After reading TCEQ Regulatory Guidance on outdoor burning, I'm somewhat unsure about the interplay between burn bans on the city vs. county level. Is 352.081 of the Local Government Code the only authority/limitation for county burn bans, so that the requirement of providing on-premises trash collection services does not apply to counties?

Also, what exemptions must be recognized on the county, as opposed to state or city level? I know many of you have much more extensive experience with county burn bans than I, and I would appreciate your guidance.

Thanks,

Bryce Perry

The following is a summary that I prepared for use in my county:

Under Texas Local Government Code �352.081(c)(1) a commissioners court is authorized to institute a burn ban order if certain drought conditions exist. This burn ban order expires when the county receives notice from the Texas Forest Service that drought conditions no longer exist or when the time period expires, whichever is earlier.

A burn ban order may also be enacted under Texas Local Government Code �352.081(c(2) if commissioners court makes a finding that circumstances present in all or part of the unincorporated areas of the county create a public safety hazard that would be heightened by outdoor burning. This burn ban order may be repealed by commissioners court at any time.

A burn ban order enacted under either subsection should specify the burn ban period, which cannot be more than 90 days without a new order being adopted.

Violation of a burn ban order is a Class C misdemeanor with a fine of up to $500.00 for each person who violates the order.

Under Texas Local Government Code �352.081 no one, except the TCEQ, is authorized to grant exceptions to a burn ban order. A burn ban order does not apply to the following outdoor burning activities if authorized by the Texas Commission on Environmental Quality (TCEQ):

1.Firefighter training;
2.Public utility, natural gas pipeline or mining operations;
3.A burn meeting the standards set out in the Natural Resources Code that are conducted by a prescribed burn manager who is certified under the Natural Resources Code; or
4.Planting or harvesting of agricultural crops.

TCEQ's written position on outdoor burning relating to planting or harvesting of agricultural crops is as follows:

Burning related to agricultural crops during a ban would be authorized only when the burning is absolutely necessary and intrinsic to the harvesting of an existing crop, such as is the case with sugarcane production. Authorization would not be granted for post harvest burning related to preparation for subsequent planting. The Local Government Guide to the TNRCC, Chapter 22 (emphasis added).

Accordingly, during a burn ban, the TCEQ will not authorize outdoor burning activity in the fall for the planting of a spring crop.

Citizens can contact the TCEQ staff at (713) 767-3714.

For prosecution purposes, commissioners court should specify that the burn ban order is being enacted pursuant to Texas Local Government Code �352.081(c)(1) and indicate a specific time period for the ban on outdoor burning activities.

Future agenda notices should read as follows:

Adopt a burn ban order to restrict outdoor burning activities in the unincorporated areas of the county pursuant to Texas Local Government Code �352.081 (c) (1) for up to 90 days.

Thank you Ken, I think that is a great summation of the Local Government Code. Are you in agreement with me then that the requirements of on-premises trash collection and such as detailed in Chapter 382 of the Texas Helath and Safety Code apply only to cities/municipalities, rather than counties?

Sorry, I do not know the answer to that question.

Far be it from me to venture into an issue when I'm not entirely sure about the scope of the question , but I think the essential distinction to be drawn is one of purpose. The Clean Air Act (ch. 382, Health & Safety Code) addresses air contaminants and the sources of those contaminants. It is not intended to reach, nor do its provisions effectively reach, a determination by the commissioners court that outdoor burning of any sort would create a public safety hazard that would be exacerbated by outdoor burning. I think the argument would essentially be that, had the Legislature intended to give TCEQ (TRNRCC as it's denominated under its former moniker in section 352.081 of the Local Government Code) veto power over a commissioners court's determination that any outdoor burning presents an unreasonable danger of causing wildfire within the county because of drought conditions, it would have expressly said so in subsection (f) of section 352.081 of the LGC. Instead, the permitting authority of TCEQ that can trump a burn ban is limited to those areas of concern specifically listed in the statute. In sum, the statutes simply address different public health concerns. In reading them accordingly, no preemption concern is presented. Subchapter C of the Clean Air Act simply addresses permitting of facilities that may produce air contaminants. Subchapter E addresses the authority of local governments (including counties) to assist in enforcement of the Clean Air Act, though its more substantive provisions do appear tailored to municipal authority. Section 352.081, on the other hand, addresses counties' authority to confront the problem of burning and the danger to life and property that a break in containment of any such fire presents in the form of wildfire potential, irrespective of whether that fire is discharging air pollutants. So it would seem we're discussing apples and oranges (at least in the burn ban context).

Scott,

After looking at this much more over the last few days, let me do a better job of phrasing my question:

30 Texas Administrative Code 111.209 states that outdoor burning "shall be authorized" for domestic waste burning if "collection of domestic waste is not provided or authorized by the local government entity having jurisdiction." This limits the county authority to cover trash burning in a county burn ban.

Question: If the commissioners court wants to prohibit domestic waste burning as part of its burn ban, is it enough that trash collection is authorized for a fee from a private vendor somewhere in the county? Does the county instead have to provide the collection at no cost to prevent the burning?

I'm having trouble interpreting (or finding any authority that interprets) that specific provision.

Thanks again,

Bryce

I'm not sure I agree that the regulation necessarily results in a limitation on county authority to prevent wildfire disaster in the interest of allowing people to burn their trash consistent with the Clean Air Act. The subchapter of Title 30, chapter 111 in which the rule is found is intended to implement the Clean Air Act. See 30 Tex. Admin. Code sec. 111.203 (referencing source law as the Clean Air Act and associated rules of TNRCC). Similarly, the scope of the rules in the subchapter may be gleaned from 30 Tex. Admin. Code sec. 11.215, which provides that the executive director of TCEQ may approve outdoor burning not otherwise authorized if it will not cause or contribute to a "nuisance, traffic hazard or ... violation of any federal or state primary or secondary ambient air standard." From this we see that the target of the regulations is smoke (hence, approved burning may not cause smell, visibility or pollution problems for neighbors or users of adjacent roadways). That seems a far cry from an outright intent to trump the county's ability to temporarily suspend activity that could imminently cause loss of life or property.

Moreover, the interplay between the rules and the Local Government Code is subject to the Code Construction Act. See Tex. Gov't Code sec. 311.002(1), (4). Thus, the two provisions must be harmonized, if possible. See Tex. Gov't Code sec. 311.026(a). A reasonable harmonizing construction would be that air quality standards are essentially unaffected by temporarily banning outdoor burning, particularly when the objective is not to affect enforcement of the Clean Air Act, but rather to prevent wildfire. Instead, the regulation may be read to preempt county authority to regulate outdoor trash burning generally unless the county provides for or authorizes trash pickup. Drought conditions, on the other hand, provide a special, localized emergency circumstance addressed by section 352.081 of the Local Government Code. As such, to the extent of any irreconcilable conflict, section 352.081 would control over the regulation. Tex. Gov't Code sec. 311.026(b). Additionally, the consequences of construction must be considered. Tex. Gov't Code sec. 311.023(5). A construction under which air quality standards, which could not conceivably be adversely impacted by temporarily banning outdoor burning, would block a county's statutory authority to prevent wildfire disaster in times of drought, would be absurd.

All in all, then, I adhere to my view that the commissioners court's authority to ban outdoor burning (including trash fires) is a temporary fix for a hopefully temporary problem, where the Clean Air Act and its interstitial regulations are intended to address the more chronic issue of air pollution. For that reason, I still don't see the Clean Air Act or its regulations as interfering with the commissioners court's authority under the Local Government Code to temporarily ban outdoor trash burning.