Suggested Interim Enforcement Policy for Illegal Burning

Enforce these two laws in all circumstances where the burner has no permit or T.C.E.Q. permission to burn:

Texas Water Code Section 7.183. Intentional or Knowing Emission of Air Contaminant and Knowing Endangerment. "A person commits an offense if the person intentionally or knowingly ... emits an air contaminant with the knowledge that the person is placing another person in imminent danger of death or serious bodily injury ..." without strictly complying with a T.C.E.Q. authorizing permit.  This statute stands alone and is not in any way dependent on the Texas Outdoor Burning rule. The definition of "contaminant" in Health & Safety Code 382 includes "smoke." The penalty for an individual convicted of this crime is a fine of $2,000 to $500,000 and/or confinement of up to 5 years. This is a serious felony and a few jurisdictions are indicting and convicting violators.

Texas Water Code Section 7.182. Reckless Emission of Air Contaminant and Knowing Endangerment. "A person commits an offense if the person recklessly ... emits an air contaminant with the knowledge that the person is placing another person in imminent danger of death or serious bodily injury ..." without strictly complying with a T.C.E.Q. authorizing permit.  This statute also stands alone and is not in any way dependent on the Texas Outdoor Burning rule. As above, the definition of "contaminant" in Health & Safety Code 382 includes "smoke." The penalty for an individual convicted of this crime is a fine of $1,000 to $250,000 and/or confinement of up to 5 years. This is also a serious felony and more jurisdictions are indicting and convicting violators. Note the reduced level of mental culpability (only "reckless" behavior is required). This is the most commonly applied serious burning felony.

Both of these laws involve burning done in such a way that others actually get hurt, or will probably get hurt. Virtually everybody in most communities will support these laws being enforced.

Enforce this rule/statute combination where the things being burned are defined as dangerous:

Now we enter the world of the Texas Outdoor Burning rule. In the above cases, somebody actually got hurt or is likely to get hurt by the air contaminant being emitted (i.e., the carcinogen smoke from the burning tires, for instance, drifts into nearby houses and the residents are hospitalized or ordered evacuated by the Incident Commander who shows up to fight the fire). In this next category, things are being burned that would probably hurt someone, but why wait until the actual damage is done? Here you enforce clear prohibitions against burning dangerous items, such as tires, found in the Texas Outdoor Burning rule.

The list of things not to be burned is found in the Texas Outdoor Burning rule [30 T.A.C. 111(b)] at Section 111.219(7): "Electrical insulation, treated lumber, plastics, non-wood construction/demolition materials, heavy oils, asphaltic materials, potentially explosive materials, chemical wastes, and items containing natural or synthetic rubber must not be burned."

Here's how burning these things is a crime in Texas, just like burglary or assault. Texas Water Code Chapter 7, Section 7.177 Violations of Clean Air Act makes it a criminal offense at 7.177(a)(5) to violate " ... a rule adopted under Chapter 382, Health and Safety Code." [Chapter 382 is the Texas Clean Air Act.]  Well, as it turns out, the Texas Outdoor Burning rule was, in fact, a rule adopted under Chapter 382 by the Texas Natural Resource Conservation Commission on August 26, 1996, the adoption being published in the Texas Register on September 3, 1996 [21 TexReg 8511]. So, what this all means is this: if you violate a section of the Texas Outdoor Burning rule, in addition to administrative law penalties that the T.C.E.Q. may impose, you have also committed a criminal violation, namely of Texas Water Code 7.177. The penalty for an individual for this offense is a fine of $1,000 to $50, 000 and/or confinement of up to 180 days. For a violator other than an individual, there is no jail time, but the fine becomes $1,000 to $100,000.

So, if a person burns any of the materials specifically listed in the Texas Outdoor Burning rule at Section 111.219(7), without a permit from the T.C.E.Q., he or she has committed an offense, punishable by the fines and confinement listed above.  In this case, the Texas Outdoor Burning rule is very clear and local enforcement officers can act. You can stop guys burning dangerous materials.

Enforce the implied prohibition on burning commercially generated waste without a permit or T.C.E.Q. permission:

Section 111.209 of the Texas Outdoor Burning rule is entitled "Exception for Disposal Fires." The five subsections authorize disposal fires in several specific situations: (1) domestic waste can be burned under some limited circumstances (see below); (2) diseased animal carcasses can be burned when it is the best way to control spread of disease; (3) land clearing and maintenance by burning brush, trees and such out in the country is authorized under some circumstances (note: the T.C.E.Q. has been directed by the State Legislature to modify this rule; see the Blog of February 18th for more information); (4) crop residue burning; and, (5) occasional brush and other plant growth burning by cities and counties, outside the city limit, not more than every two months.

