The current Texas Outdoor Burning rule being what it is, there has been a lot of confusion over just what or who can OK an outdoor fire. The rule is clear if you work your way through it carefully. There are two primary sources of authorizations to burn: (1) the Outdoor Burning rule itself, written through an open process; and, (2) certain people designated within the rule who can authorize various types of outdoor fires not specifically authorized within the rule itself. For example, the language of the rule authorizes fires for recreation, ceremony, cooking and warmth, crop residue clearing, and a number of other common purposes, and the TCEQ commissioner can authorize disposal fires under unique circumstances not covered by the rule, such as the need to dispose of a huge amount of wood debris following a bad storm. Another example is that local air pollution control agencies, where they exist, can authorize outdoor burning for training fire-fighting personnel. Where there are no such agencies, regional TCEQ offices can issue such authorization. Veterinarians can authorize burning diseased animal carcasses if they think that the best thing to do, and so on. All of these authorizing persons and agencies as well as various pre-authorized situations where burning is allowed are covered in the Texas Outdoor Burning rule.

Commissioners courts through burn bans and county judges through declarations of emergencies can further limit burning under emergency conditions. However, neither judge nor commissioner can authorize burning; the lifting of a burn ban simply causes the situation to revert to the provisions of the Texas Outdoor Burning rule. 

Trash burning is not authorized where waste disposal services are available. This would normally include all cities in Texas and counties over 30,000 (THSC Section 363.113 requires counties to assure that solid waste services are available to all residents when they reach that population mark). At the present moment, grass, leaves, branches and other plant growth waste are also included in the definition of "domestic waste" that cannot normally be burned. All this will change in June, however, should the TCEQ commissioners give final approval to the impending modifications to the rule. Leaves, grass, limbs and other plant growth waste will be treated differently and will become OK to burn in most of Texas.

It is unlikely that cities will be able to restrict burning through local municipal ordinances. Local communities can have ordinances regulating burning, but according to the Texas Health & Safety Code Section 382.113(b), that part of the Texas Clean Air Act that addresses the power of municipalities to further regulate outdoor burning: "An ordinance enacted by a municipality must be consistent with this chapter and the commission's rules and orders and may not make unlawful a condition or act approved or authorized under this chapter or the commission's rules or orders." The state sets the limits on burning, not local municipalities. 

Recent changes by the State Legislature and the impending TCEQ rule change will give the right to residents to burn plant growth waste on the property where is grows in most circumstances. Municipalities and fire departments may face a period of getting use to this new situation. Only plant growth waste will be eligible for burning; however, some citizens will no doubt also take the opportunity to burn the odd sack of trash. Or tire or two. 

But it is the second part of the new law and rule that we think may be most confusing to fire-fighters in the state: the changes that allow consolidated rural plant growth waste burn sites in 200 of our 254 counties. The elements of this new law bear reading:

The new Texas Outdoor Burning rule modifications enact this statute with even greater detail and should be closely consulted by anyone wanting to run such a site, supervise a burn or enforce illegal dumping and burning laws in the jurisdiction. 

The new role anticipated for fire-fighters is shown above. Consolidated  burning can only be done legally if the process is supervised by a member of the "fire protection personnel" of a fire department, acting in the scope of his or her employment, all as defined by Section 419.021 of the Government Code.

Notice that this definition does not include the three-fourths of fire-fighters in the state who serve as volunteers rather than as permanent, full-time fire department employees. These volunteers, who do the bulk of fire fighting in exactly those 200 smallest counties in the state, are not eligible to perform supervisory duty at consolidated burn sites under the new law.

However, just as fire-fighters are regularly and inappropriately requested throughout Texas to give permission for rural disposal fires, they will be inappropriately requested in the future by the public to perform supervisory duties at consolidated burn sites. In neither case are they authorized by law to act. In both cases they could face personal liability if the fire gets out of control and destroys someone’s property. If the supervision of a consolidated burn site by a volunteer fire-fighter is a matter of that VFD's policy, the entire department may well be financially liable for any mishaps.