Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
January 31, 2005
Sean Alteri, Regulation Development Section by email
Division for Air Quality
803 Schenkel Lane
Frankfort, Kentucky 40601
Re: Amendment to 401 KAR 63:005
Dear Mr. Alteri:
These comments are submitted on behalf of the Board and membership of the Kentucky Resources Council, Inc., concerning the proposed amendments to the existing air quality regulation governing open burning, 401 KAR 63:005.
After review of the proposed regulation, KRC submits these comments for the agency's consideration:
Existing 401 KAR 63:005 is structured in prohibitory language, providing a general rule against open burning of wastes and granting within limits, certain exceptions to the rule. The new rule eliminates the general prohibition language, making open burning the rule rather than the exception.
The loss of this prohibitory approach with exceptions to the proposed approach, which is to eliminate the general prohibition, undercuts the authority of the agency and eliminates a long-standing policy preference against uncontrolled combustion (open burning).
Continued Allowance Of Open Burning In Non-Emergency Situations Should Be Evaluated
At this point in our state’s history, when universal access to proper disposal of solid waste is both mandated of local governments and is available throughout the state; where composting, beneficial reuse and recycling of organic material into biomass and beneficial products is readily achievable both as a matter of economics and technology; where health sciences have identified an increasing concern with particulate pollution from byproducts of uncontrolled or poorly controlled combustion of organic materials; where levels of carbon in the atmosphere from combustion of fuels has triggered international concern; and where the record of damage due to wildfires associated with improperly controlled open burns has been documented, there is no rational basis for the agency to weaken existing regulations governing open burning or to allow continued open burning in non-emergency and non-training situations. As the state evaluates with concern the concentration of ambient air toxics and the carbon dioxide contribution from combustion of fossil fuels, the continued sanctioning (and indeed the expansion) of open burning of wood wastes and mixed municipal wastes is incongruous, to be generous.
Allowance of Open-Ended Local Government Open Burning Of Wood Wastes Should be Eliminated
Given the global concern with the increasing concentrations of carbon in the atmosphere and attendant increases in global temperatures associated with excess atmospheric carbon, the proposal to blanketly exempt local governments from any controls on open burning of wood waste and clean lumber is questionable public policy at best. Existing regulations already provided a mechanism to address emergency situations where storm debris required burning for disposal (though in communities such as Louisville even storm debris can and has been managed beneficially rather than through uncontrolled combustion). Allowing, for the sake of saving current dollars, unrestricted open combustion of wood wastes and clean lumber by local governments, is simply irresponsible.
The combustion of trees and other vegetative material removed from lands that are cleared for residential, commercial or industrial development, should be eliminated, since there are available technologies and businesses that recover, compost, and utilize those wood and vegetative “waste” materials. Combustion of such materials contributes unnecessarily to both particulate pollution and increased levels of atmospheric carbon, and shift to the downwind public, neighbors and the public at large the costs of site preparation that should instead be internalized by proper management and disposal or recovery of the vegetative material.
Recent literature has underscored that open burning of land clearing wastes is a net contributor to global warming.
A 2004 Report in the American Meterological Society’s Journal of Climate reviewed the impact of biomass combustion, concluding that the net effect on global temperature of the gases and particles produced when biomass is burned is one of contribution to global warming.
Scientific consensus is that global warming results from an atmospheric buildup of greenhouse gases, primarily carbon dioxide. Of the carbon dioxide that we humans contribute, roughly two-thirds is from the burning of fossil fuels and one-third is from the burning of biomass, such as forests, grasslands and agricultural crops.
But biomass burning also emits particles, many of which reflect light, causing cooling. Whereas previous studies, summarized in the comprehensive Intergovernmental Panel on Climate Change (IPCC) Third Assessment Report, have examined instantaneous changes in heat radiation due to the gases and particles produced by biomass burning, no study had examined the combined effects of gases and particles on temperature or climate over time until the Standford University study.
"The control of biomass burning, particularly during permanent deforestation, is a near-certain long-term method of slowing global warming, despite the particles," Jacobson says. "In the worst case, no net [temperature] change will occur."
Biomass is sometimes burned for fuel, as when people in villages burn dung to heat homes or cook meals. In a process called "open burning," biomass is also burned to clear land, rid debris from old crops or perform rituals. Of the three main types of open burning, 32 percent occurs in forests, 60 percent in grasslands and 8 percent in croplands. By far the most carbon is tied up in trees, so burning forests has a much larger effect on climate change than does burning grasses or crops.
