The Community Environmental Legal Defense Fund, which drafted the ordinance for Wayne Township offers the following description of its provisions:
Passed by Wayne Township, Mifflin County, Pennsylvania by a 3-0 vote in 1998, this ordinance is primarily a "three strikes and you’re out" ordinance. It applies to all corpor ations that want to "do business" in the Township, and also(controversially) applies to corporations already doing business in the Township. In essence, the Ordinance prevents any corporation from doing business in the Township if it has a "history of consistent violations." This term was defined by the Wayne Township Supervisors as requiring three "violations" over the past fifteen years. The term"violations" is broadly defined within the Ordinance, and includes Notices of Violation, court proceedings, and any violation of state, local, or federal statutory or regulatory law.
TheOrdinance, however, also peels back the layers of ownership and control, by requiring the compliance histories of both the parent and subsidiary corporations, the Directors and Officers, other corporations upon which the Directors and Officers serve, the Principal Owner of the corporation, and other corporations in which the Principal Owner is a Principal Owner. If any of these entities has a "history of consistent violations" of law, the Township can exclude the Applicant Corporation from doing business within the Township.
If the Applicant corporation needs any type of permission from the Township for operation, the Applicant corporation must furnish these compliance histories to the Township at the time of application for permission. Other Applicant corporations must submit compliance histories if the Township has "reason to believe" that the corporation has a noncompliance history. This "reason to believe" is triggered by a citizen petition section, which allows Township residents to submit information to the Township to trigger the request. This requirement also applies to corporations already doing business in the Township -although this is a portion of the Ordinance that will probably be subjected to a legal challenge.
This ordinance has also passed in Thompson Township, Pennsylvania.
Wayne Township Environmental Protection Ordinance
Section One. Name. The name of this Ordinance shall be the "Wayne Township Environmental Protection Ordinance."
Section Two. Authority. This Ordinance is adopted and enacted pursuant to the authority granted to the Township by all relevant state and federal laws including but not limited to the following:
Theprovisions of the Second Class Township Code Article VII, as codified in 53 P.S. Section 6510 et seq., to provide for the protection and preservation of the natural resources, human resources, and to promote, protect and facilitate public health, safety and welfare.
Section Three. Purpose. The purpose of this Ordinance is to protect the health, safety, and welfare of Wayne Township residents by ensuring that any corporation doing business or planning to do business within Wayne Township does not have a history of consistent violations of law, or that its Principal Owners do not have a history of consistent violations. The purpose of this Ordinance is also to protect the health, safety, and welfare of Wayne Township residents by ensuring that the Directors or Officers of corporations doing business or planning to do business in Wayne Township do not serve as Officers or Directors for other corporations that have a history of consistent violations of law. In addition, it is the purpose of this Ordinance to ensure that the liberty of Township residents is not infringed by artificial corporate entities that cause harm or that threaten to cause harm.
Section Four. Definitions. Unless otherwise expressly stated, the following words and phrases in this chapter shall have the following meaning:
APPLICANT CORPORATION– The corporation that is already doing business within the borders of Wayne Township or the corporation that plans to do business within the borders of Wayne Township.
COMPLIANCE HISTORY– A record compiled by a corporation that lists each violation committed by the corporation in the prior twenty years to the request made by Wayne Township Supervisors for the listing. The History shall include all violations committed by the Applicant Corporation; a listing of the current Officers and Directors of the Applicant Corporation, and a compliance history for other corporations in which the Officer or Director of the Applicant Corporation is either an Officer or Director. Such Compliance History shall also list any Parent Corporation or Subsidiary Corporations. A Principal Owner Compliance History shall list other corporations in which the Principal Owner of the Applicant Corporation is a Principal Owner, and a compliance history for each of these corporations. Section Ten of this Ordinance specifically outlines the contents of the Compliance History.
CORPORATION– An organization incorporated under the laws of the Commonwealth of Pennsylvania or holding a Certificate of Authority to Do Business within the Commonwealth of Pennsylvania; or an organization incorporated under the laws of any state in the United States; also including any organization operating as an unincorporated Association, Limited Partnership, or Sole Proprietorship.
DOING BUSINESS– Any corporation does business within the Township if it owns or operates a facility within the Township, or has physical residence within the boundaries of the Township, or engages in profit making activity within the boundaries of the Township. An application for a permit or license from the Township shall constitute doing business within the definition of this term.
HISTORY OF CONSISTENT VIOLATIONS– Three or more violations committed over the prior twenty year period to the request by the Wayne Township Supervisors for the submission of the Compliance history.
ORDINANCE – "The Wayne Township Environmental Protection Ordinance".
PARENT CORPORATION – A corporation that owns over 50% of the Applicant Corporation.
PRINCIPAL OWNER – An individual that owns over 50% of the Applicant Corporation.
REASON TO BELIEVE– The Wayne Township Supervisors shall have reason to believe that a corporation has a history of consistent violations if a Township resident submits agency or government verified documents that prove that the Applicant Corporation or a Parent Corporation, or a corporation that shares Officers or Directors with the Applicant Corporation, or other corporations in which the Principal owner of the Applicant Corporation is a Principal Owner, has a history of consistent violations. This threshold shall be used to determine when to issue a request for a Compliance History from the corporation under the authority of Section Seven, Section Eight and Section Nine of this Ordinance.
SUBSIDIARY CORPORATION – A corporation with over 50% ownership held by the Applicant corporation.
SUPERVISORS – The Wayne Township Supervisors.
TOWNSHIP – Wayne Township.
