Legal Aspects

SMOKE

My Fire

My Smoke

My Problem

Wherever they go

1. 1955 Legislation
   • Started investigations into air pollution problems.
2. Clean Air Act of 1963
   • Provided funds to states for air pollution abatement.
3. Clean Air Act of 1967
   • Empowered Federal Government to implement air pollution control programs.
4. Clean Air Act of 1970
   • Implemented "National Ambient Air Standards"
   • Established both Primary and Secondary standards.
     • Primary: Public health
     • Secondary: Public welfare

The “Environmental Protection Agency” was established to determine and administer the standards and the States were required to meet the standards.

NATIONAL AMBIENT AIR QUALITY STANDARDS, NAAQS

NAAQS were established for those compounds found in the atmosphere that may be detrimental to human health.  When the standard is not met the area is said to be in NON-ATTAINMENT.  When NAAQS are in non-attainment the issuing of burn permits may be limited or terminated.  The various Southern states have different Smoke Management Plans that they have worked out with the EPA to establish procedures.  Typically the department of environmental quality, air quality agency, works with the various forestry commissions or divisions to establish procedures.  This allows burn managers to do “one stop” permitting rather than deal with multiple agencies.  The standards are usually reported in concentration of parts per million, PM25, PM10, etc.  The lower the number the more restrictive the standard.

• Carbon Monoxide
  • Smoke from forestry activities (wildfire and prescribed fire) produces small quantities that are rapidly diluted in the open air.
• Hydrocarbons
  • Produced in very small amounts
• Nitrogen Dioxide
  • Negligible amounts produced
• Particulate Matter
  • The pollutant that can be a problem with forestry smoke. It can affect visibility and could possibly aggravate the breathing of people affected with emphysema
• Sulfur Dioxide
  • No sulfur dioxide is found in forestry smoke except in rare cases where sulfur is in the ground.

Automobiles and coal fired electric power generating plants are probably the major contributors.

1. States are required to develop “State Implementation Plans

   • States develop comprehensive plan
   • EPA must approve
   • State can revise
   • EPA can require state to revise
     
2. Non-Attainment Areas” are determined by samplers scattered throughout the State.
   • Birmingham hovers on the borderline – on particulates. As a result, Jefferson and Shelby Counties are closed to open burning during certain periods.
     
3. State and Local Regulations
   • Forestry Burning is now exempt
   • When other major sources are reduced, they may look at forestry again.
     
4. Prevention of Significant Deterioration
   • State determines if want to keep "Clean" areas clean and not allow that area to be polluted to greater extent than it is now.
     
5. Class I Areas
   • Areas set up to be "Pristine" – All National Parks are designated as such. There are none in Alabama.

FORESTRY SMOKE

• It has a short life. It lasts for only a few hours. There are many sources and most are continuous. (Ex. all types of vehicles, plants and factories.)
• It is part of the ambient atmosphere.  Prescribed (controlled) fire has always been used by white man and by the Indians before us. However, EPA could change these criteria.
• The major Problem is visibility. Particulates are produced in large enough amounts to temporarily reduce visibility.  The major effect is reduction of visibility on highways – but only for a mile or so. They can also aggravate emphysema conditions because most of the particulates are microscopic in size and can be breathed into the lungs.

1. Highways
2. Airports
3. Hospitals
4. Non-Attainment Areas
5. Class I Areas
6. Populated Areas
7. Recreation sites
8. Chicken and Turkey Farms
9. All National Parks (They are designated as Class 1 Areas.)

Some examples are:

1. Restricted to daytime hours.
2. Restricted during "High Pollution" periods.
3. Not allowed within certain distance of SSA’s.
4. Alabama has none related to air quality – only wildfire.

1. Most states have some type of forestry forecast.
2. Many have it included in NOOA weather radio.
3. Alabama has both.

1. State Restrictions (North Carolina and Florida)
2. Voluntary Guidelines (most states)
3. Guidelines for Minimizing Risk
4. Screening System

No person shall ignite, cause to be ignited, permit to be ignited, or maintain any open fire except as follows:

1. Open fires for the cooking of food for human consumption on other than commercial premises;
2. Fires for recreational or ceremonial purposes;
3. Fires to abate a hazard, providing the hazard is so declared by the fire department or fire district having jurisdiction;
4. Fires for the prevention or control of diseases or pests;
5. Fires for training personnel in the methods of fighting fires;
6. Fires for the disposal of dangerous materials where there is no practical alternate method of disposal and burning is approved by the director;
7. Fires set for recognized agricultural, silvicultural, range, and wildlife management practices;
8. Fires set in salamanders or other devices used by construction or other workers for heating purposes;
9. Fires for the burning of trees, brush, grass, and other vegetable matter in the clearing and maintenance of rights-of-way if such burning is done by the air-curtain incinerator method, properly constructed and maintained, or by an equivalent method specifically approved by the Director;
10. Open fires specifically or expressly approved by the Director

Statutory Authority: Code of Alabama 1975, SS 22-28-14, 22-22A-5, and 22-22A-8.

