6 NYCRR Parts 191, 215 and 621 Regulatory Impact Statement
The promulgation of revisions to Parts 191, 215, and 621 are authorized by the following sections of the Environmental Conservation Law (ECL) which, taken together, clearly empower the Department to implement the rule and revisions to it:
Section 1-0101. This Section declares it to be the policy of New York State to conserve, improve and protect its natural resources and environment and control air pollution in order to enhance the health, safety and welfare of the people of New York State and their overall economic and social well being. Section 1-0101 further expresses, among other things, that it is the policy of New York State to coordinate the State's environmental plans, functions, powers and programs with those of the federal government and other regions and manage air resources to the end that the State may fulfill its responsibility as trustee of the environment for present and future generations. This Section also provides that it is the policy of New York State to foster, promote, create and maintain conditions by which man and nature can thrive in harmony by providing that care is taken for air resources that are shared with other states.
Section 3-0301. This Section empowers the Department to promulgate regulations to carry out the environmental policy of New York State set forth in Section 1-0101 and specifically empowers the Department to cooperate with officials and representatives of the federal government, other states and interstate agencies regarding problems affecting the environment of New York State. Section 3-0301 specifically empowers the Department to provide for the prevention and abatement of air pollution.
Section 9-0105. This Section generally empowers the Department to manage forests, including the prevention of fire.
Section 9-1103. This Section specifically empowers the Department to prevent and control fires.
Section 19-0103. This Section declares that it is the policy of New York State to maintain the purity of air resources and to require the use of all available practical and reasonable methods to prevent and control air pollution in the State.
Section 19-0105. This Section declares that it is the purpose of Article 19 of the ECL to safeguard the air resources of New York State under a program which is consistent with the policy expressed in Section 19-0103 and in accordance with other provisions of Article 19.
Section 19-0301. This section declares that the Department has the power to promulgate regulations for preventing, controlling or prohibiting air pollution.
Section 19-0303. This Section provides that the terms of any air pollution control regulation promulgated by the Department may differentiate between particular types and conditions of air pollution and air contamination sources.
Section 19-0305. This Section authorizes the Department to enforce the codes, rules and regulations established in accordance with Article 19.
Section 70-0707. This Section empowers the Department to promulgate procedural rules and regulations.
Sections 71-2103 and 71-2105. These sections include provisions for the civil and criminal enforcement of Article 19 of the ECL.
Legislative Objectives
It is the declared policy of the state of New York, as pronounced by the Legislature in the Environmental Conservation Law, to maintain a reasonable degree of purity of the air resources of the state consistent with the public health and welfare and the public enjoyment and the protection of physical property and other resources. That policy requires the use of all available practical and reasonable methods to prevent and control air pollution in the state of New York. The department has the power, as provided for in the Environmental Conservation Law, to formulate, adopt and promulgate, amend and repeal codes and rules and regulations for preventing, controlling or prohibiting air pollution in a manner consistent with that policy. In furtherance of that policy and the Legislature's objectives, the proposed rule revision will further limit toxic emissions and be protective of public health by prohibiting the open burning of residential solid waste and yard waste in all cities, villages and towns across the State. With this proposed rule, there are some exceptions to address the needs of rural agricultural communities, local fire departments (for fire training exercises), and law enforcement officials. (For example, small-scale producers of maple syrup sometimes burn wood in converted barrels as sugaring "arches". This practice is specifically exempted to remove any confusion as to whether this is a "burn barrel.") Existing 6NYCRR Part 215 only prohibits the burning of "rubbish" in cities, villages and towns with populations greater than 20,000 and burning of land clearing debris for construction and yard waste.
Needs and Benefits
The Department was granted specific powers by the Legislature to prevent forest fires in the state. In furtherance of these objectives, the proposed rule revisions to Part 191 clarify that mission and make it consistent with the revisions to Part 215. The elimination of the Part 191 permit scheme requires the deletion of the reference to it in Part 621. Part 191 will be eliminated because the original purpose of this rule (and the permit system associated with it) was to alert Forest Rangers in fire towers that the smoke from a planned fire was not a forest fire, and therefore did not require emergency response. The fire tower program no longer exists since many, more modern methods of forest fire detection have evolved.