VIOLATION– Includes notices of violation issued by the Department of Environmental Protection or any other Pennsylvania state agency, or any other state or federal regulatory agency; criminal convictions against the corporation brought by state, federal, or local governments and agencies; and imposition of fines and penalties by any agency of local, state, or federal government. This term shall include all violations discovered by County Conservation District personnel or by personnel employed or appointed by any local government. This term shall also be defined to include consent orders, consent agreements, and settlement agreements. Issuance of a notice of violation (NOV) shall constitute a violation, regardless of any remedy or action taken to resolve the violation.
Section Five. Statement of Law. No Corporation shall be allowed to do business within the Township if it has a history of consistent violations or if its Parent Corporation ora Subsidiary Corporation has a history of consistent violations. In addition, this Ordinance prohibits any corporation from doing business within the Township if a Director or Officer of the Applicant Corporation is a Director or Officer of another corporation that has a history of consistent violations.
Section Six. Statement of Law. No Corporation shall be allowed to do business within the Township if a Principal Owner of the Applicant Corporation is also the Principal Owner of other corporations that cumulatively possess a history of consistent violations.
Section Seven. Submission of Records. If the Supervisors have reason to believe that a corporation currently doing business within the Township has a history of consistent violations, or that a Director or Officer of that corporation is a Director or Officer in another corporation that has a history of consistent violations, or that a Parent Corporation or Subsidiary Corporation has a history of consistent violations, the Supervisors shall request that the entity submit a compliance history and/or compliance histories to the Supervisors within thirty days.
Section Eight. Submission of Records. If the Supervisors have reason to believe that a corporation planning to do business within the Township has a history of consistent violations, or that a Director or Officer of that corporation is a Director or Officer in another corporation that has a history of consistent violations, or that the Parent Corporation or Subsidiary Corporation has a history of consistent violations, the Supervisors shall request that the entity submit a compliance history and/or compliance histories to the Supervisors within thirty days.
Section Nine. Submission of Records. If the Supervisors have reason to believe that the Principal Owner of an Applicant Corporation is also the Principal Owner of corporations that cumulatively possess a history of consistent violations, the Supervisors shall request that the Principal Owner submit a compliance history for those corporations within thirty days.
Section Ten. Compliance History. The compliance history shall consist of a listing of the following:
1.Corporate Compliance History – The Applicant Corporation shall provide the Township with a listing of its Officers and Directors, and a listing of any violations that the corporation has committed over the past twenty years. In addition, the corporation shall list other corporations upon which the Applicant Corporation’s Officers and Directors serve, and a complete compliance history for each of those corporations. In addition, such Compliance History shall also contain a Compliance History for any Parent Corporation or Subsidiary Corporation.
The Corporate Compliance History shall be provided to the Township in the following form:
- Name of the Applicant Corporation;
- Current Directors and Officers of the Applicant Corporation;
- Violations committed by the Applicant Corporation in the last twenty years;
- A listing of other corporations in which the Directors and Officers of the Applicant Corporation serve as Directors or Officers;
- A Compliance History for each of the corporations listed in response to (4);
- An identification of any Parent Corporation and Subsidiary Corporations and a Compliance History for the Parent Corporation and Subsidiary Corporations.
2.Principal Owner Compliance History – If the Township has reason to believe under Section Nine of this Ordinance, then a Principal Owner Compliance History shall be provided to the Township in the following form:
- Name of the Applicant Corporation;
- Name of the Principal Owner;
- A listing of other corporations in which the Principal Owner of the Applicant Corporation is a Principal Owner;
- A Corporate Compliance History for each of the corporations listed in (3).
TheCorporate Compliance History and the Principal Owner Compliance History shall be provided to the Township within thirty days of the request made by the Township Supervisors.
Section Eleven. Powers of the Township Supervisors. The Township Supervisors shall have the authority, under this Ordinance, to prohibit a corporation from doing business in the Township that has a history of consistent violations. The Township Supervisors shall also have the authority to prohibit a corporation from doing business in the Township if the Current Directors or Officers in the Applicant Corporation serve in other corporations that have a history of consistent violations. The Township Supervisors shall also have the authority to prohibit a corporation from doing business in the Township if the Parent Corporation or Subsidiary Corporations of the Applicant Corporation have a history of consistent violations.
Section Twelve. Powers of the Township. The Township Supervisors shall have the authority to prohibit an Applicant Corporation, a Parent Corporation, Subsidiary Corporations, or Principal Owners from doing business within the Township if the entity submits false or misleading information in any documents submitted to the Township under this Ordinance.
Section Thirteen. Powers of the Township. The Township Supervisors shall have the authority to prohibit an Applicant Corporation from doing business within the Township if the Principal Owner of the Applicant Corporation is a Principal Owner of other corporations that cumulatively possess a history of consistent violations.
Section Fourteen. Powers of the Township Supervisors. The Township Supervisors shall have all the powers necessary to make this Ordinance effective.
Section Fifteen. Severability. The provisions of this Ordinance are severable, and if any section, clause, sentence, part or provision thereof shall be held illegal, invalid or unconstitutional by any court of competent jurisdiction, such decision of the court shall not affect, impair or invalidate any of the remaining sections, clauses, sentences, parts or provisions of this Ordinance. It is hereby declared to be the intent of the Supervisors that this Ordinance would have been adopted if such illegal, invalid, or unconstitutional section, clause, sentence, part or provision had not been included herein.
Section Sixteen. Effect. This Ordinance shall be effective immediately upon passage.
Agreed to this _______Day of ____________, 1997
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St. Thomas Township Supervisors
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