Of forest burning, about 80 percent results in permanent deforestation - meaning the land is now used for some other use, such as grazing, agriculture or buildings. The remaining 20 percent of trees are regrown. When forests are permanently replaced by other plant types - shrubs, grasses, crops, all of which contain less carbon than do trees - the carbon difference accumulates in the atmosphere. "The total carbon dioxide emission from permanent deforestation is on the order of 7 to 10 percent of global fossil-fuel-carbon-dioxide emission," Jacobson says.
Jacobson's calculations used a model honed over 14 years and emission data from a variety of sources. He is an author of two textbooks - Fundamentals of Atmospheric Modeling (Cambridge University Press, 1999) and Atmospheric Pollution: History, Science, and Regulation (Cambridge University Press, 2002).
Against this backdrop, continued allowance of open burning of land clearing wastes by the development community, when there exist ready mechanisms for the composting and beneficial reuse of such woody and vegetative wastes, is less than responsible.
If the Cabinet continues to allow the combustion of land clearing wastes by developers, at a bare minimum the Cabinet should establish maximum time periods & prohibitions against off-site plumes.
Clear standards applicable to the combustion of site clearing wastes must, at a minimum, be adopted. There have been numerous instances in which site clearing debris has been ignited and has been left to smolder for long periods of time, resulting in adverse off-site impacts and interfering with the use and enjoyment of other lands.
These problems should be resolved by: (1) capping the time period during which an open burn for site clearing can occur, and requiring that the combustion efficiency be maintained to prevent smoldering; (2) requiring that visible emissions limits be met at all times at the property boundaries; and (3) incorporating a provision prohibiting any open burning that creates a nuisance condition. While this last provision is not a numerical standard, it is a necessary provision allowing Cabinet intervention where minimum compliance is maintained yet, due to site-specific conditions, an unreasonable interference with the use and enjoyment of other lands results.
It has been the law of this Commonwealth for some time that all properties have access to garbage collection and disposal, and that opportunities for recycling of recyclable components of household wastes be available.
Given the availability of solid waste collection and disposal, the continued allowance of open burning of household wastes, including papers, plastics, household hazardous wastes, and other components of the typical commingled household waste stream, is unnecessary and may, in cases, be harmful to the health of those households and their downwind neighbors.
Curiously, the Cabinet prohibits the inclusion of biomass in home trash disposal fires, yet allows the cold-start, uncontrolled combustion of household wastes that contain a wide array of disposed-of materials that, when combusted under such conditions, emit air toxics – chlorinated plastics, household solvents and other hazardous wastes, batteries, treated papers, and the like.
Below is reprinted the text of EPA’s fact sheet on open burning, which can be found at http://www.epa.gov/epaoswer/non-hw/muncpl/backyard/health.htm. The cabinet is specifically requested to justify, in light of this information, what possible policy, scientific or environmental basis there is to allow this type of entirely avoidable health risk to continue to be posed (particularly to children) through open burning of household wastes.
Burning trash in the open produces many pollutants, including:
Many dangerous health conditions can be caused by inhaling or ingesting even small amounts of these pollutants. Small children, the elderly, or people with preexisting respiratory conditions can be especially vulnerable to some of these pollutants.
Backyard burning is of particular health concern because it produces significant quantities of dioxins. Dioxins and "dioxin like" compounds are a group of 30 highly toxic chlorinated organic chemicals. They are produced naturally in small quantities, but are primarily the result of human activity. They can be produced through industrial processes such as chlorinated chemical manufacturing and metal smelting. Currently, however, the largest quantified source of dioxin emissions is the uncontrolled burning of household trash (backyard burning). Studies have shown that only small amounts of chlorinated materials in waste are required to support dioxin formation when burning waste. This means that even when materials containing high levels of chlorine, such as PVC, are removed from household trash, burning the waste still creates dioxins because nearly all household waste contains trace amounts of chlorine.
Much of the dioxins created and released into the air through backyard burning settle on plants. These plants are, in turn, eaten by meat and dairy animals, which store the dioxins in their fatty tissue. People are exposed to dioxins primarily by eating meat, fish, and dairy products, especially those high in fat. Backyard burning occurs most commonly in rural farming areas where dioxin emissions can more easily be deposited on animal feed crops and grazing lands. These dioxins then accumulate in the fats of dairy cows, beef, poultry, and swine, making human consumption of these harmful chemicals difficult to avoid.
