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Natural Resources and Environmental Protection Cabinet
Department for Environmental Protection
Division for Air Quality

401 KAR 63:005. Open burning.

RELATES TO: KRS 224.10-100, 224.20-100, 224. 20-110, 224.20-120, 42 USC 7401 through 7671q

STATUTORY AUTHORITY: KRS 224.10-100

NECESSITY, FUNCTION, AND CONFORMITY: KRS 149.400 prohibits setting fires within 150 feet of woodland or brushland during fire-hazard seasons except under certain prescribed conditions. KRS 224.10-100 requires the [Natural Resources and] Environmental and Public Protection Cabinet to promulgate [prescribe] administrative regulations for the prevention, abatement, and control of air pollution. KRS 224.20-110 [100] prohibits any person from directly or indirectly, emitting into or discharging into the air under the jurisdiction of the commonwealth, or causing, permitting, or allowing to be emitted or discharged into such air, any contaminants as provided for in subsection (1) of KRS 224.01-010 that shall cause or contribute to the pollution of the air of the commonwealth in contravention of any of the rules, administrative regulations, or orders of the cabinet. This administrative regulation provides for the control of open burning.

Section 1. Definitions. Terms not defined in this section shall have the meaning given them in 401 KAR 63:001.

(1) "Clean lumber" means wood or wood products that have been cut or shaped and includes wet, air-dried, and kiln-dried wood products and does not include commercial or industrial waste or wood products that have been painted, pigment-stained, or pressure-treated using any hazardous or toxic [by] compounds [such as chromate, copper, arsenate, pentachlorophenol, and creosote].

(2) "Fire training" means the instruction of industrial, public and private firefighters conducted in accordance with safety standards and procedures as accepted by the Kentucky State Fire Marshal, the Kentucky Fire Commission or the National Wildfire Coordinating Group.

(3) "Garbage" means putrescible animal and vegetable matter accumulated [by a family in a residence] in the course of ordinary day-to-day living.

(4) [(2)] "Household rubbish" means waste material and trash[, not to include garbage,] normally accumulated by a family in a residence in the course of ordinary day-to-day living, not to include garbage, cans, glass, plastic, or other potentially hazardous waste materials.

(5) "Land clearing" means clearing of land for agricultural, residential, industrial, or commercial development purposes, including the construction of roads.

(6) [(3)] "Open burning" means the burning of any matter without a [an approved] burn chamber approved by the Kentucky Division for Air Quality, or without [and] a stack or chimney with [approved] control devices approved by the Kentucky Division for Air Quality.

(7) [(4)] "Priority I Region" means a region classified as Priority I in 401 KAR 50:020, Appendix A.

(8) "Recognized agricultural, silvicultural, range, ecological, or wildlife management practices" means burning recognized by the Kentucky Department of Agriculture, the United States Department of Agriculture, the Kentucky Division of Forestry, the United States Forest Service, the Kentucky Department of Fish and Wildlife, the Kentucky State Nature Preserves Commission, or the United States Fish and Wildlife Service as necessary to promote cultivation of crops, range, and forest lands, weed and understory abatement and pest control and prevention.

(9) "Wood waste" means untreated wood and untreated wood products, including tree stumps (whole or chipped), felled trees, tree limbs (whole or chipped), bark, sawdust, chips, scraps, slabs, millings and shavings. Wood waste does not include:

(a) Yard waste;

(b) Construction, renovation, or demolition wastes; or

(c) Clean lumber.

(10) "Yard waste" means grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs, which come from residential, commercial, retail, institutional, or industrial sources as part of maintaining yards or other private or public lands. Yard waste does not include:

(a) Construction, renovation, and demolition wastes; or

(b) Clean lumber.

Section 2. Applicability. This administrative regulation shall apply to all open burning that is not subject to another administrative regulation in 401 KAR Chapters 50 through 65.

Section 3. Prohibition of Open Burning. Except as provided in Sections 4 and 5 of this administrative regulation, open burning is prohibited.

