The 79th State Legislature passed two bills related to outdoor burning, H.B. 39 and S.B. 1710. One (S.B. 1710) requires the T.C.E.Q. to make changes in the sometimes hard-to-understand Texas Outdoor Burning rule [30 Texas Administrative Code 111(b)]. There is every likelihood that these changes will further burden local police agencies as they try to criminally enforce this rule. For while a violation of the Texas Outdoor Burning rule is subject to administrative enforcement by T.C.E.Q., a violation of this rule also constitutes a criminal violation of Section 7.177 of the Texas Water Code, with most enforcement falling on local police departments and sheriff’s offices. Punishment for an individual violating Section 7.177 has been set by the state legislature as a fine ranging from $1,000 to $50,000 and/or confinement of up to 180 days in jail. The other new law (H.B. 39) makes changes directly to state statute, and no modifications to the Outdoor Burning rule are needed. However, the proposed rule would add language- reflecting H.B. 39 anyway, and would add confusion to local criminal enforcement efforts.

You can get a copy of the resource materials from the following links:

• T.C.E.Q.’s proposed rule packet;
  
• House Bill 39; and,
  
• Senate Bill 1710

It will help to read the two statutes first before going through the proposed rule. 

Participate in the process
To implement H.B. 39 and S.B. 1710, the T.C.E.Q. proposes to make changes in two sections of the Texas Outdoor Burning rule: Sections 111.203 and 111.209. You are invited to participate in this rule making process. The period during which the public may make comments on these proposed changes runs through March 13, 2006, with a public hearing set for 10:00 a.m., Tuesday, March 7th at the T.C.E.Q.’s offices in Austin (Building B, Room 201A). Written comments should be mailed to Joyce Spencer, MC 205, Texas Register Team, office of Legal Services, P.O. Box 13087, Austin, TX 78711-3087 or faxed to her at (512) 239-4808. Be sure to reference Rule Project Number 2005-041-111-CE. Written comments must be received by 5:00 p.m. on March 13th to be considered.

In closely reviewing the proposed changes to Sections 111.023 and 111.209 of the Texas Outdoor Burning rule, we conclude that these proposed changes significantly alter the stated intent of the state legislature, and that modifications should be made before the proposed rule changes are adopted. 

• The proposed rule changes to implement H.B. 39 create a criminal violation with penalties far in excess of the Class C misdemeanor set by the state legislature. 
  
• The proposed rule changes to implement S.B. 1710 would apply the law to a wider part of Texas than specified by the state legislature. 

Administrative and criminal violations
At play in all this is that the Texas Outdoor Burning rule [30 Texas Administrative Code 111(b)] is enforced both administratively by the T.C.E.Q. and criminally by many local law enforcement agencies. When the rule is not followed, a criminal violation of Texas Water Code Section 7.177 results. The criminal penalties for such a violation are pretty stout: fines between $1,000 to $50,000 and/or confinement of up to 180 days for an individual and fines to $100,000 if the violator is an entity other than an individual.

House Bill 39
Of the two, this bill would appear to have the smallest impact on current local enforcement of outdoor burning rules. Through it the legislature creates a new Class C misdemeanor ($500 fine) offence for burning household refuse outdoors by adding language to Section 352.082 of the Local Government Code. This new law has limited applicability: it is "applicable only to the unincorporated area of a county that is adjacent to a county with a population of 3.3 million or more, and in which a planned community is located that has 20,000 or more acres of land that was originally established under the Urban Growth and New Community Development Act of 1970 (42 United States Code, §§4501 et seq.) and that is subject to restrictive covenants containing ad valorem or annual variable budget-based assessments on real property." Further, it only applies to "neighborhoods" and lots smaller than five acres in the unincorporated areas involved. So unless we are mistaken, this would currently restrict the application of this statute to "neighborhoods" and lots smaller than five acres in the unincorporated areas of Montgomery County, adjacent to Harris County on the north. 