Effective Date: January 18, 1972.

PROCLAMATION 3

WHEREAS, the Alabama Environmental Management Act of 1982 authorized the Alabama Department of Environmental Management (ADEM) beginning October 1, 1982 to "administer and enforce the provisions and execute the functions of the Alabama Air Pollution

Control Act or 1971...and

WHEREAS, ADEM Admin. Code R.335-3-3-.01 provides as follows: "Open Burning. No person shall ignite, cause to be ignited, permit to be ignited, or maintain any open fire except as follows: ... 335-3-3-.01(10) Open fires specifically or expressly approved by the Director. "

NOW, THEREFORE, I, Leigh Pegues, Director of the Alabama Department of Environmental Management, acting under and by virtue of the authority vested in me as Director, and in furtherance of Section 335-3-3.01(10) do hereby proclaim as follows:

1. Open burning may be conducted if it meets all the requirements set forth in the following paragraphs. Such open burning being sanctioned by this agency is meant to provide an exemption to ADEM Admin. Code R. 335-3-3-.01, only. Authority to conduct open burning under the provisions of this Proclamation does not exempt or excuse a person from the consequences, damages, or injuries which may result from such conduct, nor does it excuse or exempt any person from complying with all applicable laws, ordinances, regulations, and orders of governmental entities having jurisdiction, even though the open burning is conducted as specified in this Proclamation.
   
2. This Proclamation authorizes/subject to the conditions set forth below/Only the open burning of untreated wood, tree trimmings, brush or plant growth generated by clearing or maintenance of land, or from demolition or other practices conducted/for any of the following purposes:
   1. Erection of any structure.
   2. Construction of any highway, railroad, pipeline, or power or communication line.
   3. Maintenance or rights-of-way.
   4. development or modification or a recreational area or park.
   5. Plant husbandry practices.
      
3. Burning qualifying for this exemption from ADEM Admin. Code R. 335-3-3.01 must also meet the following conditions:
   1. THE LOCATION OF THE BURNING MUST BE AT LEAST 500 FEET FROM THE NEAREST OCCUPIED DWELLING OTHER THAN A DWELLING LOCATED ON THE PROPERTY ON WHICH THE BURNING IS CONDUCTED.
   2. The burning must be controlled so as to avoid creating a traffic hazard on any public road, street or highway as a result of the air contaminants emitted.
   3. ONLY THE WOOD AND PLANT GROWTH MATERIALS SPECIFICALLY AUTHORIZED BY PARAGRAPH 2 ABOVE MAY BE BURNED. UNDER NO CIRCUMSTANCES SHALL HEAVY OILS, ASPHALTIC MATERIALS, ITEMS CONTAINING NATURAL OR SYNTHETIC RUBBER, PLASTICS, OR REFUSE BE BURNED.
   4. Initial burning may be commenced only between the hours of 8:00 a.m. and 3:00 p.m. No combustible material is to be added to the fire between 3:00 p.m. and 8:00 a.m. the following day.
   5. Burning shall be conducted only when there is good ventilation and when the prevailing wind direction is away from any built-up area in the vicinity. No burning shall be conducted in areas under a current air stagnation advisory issued by the National Weather Service or during a "Drought Emergency" declared by the Governor.
   6. The fire shall be attended at all times.
4. The Director or his authorized representative may impose additional conditions to cover specific open burning situations where additional controls are deemed necessary to minimize air pollution.
   
5. The issuance of this Proclamation shall not relieve any person from securing permits from or otherwise complying with the requirements of the Alabama Forestry Commission, appropriate fire codes, instructions from fire marshals, or local air pollution control programs.
   
6. Approval granted by the Director under this Proclamation shall be subject to continuing review and may be withdrawn should disposal of wastes from particular operations or in particular areas by means other than open burning be found practicable or necessary.
   
7. The provisions of this Proclamation shall become effective upon its execution. It shall replace Proclamation 3, as executed on June 23, 1988, existing copies of which may be used until exhausted.

IN WITNESS WHEREOF, I hereunto set my hand this 28th day of August, 1989.

Leigh Pegues

Alabama Legal Aspects (a power point presentation)