Section 4. Allowable Open Burning. Subject to the limitations contained in this section and the restrictions contained in Section 5 [4] of this administrative regulation, open burning will be allowed for:

(1) Fires set for the cooking of food for human consumption;

(2) Fires set for recreational or ceremonial purposes;

(3) Small fires set by construction and other workers for comfort heating purposes if:

(a) The ambient temperature is below fifty (50) degrees Fahrenheit;

(b) Excessive or unusual smoke is not created;

(c) Only clean lumber or vegetative matter is burned; and

(d) The fire is burned in a container not exceeding fifty-five (55) gallons in size;

(4) Fires set for the purpose of weed abatement, disease, and pest prevention;

(5) Fires set for prevention of a fire hazard, including the disposal of dangerous materials if no safe alternative is available;

(6) Fires set for the purpose of instruction and training of public and industrial employees in the methods of fighting fires as set forth in Section 6 [5] of this administrative regulation;

(7) Fires set for recognized agricultural, silvicultural, range, ecological, and wildlife management practices;

(8) Fires set by individual homeowners for burning of leaves except in cities greater than 8,000 population located in a Priority I Region;

(9) Fires for disposal of household rubbish, not to include garbage, originating at dwellings of five (5) family units or less, if the fires are maintained by an occupant of the dwelling at the dwelling, except in cities greater than 8,000 population located in a Priority I Region;

(10) Fires set for the purpose of disposing of accidental spills or leaks of crude oil, petroleum products or other organic materials, and the disposal of absorbent material used in their removal, if no other economically feasible means of disposal is available and practical. Permission shall be obtained from the cabinet prior to burning;

(11) Fires set for disposal of natural growth for land clearing and maintenance, and trees and tree limbs felled by storms if no extraneous materials, such as tires or heavy oil which tend to produce dense smoke, are used to cause ignition or aid combustion and the burning is done on days when conditions do not pose a threat of igniting a forest fire. In regions classified Priority I, with respect to particulate matter pursuant to 401 KAR 50:020, Appendix A, the emissions from such fires shall not be equal to or greater than forty (40) percent opacity;

(12) Heating ropes that are set on fire to repair steel rails during cold weather; and

(13) Fires set by county or municipal governments to dispose of wood waste or clean lumber.

Section 5. [4.] Restrictions to Open Burning. (1) For those counties, or portions of counties, which are, or were previously, designated moderate nonattainment for the one (1) hour ozone or nonattainment for the PM10 standards or those counties, or portions of counties, which are, or were designated nonattainment for the eight (8) hour ozone or PM2.5 national ambient air quality standards, pursuant to 401 KAR 51:010, fires may be set in accordance with this administrative regulation except during the months of May, June, July, August, and September. During these months, the only open burning activities allowed are:

(a) Fires set for the cooking of food for human consumption;

(b) Fires set for prevention of a fire hazard, including disposal of dangerous materials if no safe alternative is available;

(c) Fires set for the purpose of bona fide instruction and training of public and industrial employees in the methods of fighting fires;

(d) Fires set for recognized agricultural, silvicultural, range, ecological, and wildlife management practices;

(e) Fires set for the purpose of disposing of accidental spills or leaks of crude oil, petroleum products or other organic materials, and the disposal of absorbent material used in their removal, if no other economically feasible means of disposal is available and practical. Permission shall be obtained from the cabinet prior to burning; and

(f) Fires set for recreational or ceremonial purposes.

(2) In accordance with KRS Chapter 149.400: During the periods commencing February 15 through April 30 and October 1 through December 15 each year, open burning shall not be conducted closer than 150 feet of any woodland or brushland between the hours of 6 a.m. and 6 p.m., except when the ground is covered with snow. These restrictions do not apply to fires set for the purpose of burning plant beds, fires set in conjunction with the construction, operation, or maintenance of railroads, pipelines, power lines, or other projects in the public interest, or fires set by a state government agency, or a nongovernmental organization that has obtained approval from the Kentucky Division of Forestry, for wildlife or plant habitat improvement, ecological site restoration, site preparation for natural or artificial regeneration, or fuel reduction.

(3) Open burning for land clearing purposes associated with residential, commercial, or industrial development shall be limited to a maximum of two (2) contiguous acres at any one (1) time.

(4) This administrative regulation does not authorize open burning that is prohibited by [Open burning shall not be conducted in contravention of] any local ordinance.

Section 6. [5.] Procedures for Fire Training. Burning conducted in conjunction with training for public, private and industrial firefighters is subject to the following criteria:

(1) All fire training shall be conducted in accordance with safety standards and procedures as accepted by the Kentucky State Fire Marshal, the Kentucky State Fire Commission or the National Wildfire Coordinating Group.

(2) Excluding fire training that has been approved by the Kentucky State Fire Marshal, or which has been certified [sanctioned] by the Kentucky State Fire Commission, or which is conducted in accordance with standards adopted by the National Wildfire Coordinating Group, any entity intending to conduct fire training shall submit written notification to the local Division for Air Quality regional office a minimum of fifteen (15) days prior to the scheduled training. The written notification shall state the location and the date of the proposed fire training, the name and contact information for the on-site training coordinator, the number of firefighters to be trained, the goals and the objectives of the training, and a brief summary of what is to be taught. [No fire training shall take place without the Division for Air Quality's written approval.]