The purpose of revising the current Part 215 is to update regulatory requirements in regard to open fires and open burning. The composition of the residential solid waste generated today differs significantly from 30 years ago when the current Part 215 was promulgated. Plastics and other types of synthetic packaging of consumer products are a large part of today's waste stream. Smoke or emissions containing toxic compounds and particles is released into the air by the burning or combustion of plastics and other synthetic materials. This smoke from so-called burn barrels or backyard burning is often released from a smoldering fire, with little dispersion and at ground level, where people can easily breathe it. Exposure to this smoke may cause eye and nose irritation, coughing, nausea, headaches or dizziness. It may also trigger asthma attacks, aggravate heart and lung problems and increase the risk of other chronic health problems upon repeated exposure. The chance of developing health effects depends upon the type, amount and duration of exposure.1
In addition to the smoke, the ash produced may contain toxic compounds that persist in the environment and contaminate the soil. Open fires also have an effect on the safety of New Yorkers and their property. In a typical year, a significant cause of wildfires in New York State is burning debris from open fires. Finally, in addition to the recognized public health impact, the smoke and odors from backyard burning presents a serious quality of life issue by unreasonably interfering with an individual's comfortable enjoyment of life or property. The Department's regional offices receive numerous complaints regarding smoke and odors from backyard burning.
Inappropriate Fuels
The primary issue in the combustion of residential solid waste is inappropriate fuels including materials such as garbage, glossy or colored papers (e.g., Sunday comics), bleached papers, plastics, polystyrene (such as foam cups), natural or synthetic rubber, chemical and pressure-treated wood, heavy oils, asphalt, tar, etc. Heavy metals such as arsenic can be released in the smoke or remain in the ash when chromium-copper-arsenate pressure-treated wood is burned. Other toxic metals including lead, nickel and chromium may be also found in the ash depending upon the composition of the residential waste. Dioxins and related compounds can form when materials containing chlorine, such as plastics or wood treated with pentachlorophenol are burned.2 These compounds are produced by the low temperatures and incomplete combustion which is typical of backyard burning. Obviously there are no controls on an open fire which can minimize the release of these compounds as is the case with municipal solid waste incinerators. In fact, a study conducted by USEPA, NYSDOH and the Department determined that uncontrolled backyard burning of 10 pounds of trash a day produced as much air pollution as the burning of 400,000 pounds a day in a well-controlled waste incinerator.3
Potential Health Impacts from Exposure to Smoke from Open Fires
Smoke and ash from open fires contains several toxic compounds including dioxins, particulate matter (PM), polycyclic aromatic hydrocarbons (PAH), heavy metals, benzene, formaldehyde, styrene, hydrogen chloride, hydrogen cyanide, and hexachlorobenzene. A summary of the potential health effects from some of these compounds is presented in the following paragraphs.
Dioxin
Open burning is a major source of uncontrolled dioxin. According to the EPA, for the years 2002-2004, backyard burning accounted for 57 percent of the U.S. emissions of dioxins and furans, both known carcinogens that persist in the human body and the environment. Studies have linked dioxin exposure to adverse reproductive and developmental effects, suppression of the immune system, disruption of hormonal systems, and cancer.4 Dioxins are persistent and bioaccumulative compounds that remain in the environment and can build up in the food chain. Dioxins can accumulate in the fat found in meat, fish, and dairy products. Exposure to dioxin can occur when foods are eaten that have been contaminated by dioxin; for example, when backyard burning has contaminated fruits and vegetables grown in gardens or farm animals grazing upon contaminated feed or soil near burn barrels.
Particulate Matter (PM)
The 1997 EPA study evaluation of the emissions from the open burning of household waste in barrels found that PM emissions were significant (19 grams per kilogram of refuse burned) especially when compared to the emissions of a modern, well-controlled incinerator. Almost all of the PM emissions were <2.5 µm in diameter.5 Due to their size, PM-2.5 particles can by-pass the filtering mechanisms of the human respiratory system and can travel deep in to the lungs. Toxic compounds such as PAHs can adsorb onto fine particulates.6 Short-term affects from exposure to PM-2.5 include eye, nose and throat irritation, and can cause coughing, sneezing and shortness of breath. Further, short-term exposures can worsen existing medical conditions such as heart disease and asthma.7 Long-term or chronic exposures to PM-2.5 can lead to bronchitis and increased risk of lung cancer or heart disease. Exposure to particulate matter has been directly linked with a variety of health effects, including increased risks of cardiopulmonary diseases. Any increase in disease may result in additional emergency room visits and hospitalizations as well as increased school and work absenteeism. Children, the elderly, people with preexisting cardiovascular or respiratory diseases, such as asthma, and others who are active outdoors are at risk to exposures to PM-2.5.8
PAHs
PAHs are a group of naturally-occurring substances formed during the incomplete burning of coal, fuel oil, gas, wood, or other carbon-containing compounds. There are over 100 compounds in this pollutant group. PAHs are commonly found in particulate matter released from backyard burning. Some PAHs are believed to be human carcinogens.9
Carbon Monoxide
Exposures to low levels of carbon monoxide can cause serious health concerns to people with heart disease. Such exposures could cause chest pain or limit a person's ability to exercise.10
Benefits of the Proposed Rule
The primary benefit of the proposed rule, if promulgated, would be a significant improvement in health and quality of life for those impacted by smoke from a neighbor's burn barrel.
