PRINTER'S NO. 4239
No. 2735 Session of 2008
INTRODUCED BY HALUSKA, HANNA, BRENNAN, CREIGHTON, DENLINGER, FAIRCHILD, GEORGE, GODSHALL, GOODMAN, HESS, KOTIK, KULA, LEVDANSKY, MAHONEY, PASHINSKI, SAYLOR, SIPTROTH, SOLOBAY, STABACK, SURRA, THOMAS, WATSON, WOJNAROSKI AND YOUNGBLOOD, AUGUST 5, 2008
REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY, AUGUST 5, 2008
AN ACT 1 Regulating prescribed burning practices; providing for the 2 powers and duties of the State Forester and the Department of 3 Conservation and Natural Resources; and establishing certain 4 immunities. 5 The General Assembly of the Commonwealth of Pennsylvania 6 hereby enacts as follows: 7 Section 1. Short title. 8 This act shall be known and may be cited as the Prescribed 9 Burning Practices Act. 10 Section 2. Legislative declaration and findings. 11 The General Assembly declares that prescribed burning is a 12 land management tool that benefits the safety of the public, the 13 environment and the economy of this Commonwealth. Therefore, the 14 General Assembly finds that: 15 (1) Prescribed burning reduces naturally occurring 16 vegetative fuels. Reducing the fuel load reduces the risk and 17 severity of wildfires, thereby reducing the threat of loss of
1 life and property. 2 (2) Public agencies and nongovernmental organizations in 3 this Commonwealth have invested millions of dollars to 4 purchase land for parks, wildlife areas, State forests, 5 nature preserves and other outdoor recreational purposes. For 6 many of these public and private lands, the use of prescribed 7 burning is essential to maintain specific resource values for 8 which the areas were acquired. 9 (3) Forests, grasslands and other natural areas in this 10 Commonwealth constitute significant economic, biological and 11 aesthetic resources of Statewide importance. Prescribed 12 burning prepares sites for planting; removes undesirable 13 competing vegetation; accelerates nutrient cycling; controls 14 certain insect pests, pathogens and noxious weeds; and 15 promotes oak regeneration. In these communities, prescribed 16 burning improves and maintains the quality and quantity of 17 wildlife habitats. 18 (4) Many of this Commonwealth's natural communities 19 require periodic fire for maintenance of their ecological 20 health. Prescribed burning is essential to the perpetuation, 21 restoration and management of many plant and animal 22 communities. Significant loss of this Commonwealth's 23 biological diversity will occur if fire is excluded from 24 these fire-dependent and fire-adapted communities. 25 (5) Proper training in the purposes, use and application 26 of prescribed burning is necessary to ensure maximum benefits 27 and protection for the public. 28 (6) Prescribed burning in the hands of trained, skilled 29 and experienced people is safe and often represents one of 30 the most cost-effective management techniques to accomplish 20080H2735B4239 - 2 -
1 many ecosystem restoration objectives and ecological goals. 2 (7) As development and urbanization increase in many 3 areas of this Commonwealth, concerns about potential 4 liability and nuisance complaints may inhibit the use of 5 prescribed burning as a conservation and safety tool. 6 Section 3. Purpose. 7 The purpose of this act is to encourage the continued use of 8 prescribed burning for fuel reduction, ecological, forest, 9 wildlife and grassland management purposes. 10 Section 4. Definitions. 11 The following words and phrases when used in this act shall 12 have the meanings given to them in this section unless the 13 context clearly indicates otherwise: 14 "Department." The Department of Conservation and Natural 15 Resources of the Commonwealth. 16 "National Wildfire Coordinating Group." The organization 17 comprised of representatives from Federal and State government 18 agencies which has developed formal standards and programs 19 addressing wildland fire, including training, equipment and 20 operational requirements for the appropriate use of prescribed 21 fire. 22 "Prescribed burn" or "prescribed burning." The planned and 23 controlled application of fire to existing vegetative fuels: 24 (1) Under specified environmental conditions and 25 following appropriate precautionary measures, in order to 26 accomplish one or more specific land management objectives, 27 including, but not limited to, vegetative fuel reduction, 28 silvicultural treatments, wildlife habitat improvement and 29 management of grassland and other plant communities. 30 (2) Conducted in compliance with a written prescribed 20080H2735B4239 - 3 -
1 burn plan and under the supervision of a prescribed burn 2 manager. 3 "Prescribed burn manager." An individual who successfully 4 completes and maintains the level of training and experience 5 required by the State Forester to review and approve a 6 prescribed burn plan and supervise a prescribed burn. 7 "Prescribed burn plan." A written plan reviewed and approved 8 by a prescribed burn manager that includes measurable criteria 9 to: 10 (1) Define the conditions for starting, controlling and 11 extinguishing a prescribed burn for a specified area or 12 multiple units within an area. 13 (2) Guide the selection of appropriate management 14 responses. 15 (3) Indicate other required action. 16 The plan may include information relating to burn duration, 17 smoke management, fuel and weather prescriptions, notification 18 of adjacent landowners, safety contingencies and other relevant 19 factors. 20 Section 5. Regulatory standards. 21 Within six months from the effective date of this section, 22 the State Forester shall promulgate standards, which shall 23 include a 60-day public comment period, for the planning and 24 conduct of prescribed burning in this Commonwealth. In 25 developing the standards, the State Forester shall consult with 26 the Department of Environmental Protection, the Pennsylvania 27 Game Commission and other public agencies and private 28 organizations which have interest or experience in the practice 29 of prescribed burning. The standards shall include, but not be 30 limited to: 20080H2735B4239 - 4 -