(3) Any materials that [commonly known to] contain asbestos shall not be burned [unless the entity conducting the fire training can demonstrate that the materials do not contain asbestos].

(4) Materials likely to produce hazardous or toxic emissions must be removed prior to the fire training burning event, to the extent practicable, and properly disposed.

(5) Excluding fire training approved by the Kentucky Division of Forestry or the Kentucky State Fire Marshal, or which has been certified [sanctioned] by the Kentucky State Fire Commission, or which is conducted in accordance with standards adopted by the National Wildfire Coordinating Group, entities conducting fire training shall be limited to one burning event related to training per year for every ten firefighters under their supervision.

(6) Excluding fire training approved by the Kentucky Division of Forestry or the Kentucky State Fire Marshal, or which has been certified [sanctioned] by the Kentucky State Fire Commission, or which is conducted in accordance with standards adopted by the National Wildfire Coordinating Group, between May 1 and September 30, fire training shall not be conducted in any counties, or portions of counties, which are, or were previously, designated moderate nonattainment for ozone, or designated, or previously designated, nonattainment for the eight (8) hour ozone or PM2.5 (particulate matter) national ambient air quality standard, pursuant to 401 KAR 51:010.

[Prohibition of Open Burning. Except as provided in this section open burning is prohibited. Fires may be set for the purposes specified in this section throughout the year in any area of the Commonwealth which is not designated, or was not previously designated, moderate nonattainment for ozone pursuant to 401 KAR 51:010, if the fires do not violate KRS Chapters 149, 150, 227, other laws of the Commonwealth of Kentucky, or local ordinances. Purposes for which open burning is allowed are:

(1) Fires set for the cooking of food for human consumption;

(2) Fires set for recreational or ceremonial purposes;

(3) Small fires set by construction and other workers for comfort heating purposes if excessive or unusual smoke is not created;

(4) Fires set for the purpose of weed abatement, disease, and pest prevention;

(5) Fires set for prevention of a fire hazard, including the disposal of dangerous materials if no safe alternative is available;

(6) Fires set for the purpose of bona fide instruction and training of public and industrial employees in the methods of fighting fires;

(7) Fires set for recognized agricultural, silvicultural, range, and wildlife management practices;

(8) Fires set by individual home owners for burning of leaves except in cities greater than 8,000 population located in a Priority I Region;

(9) Fires for disposal of household rubbish, not to include garbage, originating at dwellings of five (5) family units or less, if the fires are maintained by an occupant of the dwelling at the dwelling, except in cities greater than 8,000 population located in a Priority I Region;

(10) Fires set for the purpose of disposing of accidental spills or leaks of crude oil, petroleum products or other organic materials, and the disposal of absorbent material used in their removal, if no other economically-feasible means of disposal is available and practical. Permission shall be obtained from the cabinet prior to burning;

(11) Fires set for disposal of natural growth for land clearing, and trees and tree limbs felled by storms, if no extraneous materials such as tires or heavy oil which tend to produce dense smoke are used to cause ignition or aid combustion and the burning is done on days when conditions do not pose a threat of igniting a forest fire. In regions classified Priority I with respect to particulate matter pursuant to 401 KAR 50:020, Appendix A, the emissions from such fires shall not be equal to or greater than forty (40) percent opacity.

(12) Heating ropes that are set on fire to repair steel rails during cold weather.

Section 4. Additional Restrictions for Ozone Nonattainment Areas and Areas Previously Designated Nonattainment for Ozone. For those areas which are, or were previously, designated moderate nonattainment for ozone pursuant to 401 KAR 51:010, fires may be set according to the provisions of Section 3 of this administrative regulation except during the months of May, June, July, August, and September. During these months, the only open burning activities allowed are:

(1) Fires set for the cooking of food for human consumption;

(2) Fires set for prevention of a fire hazard, including disposal of dangerous materials if no safe alternative is available;

(3) Fires set for the purpose of bona fide instruction and training of public and industrial employees in the methods of fighting fires;

(4) Fires set for recognized agricultural, silvicultural, range, and wildlife management practices;

(5) Fires set for the purpose of disposing of accidental spills or leaks of crude oil, petroleum products or other organic materials, and the disposal of absorbent material used in their removal, if no other economically-feasible means of disposal is available and practical. Permission shall be obtained from the cabinet prior to burning; and

(6) Fires set for recreational or ceremonial purposes.]