Dioxins are classified as persistent, bioaccumulative, and toxic pollutants (PBTs). PBTs are highly toxic, long-lasting substances that can build up in the food chain to levels that are harmful to human and ecosystem health. Persistent means they remain in the environment for extended periods of time. Bioaccumulative means their concentration levels increase as they move up the food chain. As a consequence, animals at the top of the food chain (such as humans) tend to have the highest dioxin concentrations in their bodies.
Dioxins are potent toxicants with the potential to produce a broad spectrum of adverse effects in humans. Dioxins can alter the fundamental growth and development of cells in ways that have the potential to lead to many kinds of impacts. These include adverse effects upon reproduction and development, suppression of the immune system, disruption of hormonal systems, and cancer. For more detailed information on dioxin health effects, safety issues, and risk, visit EPA's Dioxin and Related Compounds Web site.
Particle pollution, also referred to as particulate matter, or PM, refers to microscopic particles released by open burning. Particles that are small enough to get into the lungs (those less than or equal to 10 um in diameter) can cause numerous health problems. Particles can aggravate respiratory conditions such as asthma and bronchitis, and have been associated with cardiac arrhythmia (heartbeat irregularities) and heart attacks. People with heart or lung disease, the elderly, and children are at highest risk from exposure to particles. For more information EPA's particulate matter site.
Polycyclic aromatic hydrocarbons, or PAHs, are a group of chemicals commonly found in particulate matter (or smoke and soot) released from backyard burning. They are formed from the incomplete combustion of certain materials. Some PAHs are carcinogenic, or cancer-causing.
People in the immediate vicinity of a burn barrel are also exposed to high levels of volatile organic compounds (VOCs) produced by open burning. Many VOCs are harmful to humans. They also contribute to ground-level ozone pollution, also known as smog, which can worsen respiratory, heart, and other existing health problems. Inhaling certain VOCs can lead to eye, nose, and throat irritation; headache; loss of coordination; nausea; and damage to liver, kidney, and central nervous system.
Another major pollutant generated by backyard burning is carbon monoxide (CO). At low levels of exposure to CO, humans may experience a variety of neurological symptoms including headache, fatigue, nausea, and vomiting. For more information, visit EPA's carbon monoxide site.
Hexachlorobenzene, or HCB, is a highly persistent environmental toxin that degrades slowly in air and, consequently, undergoes long-range atmospheric transport. HCB bioaccumulates in fish, marine animals, birds, lichens, and animals that feed on fish or lichens. Based on studies conducted on animals, long-term low-level exposures may damage a developing fetus, cause cancer, lead to kidney and liver damage, and cause fatigue and skin irritation. HCB is considered a probable human carcinogen and is toxic by all routes of exposure.
Backyard burning also produces ash residue, which can contain toxic metals such as mercury, lead, chromium, and arsenic. These metals can be toxic when ingested. When a person ingests hazardous amounts of lead, for example, he or she may experience high blood pressure, cardiovascular problems, kidney damage, and brain damage. Unaware of the potential danger, some people scatter the ash in their gardens or bury it on their property. Garden vegetables can absorb and accumulate these metals, which can make them dangerous to eat. Children playing in the yard or garden can incidentally ingest soil containing these metals. Also, rain can wash the ash into groundwater and surface water, contaminating drinking water and food.
The open burning and open detonation (except in emergency situations where undetonated materials are encountered or emergency training exercises) of discarded military ordnance should be specifically excluded from this regulation, and if not already regulated under DAQ regulations, should be subject to regulatory controls in order to assure that the emissions and resulting wastes are properly characterized, controlled and managed.
The open burning of surplus ordnance "smudge pots" by the Blue Grass Army Depot during the late 1970's, resulting in the hospitalization of scores of individuals from smoke inhalation, is perhaps the most egregious example of inappropriate undermanagement of surplus or decommissioned ordnance. Open burning and open detonation of ordnance is unjustified and potentially dangerous both from an air quality and solid waste standpoint, since those wastes may contain products of combustion and of incomplete combustion (particularly where chlorinated materials are used as part of the ordnance or chlorinated plastics are used as containment) that are of public health concern.