1 (1) Minimum qualifications and training requirements for 2 prescribed burn managers and other persons participating in a 3 prescribed burn. 4 (2) Required content for prescribed burn plans. 5 To the greatest extent practicable, the standards shall be 6 consistent with comparable requirements established by the 7 National Wildfire Coordinating Group. 8 Section 6. Departmental regulations. 9 If deemed necessary and appropriate by the State Forester, 10 the department shall establish by regulation: 11 (1) A certification and revocation process for 12 prescribed burn managers. 13 (2) Requirements for the review and approval of 14 prescribed burn plans by the State. 15 (3) A training program for prescribed burn managers and 16 other persons participating in a prescribed burn. 17 In the event such requirements are established, the department 18 is authorized to charge and collect fees from persons 19 participating in training or certification programs. 20 Section 7. Prescribed burn plan. 21 (a) Duty of prescribed burn manager to submit.-- 22 (1) Prior to execution of a prescribed burn plan, the 23 prescribed burn manager shall notify the Department of 24 Environmental Protection in writing of the intention to 25 conduct prescribed burning at the specific location of the 26 proposed prescribed burn and the range of dates during which 27 prescribed burns could take place. 28 (2) The notification shall be provided to the Department 29 of Environmental Protection at least 25 working days before 30 the earliest possible date that a burn could occur. The 20080H2735B4239 - 5 -
1 written notification shall include a copy of the prescribed 2 burn plan, or other such form as approved by the Department 3 of Environmental Protection. 4 (3) The Department of Environmental Protection shall 5 review and provide comments, if necessary, on the prescribed 6 burn plan no later than five working days prior to the 7 earliest possible date that a burn could occur. 8 (b) Contents.--A prescribed burn plan shall include 9 procedures that minimize the possibility that fire will escape 10 from the desired area and minimize danger to the public and 11 firefighting personnel from fire and smoke. The prescribed burn 12 plan shall be consistent with the prescribed burn standards 13 approved by the State Forester, and a prescribed burn shall be 14 executed pursuant to the plan. 15 Section 8. Relationship to other laws. 16 The requirements of 25 Pa.Code § 129.14(a) and (b) (relating 17 to open burning) do not apply to a prescribed burn which is 18 executed pursuant to a prescribed burn plan consistent with 19 established standards approved by the State Forester under this 20 act. This section shall not be construed to otherwise limit the 21 authority of the Department of Environmental Protection under 22 the act of January 8, 1960 (1959 P.L.2119, No.787), known as the 23 Air Pollution Control Act, and the regulations promulgated under 24 this act. 25 Section 9. Public interest. 26 A prescribed burn conducted in compliance with this act and 27 the act of January 8, 1960 (1959 P.L.2119, No.787), known as the 28 Air Pollution Control Act, is deemed to be in the public 29 interest and shall not constitute a public or private nuisance. 30 Section 10. Prescribed burning requirements. 20080H2735B4239 - 6 -
1 Prescribed burning under the provisions of this act shall be 2 conducted: 3 (1) In compliance with standards established by the 4 State Forester pursuant to section 5. 5 (2) In compliance with a prescribed burn plan which has 6 been reviewed and approved by a prescribed burn manager and 7 is available on site while the prescribed burn or burns are 8 conducted. 9 (3) Only when at least one prescribed burn manager is 10 present on site to supervise the burn or burns that are being 11 conducted. 12 (4) Only with the written consent of the property owner 13 or the owner's designee. 14 Section 11. Immunities. 15 (a) Civil or criminal penalty.-- 16 (1) No owner of property who contracts with or 17 authorizes a prescribed burn manager or person acting under 18 the direction of a prescribed burn manager to conduct or 19 permit a prescribed burn on the property pursuant to the 20 requirements of this act shall be subject to civil or 21 criminal penalty for damage or injury caused by the fire or 22 resulting smoke, unless negligence is proven. 23 (2) No prescribed burn manager who executes and acts in 24 accordance with a prescribed burn plan that satisfies the 25 standards established pursuant to this act and who has 26 attained the qualifications for planning and conducting a 27 prescribed burn in accordance with the standards established 28 pursuant to this act shall be subject to civil or criminal 29 penalty for damage or injury caused by the fire or resulting 30 smoke, unless negligence is proven. 20080H2735B4239 - 7 -
1 (3) No person who acts under the direction of a 2 prescribed burn manager executing a prescribed burn plan that 3 satisfies the standards established pursuant to this act and 4 who has attained the relevant qualifications for 5 participating in a prescribed burn in accordance with the 6 standards established pursuant to this act shall be subject 7 to civil or criminal penalty for damage or injury caused by 8 the fire or resulting smoke, unless negligence is proven. 9 (b) Private actions.--In a private civil action arising from 10 the conduct of a prescribed burn and damage or injury caused by 11 the fire or resulting smoke, proof of compliance with the 12 requirements of this act and the standards established pursuant 13 to this act shall be admissible evidence that the duty of care 14 for such activity has been met. 15 Section 12. Effective date. 16 This act shall take effect immediately. G1L27DMS/20080H2735B4239 - 8 -