LAJUANA S. WILCHER, Secretary

APPROVED BY AGENCY: March 15, 2005

FILED WITH LRC: March 15, 2005 at 3 p.m.

CONTACT PERSON: Sean Alteri, Environmental Control Supervisor, Division for Air Quality, 803 Schenkel Lane, Frankfort, Kentucky 40601, phone (502) 573-3382, fax (502) 573-3787.

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

Contact person: Sean Alteri

(1) Provide a brief summary of:

(a) What this administrative regulation does: This administrative regulation allows for the open burning of specific materials within certain limitations and restrictions.

(b) The necessity of this administrative regulation: The cabinet is required to adopt and enforce administrative regulations that protect human health and the environment. This administrative regulation prescribes the types of material that can be burned, and the time and places where burning can occur to minimize the impact on human health and the environment.

(c) How this administrative regulation conforms to the content of the authorizing statutes: KRS 224.10-100 requires the cabinet to promulgate administrative regulations for the prevention, abatement, and control of air pollution. This administrative regulation minimizes the release of air contaminants resulting from open burning.

(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: The cabinet is required to protect human health and the environment by promulgating administrative regulations for the prevention, abatement, and control of air pollution. This administrative regulation minimizes the release of air contaminants resulting from open burning.

(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

(a) How the amendment will change this existing administrative regulation: The proposed amendment to this administrative regulation will clarify those instances when open burning is permitted. The amendment will also provide added flexibility for municipal and county governments in disposing of vegetative matter.

(b) The necessity of the amendment to this administrative regulation: Problems involving the disposal of debris from storms and of other similar materials indicated that the existing administrative regulation required clarification. Also, the open burning of cans, glass, plastic, or other potentially hazardous waste materials was not addressed in the existing regulation.

(c) How the amendment conforms to the content of the authorizing statutes: The existing regulation already conforms to the content of the authorizing statutes. The proposed amendment does not affect the intent of the existing regulation. The amendment serves to clarify certain sections of the administrative regulation.

(d) How the amendment will assist in the effective administration of statutes: The proposed amendment will provide both the cabinet and affected sources more specific regulations governing open burning issues. The language and format of the proposed amendment is also simplified for understanding by all of the citizens of the commonwealth.

(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation. All individuals, entities and organizations with the potential to open burn are affected by this administrative regulation.

(4) Provide an assessment of how the above group or groups will be impacted by either the implementation of this administrative regulation, if new, or by the change if it is an amendment: The amended administrative regulation will provide residences and municipal or county governments with an alternative disposal method of yard waste, wood waste, and clean lumber.

(5) Provide an estimate of how much it will cost to implement this administrative regulation:

(a) Initially: The division will not incur any additional costs to implement the proposed amendment to this administrative regulation.

(b) On a continuing basis: There will not be any continuing costs associated with the implementation of the amendment to this administrative regulation.

(6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: The division's operating budget will continue to be used to implement and enforce the amended administrative regulation.

(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment. No increase in fees or funding is necessary to implement the proposed amendment to the existing administrative regulation.

(8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees. The amended administrative regulation will not establish any fees, nor will it directly or indirectly increase any fees.

(9) TIERING: Is tiering applied? No, tiering was not applied to the amendment of this administrative regulation. The concept of tiering is not applicable to this administrative regulation. Any person is allowed to open burn if they follow the requirements of the proposed administrative regulation.

FISCAL NOTE ON LOCAL GOVERNMENT

1. Does the amendment to this administrative regulation relate to any aspect of a local government, including any service provided by that local government? Yes

2. State what unit, part or division of local government this amended administrative regulation will affect. Local governments engaging in waste disposal activities may be affected by the proposed amendment to this administrative regulation. The amendment will provide added flexibility for municipal and county governments in disposing of vegetative matter.

3. State the aspect or service of local government to which this amended administrative regulation relates. Local governments will have the option to burn wood waste, yard waste, and clean lumber. Also, the materials that are allowed to be burned are defined more clearly in this amended administrative regulation.

4. Estimate the effect of this amended administrative regulation on the expenditures and revenues of a local government for the first full year the administrative regulation is to be in effect. If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

Revenues (+/-): There is no known effect on current revenues.

Expenditures (+/-): There may be a reduction in local government expenditures as a result of this proposed amendment.

Other Explanation: There is no further


2006 Boone County Fiscal Court