The benefit of revising Part 191 will be to eliminate a permit scheme that is no longer needed. There are other regulations, specifically the proposed revisions to Part 215, that eliminate the need for the subparts of 191 that are being deleted. The revised Part 215 bans outdoor burning, with some exceptions, thereby eliminating the need for the permits.
The benefit of revising Part 621 is to remove what would otherwise be a confusing, as well as obsolete, reference to Part 191.
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 gal) 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.
There will likely be a need for more employees (or employee hours) at rural solid waste transfer stations and at private waste haulers. Rural solid waste transfer stations are usually small facilities where residents bring their refuse, leaves, brush and recyclables. They typically consist of nothing more than a few roll-off containers into which residents deposit their wastes. When the containers are full, they are carted off to a permitted, composite lined solid waste landfill.
Due to the potential increase in the amount of household waste, brush, and land clearing debris, communities may need to upgrade these transfer facilities. Most rural transfer stations are located on adequate land for expansion; many of them being located at a former landfill which was closed under 6 NYCRR Part 360 regulations. Upgrades would primarily consist of large trash compactors for household refuse, and wood chippers or tub grinders for brush and land clearing debris. Some communities currently rent tub grinders on a weekly or monthly basis to reduce brush/limbs to wood chips or mulch. These products can in turn be given back to the residents or used in municipal landscaping projects.
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 costs 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.
Paperwork
There will be no additional paperwork.
Local Government Mandates
No additional record keeping, reporting or other requirements would be placed upon local governments if the revisions to Part 191, Part 215, and Part 621 are promulgated. There will be less paperwork on the part of local government entities that now process open burning permits.
Duplication Between this Regulation and Other Regulations and LAWS
No duplication or overlap exists with other rules. The changes to Parts 191 and 215 will serve to eliminate regulatory overlap.
Alternatives
The primary alternative is to leave the scheme as is, that is to do nothing. Another alternative is to keep the current mostly as is but lower the population threshold. Neither of these alternatives would be as protective of both the environment and human health as the proposed changes. A third alternative would be to change the threshold to one of population density; this also would not be as protective of both the environment and human health as the proposed changes. Several municipalities do have open burning restrictions. The towns of Depew and Lancaster in Western NY and the county of Monroe (Rochester) have bans on all open burning. However, a state regulation insures consistency across the state (although municipal/county bans can be more stringent) and, when it comes to crafting an air pollution regulation, the Division of Air Resources has a higher level of expertise than municipalities. Other states such as New Jersey have regulations which ban "open burning for the purpose of disposal". We prefer an option which does not require "determination of intent". A ban on all open burning is easier to understand and enforce. In addition, the Department is charged under Article 19 of the Environmental Conservation Law (ECL) with the task of setting standards that are protective of the public health. Municipalities are encouraged to share solid waste facilities and equipment.
Federal Standards
There are no applicable federal regulations pertaining to open burning.
Compliance Schedule
Compliance will be required upon the effective date of the rule, which is 30 days after filing with the Department of State.
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1 NYS DOH, "Does Burning Trash May It Disappear?" http://www.health.state.ny.us/environmental/outdoors/air/trash.htm
2 "Toxicological Profile for Chlorinated Dibenzo-p-Dioxins", U.S. Department of Health and Human Services, Public Health Service, Agency for Toxic Substances and Disease Registry, December 1998. Page 3.
3 Lemieux, P.M. Evaluation of Emissions from the Open Burning of Household Waste in Barrels, Vol. 1; Technical Report EPA-600/R-97-134a (NTIS PB98-127343); U.S. Government Printing Office: Washington, D.C., November 1997.
4 US EPA, "Backyard Burning," http://www.epa.gov/msw/backyard/health.htm
5 Lemieux, P.M. Evaluation of Emissions from the Open Burning of Household Waste in Barrels, Vol. 1; Technical Report EPA-600/R-97-134a (NTIS PB98-127343); U.S. Government Printing Office: Washington, D.C., November 1997, page 2.
6 "Health Effects of Wood Smoke", Washington State Department of Ecology, August 2004, page 8.
7 "Fine Particles Questions and Answers, NYSDOH, www.health.state.ny.us/environmental/indoors/air/pmq_a.htm, page 1. Downloaded June 15, 2007.
8 "Fine Particle (PM 2.5) Designations, Frequent Questions", EPA, www.epa.gov/pmdesignations/faq/htm, page 2.
9 US EPA, "Backyard Burning," http://www.epa.gov/msw/backyard/health.htm
10 "Health and Environmental Impacts of CO", USEPA, March 6, 2007 (obtained at www.epa.gov/air/urbanair/co/hlth1.html on June 25, 2007).