According to the Center for Public Environmental Oversight, http://www.cpeo.org/techtree/ttdescript/detburn.htm:
Open detonation and open burn operations are used to destroy
excess, obsolete, or unserviceable munitions and energetic (i.e., explosive) materials. Open burn and open detonation are subject to increasing regulatory restriction and these techniques may no longer be feasible in the near future. In open burning, materials such as rocket fuel are destroyed by self-sustained combustion after being ignited. In general, electric initiation systems are preferable because they provide better control. In open detonation, explosives and munitions are destroyed by a detonation of explosive charges. In the past, these operations occurred at land surface or in pits. Recently, burn trays and blast boxes have been used to control and contain resulting emissions. In detonation processes the blast box may be below grade and covered with soil to further minimize the release of emissions.
According to the CPEO, there are significant concerns regarding open detonation and open burn operations, including:
* contamination of underlying soil and groundwater with byproducts of incomplete combustion, heavy metals, or incomplete detonation products resulting from open operations;
* uncaptured emissions of hydrocarbons, metals, and other substances from open operations, which could be controlled through use of subsurface processes to minimize emissions release;
* risks to neighboring properties from sparks, flames, smoke, and toxic fumes;
* danger from accidental detonation of explosives, pyrotechnics, and propellants;
* the future hazard from the possibility that some ordnance or energetics will not be destroyed. In particular, bulk detonation may cause "kick out", the ejection of an undetonated device, distributing dangerous ordnance over a wide area. Kick-out can be minimized by the proper placement of multiple charges.
Open detonation is a form of uncontrolled incineration. It is a process that can lead to toxic releases and exposures, and which should not be allowed. The Dugway Proving Grounds, which maintains a website, contains significant information concerning advances in controls of the environmental consequences of obsolete munitions and the lack of necessary for any exemption for open detonation and burn operations. A specific exclusion from 401 KAR 63:005 should be included to prevent open burning of ordnance.
Additional specific comments concern the proposed regulation follow:
(1) The definition of “clean lumber” should categorically prohibit the combustion of wood products that have been pressure-treated. The Cabinet cannot anticipate the substitute chemical compounds that may be used instead of CCA, and the use of poorly-defined regulatory language as pressure-treated by compounds such as chromate, cooper, arsenate . . . .” leaves the reader unclear as to what characteristics are being referred to – is it their toxicity? their tendency to sorb to particulates? A categorical prohibition on lumber that has been pressure-treated is clearer and avoids arguments as to the regulation intent.
(2) The use of the definitions of “garbage” and “household rubbish” presuppose that families separate out the putrescible animal and vegetable components of their residential waste, and their glass, plastic, cans and “other potentially hazardous waste materials” for separate management. The reality is that household wastes in households where wastes are open burned, are typically commingled, and the Cabinet has no capability or intent to enforce such restrictions.
The regulation should clarify the relationship of the open burning restrictions of 63:005 to the toxics standard of 63:020, in order to assure that the open burning regulations do not inadvertently sanction emissions in violation of the standards of 63:020.
The applicability language of Section 2, literally read, could be construed as exempting from 63:005 entirely, the open burning of wastes that might be affected by another regulation, yet not be controlled by such other regulation.
For example, an open burn sanctioned under 63:005 might cause off-site emissions in violation of the fugitive emissions requirements, or might cause emissions of air toxics in violation of 63:020.
The relationship of these three regulations must be clearly explained, so that it is made clear that the open burning regulation and the controls against fugitive emissions crossing property lines and emissions of harmful quantities of air toxics, apply. This is best accomplished by incorporating in the regulation a clear obligation of a person conducting open burning under 63:005 to obey both the obligations of 63:020 and the visible emissions limits of 63:010. (If, alternatively, the Cabinet’s position is that the emissions of particulates and odors associated with open burning are point sources, then an applicant for approval should be required to conduct proper technology-based assessments and to install proper combustion controls and maintain proper operating conditions on combustion in order to minimize conventional and toxic emissions).
The standards for any permitted open burning should include set minimum distances from structures, forested areas, schools and other institutional and residential buildings, and restrictions on the use and types of accelerants. Additionally timeframes should be established in order to protect the reasonable expectations and health of other property owners.
Thank you in advance for your consideration of these comments.
cc: Scott R. Smith by email
Environment and Public Protection Cabinet
5th Floor Capital Plaza Tower
Frankfort, KY 40601