration or frequency of open burning; the topography of the surroundings; and/or the meteorological conditions?
Counts under Municipal Law – [Municipal] Code, Section/Chapter [No.] – [Activity/Allegation]
Notes:
In Allegheny County there are 130 independent municipalities (https://apps.alleghenycounty.us/website/munimap.asp) each with its own governing ordinance or code that may or may not address the wood smoke issue directly or indirectly. Certain codes have adopted provisions to specifically regulate wood burning. These laws may be consistent with the County ordinance or not. Certain codes directly address uses that emit odor, dust, smoke, gas, vibration or noise or indirectly address the effects of such uses as to nuisance, trespass or negligence.
One may find municipal codes at: https://law-duq.libguides.com/municipal-codes. These codes may or may not be current; check with the municipality to see if there are updates.
Most if not all of the codes/ordinances are available on the municipality’s website. You may also search on “ecode360.com [Municipality]” in your browser to find a link to the desired municipal code.
Count VI: Violation of [Municipal] Code, Section/Chapter [No.] Odor
Has another party permitted malodorous gas or matter which is discernible on your or any adjoining lot or property?
Count VII: Violation of [Municipal] Code, Section/Chapter [No.] Smoke
Has another party permitted smoke of a shade darker than No. 2 as determined by a Certified Smoke Reader using the Standard Ringelmann Chart issued by the United States Bureau of Mines.?
Count VIII: Violation of [Municipal] Code, Section/Chapter [No.] Air Pollution
Has another party permitted pollution of air by fly ash, dust, vapors or other substance which is harmful to health, animals, vegetation or other property or which can cause soiling of property?
Has another party’s wood burning been noxious or offensive by reason of the emission of odor, dust smoke, gas, vibration or noise?
Has another party’s wood burning permitted or caused smoke, soot, noxious or offensive fumes, gases or odors to be discharged into the air, or to be carried off the premises,… as to cause annoyance to you or other residents or interference with the normal use of your or adjacent properties?
Count IX: Violation of [Municipal] Code, Section/Chapter [No.] Open Burning
Has another party failed to obtain a permit from the designated municipal agents before burning as designated in the ordinance?
Has another party been burning a fire longer than [three] hours in duration after expiration of permit period in any twenty-four-hour period?
Has another party failed to extinguish its fire after the expiration of the permit period of three hours?
Has another party been burning other than dry, clean wood products or other clean-burning fuels?
Has another party been using other than smokeless fuels, if any, to start the fire?
Has another party been burning building materials of any kind, garbage or other refuse-type material?
Has another party been burning an oversized fire, which including the flames, and/or the materials being burned is larger than [two] square feet and not enclosed in a barrier made of connected stone, metal or other noncombustible materials?
Has another party been burning a fire less than [15][10] feet from the nearest structure, inhabited area, roadway or property line or boundary?
Has another party been burning beneath a structure of any kind?
Has another party been burning a fire longer than is reasonable in any twenty-four-hour period?
Has another party been burning a fire that emits smoke in such a manner as to constitute an offensive condition or nuisance to you or municipal residents?
Has another party been burning on days of excessive wind?
Has another party been burning on ” Air Quality Action Days” as per public notification of same from the Allegheny County Health Department?
Has another party left its fire unattended during the time it is burning?
Has another party failed to extinguish its fire when it is left unattended?
Has another party had an individual under 16 years of age attend its fire?
Has another party engaged in open burning when there is not at a minimum either an ABC 5 Pound Type Fire Extinguisher, its equivalent or better, or garden hose, fully pressurized, within four feet of the fire?
Count X: Violation of [Municipal] Code, Section/Chapter [No.] Nuisance
Has another party been carrying on, conducting or allowing any condition to exist on its property on at least three separate occasions and on different dates within the Municipality, which constitutes a danger or hazard to the health, safety, tranquility, comfort or welfare of others, thereby constituting a nuisance, where, pursuant to the procedures of the municipal ordinance, the governing body of the municipality may declare said conduct or said condition to be a public nuisance?
Counts under Common Law Options – Nuisance
Notes:
One can contest environmental pollution such as odors, dust, smoke, other airborne pollutants, water pollutants and hazardous substances using the common “count” – private nuisance to stop another party from interfering with your property, your comfort in it and your use and enjoyment of it. This may be the case when a person uses his property to cause material injury or annoyance to a reasonable neighbor, that is when another party’s activity unreasonably interfered with your use or enjoyment of a protected interest and caused you harm. A nuisance “arises from the unreasonable, unwarrantable or unlawful use by a person of his own property, working an obstruction or injury to the right of another or to the public, and producing such material annoyance, inconvenience, and discomfort that the law will presume resulting damage” https://projects.ncsu.edu/cals/course/are309b/Common_Law_Environmental_Remedies.pdf.
Count XI: Nuisance
Has another party, by its acts or omissions, and its lack of compliance with the Air Pollution Control Act, caused an unreasonable and substantial interference with your right to use and enjoy your property?
Has another party known, or substantially ascertained, that its wood burning indoors or outdoors caused and would cause smoke, odor and emissions to enter onto your property, especially after that party became aware that the wood smoke has been entering your property from its previous use of its wood burning devices?
Counts under Common Law Options- Trespass
Notes:
One can contest environmental pollution using trespass as to interference with possession of property i.e., an invasion of property interest by affecting the emission of particulate matter, smoke or malodorous matter across the boundary of the (source) premises onto another’s land. This may be in evidence when a party affects “an invasion of your interest in the exclusive possession of your land”
https://projects.ncsu.edu/cals/course/are309b/Common_Law_Environmental_Remedies.pdf.
Count XII: Trespass
Has another party unlawfully trespassed upon your property when it, without consent or any other privilege, intentionally operated its indoor or outdoor wood burning in a manner that caused emissions from the wood burning to enter onto your property and caused you harm?
Counts under Common Law Options- Negligence
Notes:
One can contest environmental pollution using negligence as to damages for personal injury or other damaging results. “Negligence” in environmental cases can be what “a reasonable and prudent man would not do… under all the circumstances”
https://projects.ncsu.edu/cals/course/are309b/Common_Law_Environmental_Remedies.pdf given a foreseeable result.
For example, a painting contractor could be guilty of negligence if it paints a bridge and allows spray paint residue to fall on the cars below despite the fact that it was well aware of the hazards of spray painting and the disposition of spray should it not contain the spray properly.
Count XIII: Negligence
Has another party breached its duty of care to act responsibly and prudently in conducting its wood burning, in a manner that prevented the emissions occurring as a result of the use of its wood burning devices from entering onto your property and causing harm to your property and health?
Has another party, known, or should it have known in exercising reasonable care, that its operation of its wood burning devices would actually harm, or would cause risk of harm, to you?
Has another party breached its duty of care to you by operating its wood burning devices in an irresponsible and imprudent manner which caused the wood burning devices’ emissions to enter onto your property and caused harm to your property and health?
Has another party breached its duty of care to responsibly and prudently remediate any harms to the you occurring as a result of its operation of its wood burning devices?
Did another party know, or should it have known in exercising reasonable care, that its operation of its wood burning devices would actually harm, or would cause risk of harm to you?
Has another party breached its duty of care to you in allowing emissions from its wood burning devices to enter onto your property and cause the harms described herein.
Has another party breached its duty of care to the you in failing to remediate the harms caused to you as a result of its operation of its wood burning devices?
Has another party breached its duty of care to comply with the Air Pollution Control Act (APCA)?
Were another party’s acts or omissions the direct and proximate cause of harm to you?