According to the T.C.E.Q., local law enforcement would enforce Section 352.082 at the Class C misdemeanor level. This seems absolutely correct, and deputies would probably help restrict trash burning in crowded rural places in Montgomery County by using the new Class C misdemeanor. However, domestic waste burning is already against the criminal law in places where the residents can dispose of domestic waste by using solid waste collection services. One would hope that the Montgomery County Commissioners Court has taken care by now to assure that such solid waste services are available to everyone in this county of over 360,000, as required of them by Texas Health & Safety Code Chapter 363:

Assuming that the good commissioners of Montgomery County have done as required by this statute, every person in Montgomery County currently has access to solid waste services, and would consequently already be precluded from burning domestic waste by the current Section 111.209(1) of the Texas Outdoor Burning rule. As a violation of the Texas Outdoor Burning rule is a criminal violation of Texas Water Code Section 7.177, burning domestic waste can already result in large fines and possible jail time mentioned above, where the law is enforced. As in the case of all criminal laws, local jurisdictions have primary enforcement responsibility. With the change in the Local Government Code provided by the state legislature, such burning is also now punishable by a fine to $500 if the burning takes place in a "neighborhood" or lot smaller than five acres in Montgomery County. Note that this new Class C misdemeanor would certainly not replace the fines and confinement for a violation of TWC Chapter 7.177. But perhaps it will be easier to enforce this new Class C misdemeanor than the provisions of Texas Water Code Chapter 7.177 and the Texas Outdoor Burning rule in rural Montgomery County. The Class C misdemeanor prosecution runs through the closest JP; the prosecution of Chapter 7.177 requires a county prosecutor’s involvement, which can certainly slow enforcement in some situations. 

But that’s not the problem here. We think that there are unintended consequences in proposing to include the provisions of H.B. 39 as additional language in the Texas Outdoor Burning rule itself. The legislature already did all the work by directly modifying Local Government Code Section 352.082. The changes there completely set the Class C penalty and limit the applicability of the law to the specific geographic area intended in H.B. 39. This new statutory language is complete in itself. However, the T.C.E.Q. proposal would add the following language in the rule at Sec. 111.209(b):

The problem with adding this language here, instead of leaving it exclusively in the Local Government Code as done by the legislature, is that, as mentioned above, the violation of any part of the Texas Outdoor Burning rule, including this new bit, is also a violation of Texas Water Code Section 7.177. The state legislature wanted burning trash in confined rural spaces in Montgomery County to be a Class C misdemeanor, not an act punishable by fines to $50,000 and 180 days confinement. No addition to the Texas Outdoor Burning rule should be made to enact this new criminal law. This may be a case where a criminal law has no parallel administrative rule to be enforced by the agency. 

Senate Bill 1710
Here the state legislature directs the T.C.E.Q. to allow a greater degree of freedom in burning "trees, brush, grass, leaves, branch trimmings, and other plant growth." The legislature sets two places and situations in Texas where such burning may not be prohibited by the T.C.E.Q. 

The first situation described in the law applies to burning by a resident on his or her own property: 

• the property must be located in an area that meets the national ambient air quality standards; 
• it must not contain any part of a city that does not meet national ambient air quality standards; 
• the burning must take place on the property where the plant waste was generated; and, 
• the burning must be by the owner of the property or any other person authorized by the owner. 

The second situation describes a centralized community burn site with the following characteristics: 

• the site must be designated for consolidated burning of waste generated from specific residential properties;
• the site must be located in a county with a population of fewer than 50,000; 
• the site must be located outside of a municipality;
• the burning must be supervised by an employee of a fire department who is part of the fire protection personnel of the department, acting in the scope of the person’s employment (note: the definition given in the statute cited in S.B. 1710 does not include volunteer firefighters or off-duty paid firefighters); 
• the fire protection person must file a report with the T.C.E.Q. when the burn is completed; and,
• the waste being burned must be generated from a property for which the site is designated.

Problems related to the first situation, residential burning
The proposed rule changes legislative language in at least two ways, as can be observed:

Language from SB 1710: 
"(A) in an area that meets the national ambient air quality standards and that does not contain any part of a city that does not meet national ambient air quality standards..."

