6 NYCRR Parts 215, 191 and 621 Rural Area Flexibility Analysis

The purpose of revising Part 215 is to update regulatory requirements in regard to open fires and open burning. The need to update is based on the changes in both the type of materials burned in such fires and the increase in scientific knowledge about the contaminants released into the air by the combustion of those materials.

The purpose of revising Part 191 is to repeal outdated portions of the rule and portions that will become redundant if Part 215 is revised as recommended.

The purpose of revising Part 621 is to remove references to the permits required by current versions of Parts 191 and 215 that will become outdated if those rules are revised as recommended.

Types and Estimated Number of Rural Areas Affected

Part 215 applies statewide. The proposed revision may have a greater impact in rural areas. Although there are no firm statistics, the Department believes that many rural residents do not properly dispose of their household trash but instead burn the trash in open fires, typically in a 55-gallon drum known colloquially as a "burn barrel."

Section 191.1 applies in "the following areas, excepting therein within the corporation tax limits of any city or village; or in any town with a total town population, including incorporated or unincorporated areas, of greater than 10,000 people; all of Columbia County; all of Dutchess County except the town of Poughkeepsie; the town of New Bremen in Lewis County; all of Orange County; all of Putnam County; all of Rensselaer County; the towns of Brasher, Hermon, Lawrence, Russell and Stockholm in St. Lawrence County; the towns of Galway, Greenfield, Milton, Moreau, Northumberland, Providence, Saratoga and Wilton, and the city of Saratoga Springs outside the corporation tax limits, all in Saratoga County; the towns of Bethel, Callicoon, Cochecton, Delaware, Fallsburg, Forestburg, Fremont, Highland, Liberty, Lumberland, Mamakating, Thompson and Tusten, all in Sullivan County."

Repealing this section will have no impact on local municipalities since the activity needing the 191 permit is, for the most part, being banned by the new Part 215. Those open burning activities that will continue to be authorized by the new Part 215 (campfires, ceremonial fires, explosive demolition) are not directly regulated by current ECL or 6NYCRR statutes. Municipalities may need to revise their current statutes and ordinances to further regulate those authorized activities by the new Part 215 but most will have included these types of burning in their current regulations. Implementing the new Part 215 will simplify the enforcement of open burning by making most traditional debris fires illegal. Department police officers (ECOs and Rangers) as well as state police, sheriff deputies and local police are already authorized by State Fire Code to take action (issue a ticket or make an arrest) as they deem appropriate. Fire and local code enforcement officers will also have authority to demand an open debris fire be extinguished since State Fire Code prohibits open fires that are prohibited by State laws and regulations.

Compliance Requirements

The changes that the Department is proposing will establish a general ban on open burning with some limited exceptions. This means that no one can dispose of their trash by burning it in an open fire anywhere in the state. Currently residents of towns with populations under 20,000 are not subject to any statewide prohibition that would prevent them from burning rubbish; under the new rule this practice would be banned.

The revisions to Part 191 and Part 215 will eliminate the need for permits for those types of open fires that will still be allowed.

Costs

The following is an estimate of the costs to implement Part 215, Part 191 and Part 621. It is being done in this manner since these rules must be implemented together. These costs are somewhat difficult to estimate since the implementation of these rules will have a financial affect only on the section of the general public which currently disposes of their solid waste by burning. Difficulty arises since costs of solid waste are sometimes included in the tax base of the community. Therefore, estimating is typically done by two methods, one being the cost to the individual who is disposing of his waste, the other being the cost to the Community in which that individual lives.

Costs to the Individual:

For those who dispose of their household trash by burning it in an open fire and will no longer be able to do so under the new rule, there will be some costs for proper disposal of their household refuse. Some individual households will choose to have their refuse picked up by a waste hauler at their homes. The cost of household refuse pickup varies, but typical amounts range from $20.00 - $80.00 per month. Other households will choose to drop off their refuse at the local landfill or transfer station. According to the Departments' Division of Solid and Hazardous Materials, a survey of rural counties across New York State found the average per bag (approximately 30 gallons) disposal rate at transfer stations ranged from $1.00 to $3.00 per bag. Assuming a two bag per week average, this represents a cost of $104.00 to $312.00 per year. Transfer stations may also charge an annual fee for a permit. This cost could be as much as $100.00 per year. Combining all these costs gives us an average range of $104.00 to $412.00 per household per year.

Costs to the Community:

Most transfer stations are owned and run by municipalities (cities, towns and villages). This is due, for the most part, to the 6 NYCRR Part 360 Regulations which were promulgated on December 15, 1988. These regulations required each county to be responsible for the management and disposal all municipal solid waste generated in their area. Most counties formed solid waste management associations and either built a landfill, built a series of transfer stations, or both. In turn, the municipalities which were now responsible for waste disposal would pay for the cost of disposal by raising taxes, charging fees at transfer stations, or both. For example, a rural community with a population of 1000 might expect their cost of transport and disposal of solid waste to increase by as much as $12,155.00 per year. This is based on data provided by the Division of Solid and Hazardous Materials and assumes the following worst case factors: one resident in three currently uses a burn barrel to dispose of their waste; an average person produces four pounds of solid waste a day; and the cost of transport and disposal of solid waste is $50.00 per ton. Comparing these minimal garbage disposal costs to the costs associated with burning barrels such as the degradation of air quality, accidental forest fires, and foremost, the possible public health effects and loss of quality of life, the costs seem even more inconsequential.

The proposed rule allows exemptions for agricultural materials. These exempted materials would include wastes which are actually grown on agricultural land such as cover crops, grape vines and orchard trimmings. However, agricultural operations that currently burn plastic materials will now be required to dispose of those materials properly. Materials that fall into this category are pesticide containers, grain bags, fertilizer bags, "ag" bags (large plastic silage bags), and other packaging. Some of these materials cannot be recycled due to contamination (by the materials they contained, such as pesticides) or to the limitations of local recycling programs which may take only certain kinds of plastic (e.g., only number one or only number two plastic). For some agricultural operations these may represent a significant amount of material, potentially hundreds or even thousands of pounds of waste material.

Minimizing Adverse Impacts

There are limited exemptions for agricultural operations which should mitigate some of the costs. These are for the burning of agricultural wastes generated on-site as part of a valid agricultural operation on lands which are devoted to agricultural or horticultural use.

In addition, societal savings of health related costs in affected rural areas should more than make up for the increased costs of solid waste disposal. A single hospitalization for asthma outside of New York City cost over $8,900 and the total cost for asthma hospitalizations amounted to over $284 million in 2002.¹ This does not account for other societal costs related to asthma such as medications, lost work time, etc. Even modest reductions in the rate of asthma incidence would amount to savings of millions of dollars as well as the increased quality of life for asthma sufferers.

Rural Area Participation

The State Administrative Procedures Act requires agencies to provide public and private interests in rural areas the opportunity to participate in the rule making process and or public hearings. The Department will hold public hearings on Part 215 in upstate areas and will notify interested parties of this proposed rulemaking.

__________

^{^¹} NYSDOH, "New York State Asthma Surveillance Summary Report", October 2005, pp. 71-72.