(a)What is the purpose of this section? This section limits the types of materials that can be openly burned within the Indian reservation to control emissions of particulate matter and other noxious fumes to the atmosphere and ground-level concentrations of particulate matter. It is EPA's goal to eliminate open burning disposal practices where alternative methods are feasible and practicable, to encourage the development of alternative disposal methods, to emphasize resource recovery, and to encourage utilization of the highest and best practicable burning methods to minimize emissions where other disposal practices are not feasible.
(b)Who is affected by this section? This section applies to any person who conducts open burning and to the owner of the property upon which open burning is conducted.
(c)What is exempted from this section? The following open fires are exempted from this section:
(1) Outdoor fires set for cultural or traditional purposes;
(2) Fires set for cultural or traditional purposes within structures such as sweat houses or lodges;
(3) Except during a burn ban under paragraphs (d)(2) and (d)(3) of this section, fires set for recreational purposes provided that no prohibited materials are burned;
(4) Except during a burn ban under paragraphs (d)(2) and (d)(3) of this section and with prior permission from the Regional Administrator, open outdoor fires used by qualified personnel to train firefighters in the methods of fire suppression and fire fighting techniques, provided that training fires are not allowed to smolder after the training session has terminated. Prior to igniting any structure, the fire protection service must ensure that the structure does not contain any asbestos or asbestos-containing materials; batteries; stored chemicals such as pesticides, herbicides, fertilizers, paints, glues, sealers, tars, solvents, household cleaners, or photographic reagents; stored linoleum, plastics, rubber, tires, or insulated wire; or hazardous wastes. Before requesting permission from the Regional Administrator, the fire protection service must notify any appropriate Tribal air pollution authority and obtain any permissions or approvals required by the Tribe, and by any other governments with applicable laws and ordinances;
(5) Except during a burn ban under paragraphs (d)(2) and (d)(3) of this section and with prior permission from the Regional Administrator, one open outdoor fire each year to dispose of fireworks and associated packaging materials. Before requesting permission from the Regional Administrator, the owner or operator must notify any appropriate Tribal air pollution authority and obtain any permissions or approvals required by the Tribe, and by any other governments with applicable laws and ordinances;
(6) Except during a burn ban under paragraphs (d)(2) and (d)(3) of this section, open burning for the disposal of diseased animals or other material by order of a public health official.
(d)What are the requirements for open burning?
(1) A person must not openly burn, or allow the open burning of, the following materials:
(ii) Dead animals or parts of dead animals;
(iii) Junked motor vehicles or any materials resulting from a salvage operation;
(iv) Tires or rubber materials or products;
(v) Plastics, plastic products, or styrofoam;
(vi) Asphalt or composition roofing, or any other asphaltic material or product;
(vii) Tar, tarpaper, petroleum products, or paints;
(viii) Paper, paper products, or cardboard other than what is necessary to start a fire or that is generated at single-family residences or residential buildings with four or fewer dwelling units and is burned at the residential site;
(ix) Lumber or timbers treated with preservatives;
(x) Construction debris or demolition waste;
(xi) Pesticides, herbicides, fertilizers, or other chemicals;
(xix) Any material other than natural vegetation that normally emits dense smoke or noxious fumes when burned.
(2) Except for exempted fires set for cultural or traditional purposes, all open burning is prohibited whenever the Regional Administrator declares a burn ban due to deteriorating air quality. A burn ban may be declared whenever the Regional Administrator determines that air quality levels have exceeded, or are expected to exceed, 75% of any national ambient air quality standard for particulate matter, and these levels are projected to continue or reoccur over at least the next 24 hours.
(3) Except for exempted fires set for cultural or traditional purposes, all open burning is prohibited whenever the Regional Administrator issues an air stagnation advisory or declares an air pollution alert, air pollution warning, or air pollution emergency pursuant to § 49.137 Rule for air pollution episodes.
(4) Nothing in this section exempts or excuses any person from complying with applicable laws and ordinances of local fire departments and other governmental jurisdictions.
(e)Are there additional requirements that must be met?
(1) A person subject to this section must conduct open burning as follows:
(i) All materials to be openly burned must be kept as dry as possible through the use of a cover or dry storage;
(ii) Before igniting a burn, noncombustibles must be separated from the materials to be openly burned to the greatest extent practicable;
(iii) Natural or artificially induced draft must be present, including the use of blowers or air curtain incinerators where practicable;
(iv) To the greatest extent practicable, materials to be openly burned must be separated from the grass or peat layer; and
(v) A fire must not be allowed to smolder.
(2) Except for exempted fires set for cultural or traditional purposes, a person must not initiate any open burning when:
(i) The Regional Administrator has declared a burn ban;
(ii) An air stagnation advisory has been issued or an air pollution alert, warning, or emergency has been declared by the Regional Administrator.
(3) Except for exempted fires set for cultural or traditional purposes, any person conducting open burning when such an advisory is issued or declaration is made must either immediately extinguish the fire, or immediately withhold additional material such that the fire burns down.
(f)Definitions of terms used in this section. The following terms that are used in this section are defined in § 49.123 General provisions: Air pollutant, ambient air, emission, open burning, particulate matter, PM10, PM2.5, Regional Administrator, stack, and uncombined water.
Title 40 published on 2014-07-01
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