Language from the proposed rule:
"(B) in a county that is not part of a designated nonattainment area and that does not contain any part of a municipality that extends into a designated nonattainment area..."

The legislature’s "area" has become the T.C.E.Q.’s "county." This may be justified, as there are few geographic places known a "areas" in Texas that we know of. There are municipalities, counties, and a plethoria of various "regions," but few "areas." So maybe the legislature meant to say "county" and the T.C.E.Q. is providing helpful clarification.

But the second change is significant and should, in our opinion, cause a re-drafting of the proposed rule. Surely the fact is that any specific county in Texas is in one of three states on the question of meeting NAAQS: (1) the air in the county has been tested and proven to FAIL to meet the NAAQS, examples being the counties in the designated non-attainment areas; (2) the air in the county has been tested and proven to MEET the NAAQS, and no such place comes to mind, but there must be some; and, (3) the air in the county simply has not been tested with reference to the question of meeting NAAQS, and is currently "unclassifiable." This last case the situation in most of our 254 counties. 

As the language of the state legislature was clear at this point (i.e., "meets the national ambient air quality standards"), the proposed rule seems to go too far in applying the law to all of Texas (including the untested, unclassifiable parts), excluding only those counties classified as "non-attainment." We would suggest an approach that (1) changes the Texas Outdoor Burning rule now to cover areas proven to be in attainment (as S.B. 1710 directs); and, (2) lets the 80th or subsequent legislature expand the coverage to those areas that have not been proven to be non-attainment, should the 80th want to make the change. 

One should note that the current rule has the effect of prohibiting on-site plant growth in virtually all Texas cities, making the requirements of all of Section 111.219 applicable. The relaxed rule would remove the requirements of Section 111.219(2), which requires on-site plant growth burning to be outside the city limit. Burning plant growth inside a city would be removed from T.C.E.Q.'s administrative control, an effect of the legislature's direction. The change would also de-criminalize such burning inside a city limit by removing the applicability of Texas Water Code Section 7.177. Hence the burden of controlling in-city burning of plant growth would shift from local law enforcement to municipal code civil enforcement. In some Texas cities that have relied on the provisions of the Texas Outdoor Burning rule to establish the parameters of criminal burning, local ordinances will have to be enacted or changed.

Hence there is added importance in applying this law to the limited parts of Texas mandated by the legislature rather than to all areas not designated as non-attainment. Proper drafting of the revisions to the rule will give Texas cities a chance to make those local policy decisions that a further loosening of this rule may require by future legislatures. 

Problems related to the designation of a centralized burn site outside the city limit
The big problem to be foreseen with this part of the rule is the confusion that will be generated among the thousands of volunteer firefighters in rural Texas, which is, of course, not something that the T.C.E.Q. can do anything about. Three-quarters of all firefighters in the state are volunteers, and are specifically excluded from being eligible under S.B. 1710 from running the standby operations in the smaller counties where this law applies (200 of the 254 counties in Texas have populations of under 50,000 and are overwhelmingly dependent on volunteer firefighters for protection). For our part, we’d like to see this exclusion of volunteer firefighters as standby agents made clear somewhere, so that some member of a VFD in rural Texas doesn’t inadvertently get himself in a bind by thinking the T.C.E.Q. authorizes him to do standby duty. The proposed administrative rules for operating a community burn site seem fair to us. However, they are such that few rational folks will want to get involved, especially as the criminal penalties for failing to follow the rules are made clear. We would like to see "any law enforcement agency having jurisdiction" be added to those parties in Sec. 111.209(a)(4)(C)(iii) who can inspect the records of designated residential properties. Moreover "within 48" hours may be an appropriate delay for administrative notice, but we like "upon demand" for law enforcement folks trying to enforce criminal law. 

We urge you to take the time to read these materials carefully and provide comment to the T.C.E.Q. by March 13th. And if you are in Austin on March 7th, attend the public hearing. It’s bound to be instructive.

For a related discussion of outdoor burning enforcement policy, please click here.