Unless allowed by an order of the T.C.E.Q. in emergency situations (i.e., burning debris after a tornado has wrecked a town), the five categories above are the only ones under which disposal fires are allowed. Notice that disposal fires for commercially generated debris is not included, and such burning is a violation of the rule. Consequently, the state will treat burning of commercial waste as an administrative violation, and you may treat such burning as a criminal violation of the rule, as provided for in Texas Water Code Section 7.177 (see #2 above).

Not allowing commercial disposal burning without a T.C.E.Q. permit makes sense for a couple of other reasons, too: (1) often the things burned are prohibited items under Section 111.219(7) of the rule (see #2 above) and bystanders can get hurt; and, (2) burning by a few contractors gives them an unfair competitive advantage over other businesses not willing to commit crimes.

Burning commercially generated waste without a permit or authorization from the T.C.E.Q. is a criminal act that can be prevented, using the same law as in #2 above, in the same manner.

Help your community establish clear and reasonable rural domestic waste disposal fire policies:

Note that the Texas Outdoor Burning rule is currently in the revision process at T.C.E.Q. to modify provisions concerning burning brush, trees and other vegetative materials.  When the revised rule is issued later this year, it might represent a great time for your community to re-visit its policies and ordinances about illegal burning.

The last category for enforcement can be the most contentious and time consuming. It deals with enforcing the laws regulating disposal fires for domestic waste burning. As in the cases of #2 and #3 above, if a person violates the provision of the Texas Outdoor Burning rule regulating disposal fires for domestic waste burning, he or she is subject not only to administrative penalties imposed by the state, but, more importantly for local officers, is also subject to criminal prosecution by the local governments having jurisdiction. As in the other cases, the maximum criminal penalty for violating the Texas Outdoor Burning rule is a fine ranging from $1,000 to $50,000 and/or up to 180 days in confinement.

Domestic waste disposal fires cover a wide range of burning activities, from burn barrels to guys burning piles of waste inside a city limit (which may also be a violation of a local municipal ordinance). Making things even more confusing are the proposed rule changes which will allow burning of limbs, trees, brush and such in some places and location.

• Section 111.209(1) contains the often-confusing rule controlling domestic waste burning;
  
• This section defines "domestic waste" by referring to 30 T.A.C. 101.1: "(26) Domestic wastes--The garbage and rubbish normally resulting from the functions of life within a residence";
  
• Some example of items included as domestic waste are given in Section 111.209(1), and additional items not included are also provided (i.e., tires, non-wood construction debris, furniture, carpet, electrical wire and appliances); 
  
• Domestic waste burning is authorized by this rule provided:
  
  1.  It happens at a property designed for and used exclusively as a private residence;
  
  2.  The residence can't house more than three families;
  
  3.  When the local government having jurisdiction (i.e., the city or county) doesn't provided (or authorize others to provide) domestic waste collection at the property where the waste is being generated; and,
  
  4.  When the waste is generated only from that property.

Numbers 1, 2 and 4 are clear. It's the third one that is a little confusing. Which governments have "authorized" domestic waste collection, and which have not? There is actually a fairly obscure Texas statute on that which dates from September 1989:

"Health & Safety Code Chapter 363.113.  ESTABLISHMENT OF SOLID WASTE MANAGEMENT SERVICES.  Each county with a population of more than 30,000 and each municipality shall review the provision of solid waste management services in its jurisdiction and shall assure that those services are provided to all persons in its jurisdiction by a public agency or private person."

Municipalities
So, the law requires each of the 1,210-or-so municipalities to provide or authorize the provision (not required to be free to citizens) of domestic waste collection.  Once the garbage trucks are rolling, domestic waste disposal services are available and waste fires inside a city limit is no longer legal (except, of course, unless the T.C.E.Q. has authorized it for some reason). Trash cannot legally be burned in most cities. Yet in some cities disposal fires are in fact "allowed," especially in East Texas, where the practice of in-city trash burning is pervasive. Our caution  to local environmental enforcement officers is that state rules and local policies, especially those backed by formal municipal ordinances, sometimes clash. Theory would suggest that state law would trump in such circumstances, but, of course, the exact opposite is usually true. If your city  "allows" domestic waste burning, it is officially condoning a very unhealthy practice, generally to the detriment of the citizens. Such policies need re-examining and, perhaps, the ordinances can be modified.

Counties
Out in the unincorporated parts of the county, things can be confusing also. The same rules apply: domestic waste burning is OK if it is just residential waste being burned and there is no trash collection service available. But a lot of folks living out in the country burn anyway. The question that, in our opinion, the enforcement officer should ask himself or herself is, "Are categories #1, #2 or #3 in this little chart being violated?" If so, move against the burner under these provisions.