Boondocks No. 56

Fred LeBrun on Burning Trash.

In today's paper, Fred LeBrun wrote his column on the proposed open burning ban by the DEC in almost poetic prose:

From the time I grew up in the thoroughly rural Catskills to my current life in outer Rensselaer County, standing over the rusty 55-gallon drum while a hot fire of paper and cardboard roars has been a persistent and not unpleasant ritual once a month or so. Darned if I don't feel like I've accomplished something when I'm done.

the grief I've taken from my wife and others in the family about that barrel. Not having a rural background, they are sure burning is illegal, or at least unconscionable for someone who purports to be environmentally sensitive.

In Sand Lake, as in most New York state towns of less than 20,000, it is perfectly legal to burn plain paper and cardboard—I emphasize the contents again—and unpainted wood. I don't burn the unpainted wood in the barrel; that would be a waste. I burn the wood in the fireplace, as kindling, or to bolster a stubborn log that may be damp.

Now I see, not for the first time, the Department of Environmental Conservation wants to change the rules and ban my burn barrel and hundreds of thousands like it.

Mostly because burning in barrels and with open fires has been badly abused and because in terms of protecting precious air quality, it's seemingly a barbaric practice in the 21st century.

I agree with the DEC that burn barrels have been abused, but I steadfastly believe they still have a place.

I do recognize that many people inappropriately use open fires to burn trash and garbage, brightly painted paper containing dangerous chemicals, and all manner of other junk that sends dioxins and furans, aromatic hyrocarbons, arsenic and a number of other poisons into the air. That kind of burning in barrels is just plain indefensible, and frankly, always was. The DEC believes that controlling what people burn in their barrels is impossible. So the state's answer to dealing with a legitimate air pollution problem is to try to ban any barrel burning. Not just burn barrels, incidentally, but also the municipal burning of brush and wood scrap, a yearly ritual in many towns.

I would argue, the alternatives this forces are no better environmentally, and cost us a bunch of additional money. I would also argue the nose can tell what barrels are burning. Weeding out those who abuse shouldn't be that difficult.

Understand, ours is a finely tuned environmental household. As much as she can, my wife tries to avoid buying goods and groceries with packaging we know will wind up in the landfill. We diligently recycle, sort and hand carry to the transfer station what is allowed. We compost. Oh, do we compost. When we vacation or travel, we bring everything home to sort out.

After all the recycling and composting, I've found we can reduce the volume of our remaining waste stream by half by burning the ridiculous amounts of junk mail and other paper that come to us, and all those cardboard boxes...

I know what the DEC is trying to do here. Trying to eliminate the burning of trash and garbage is a worthy goal. But why not leave it at that and try a hardy dose of education before draconian measures take my barrel away?

Dave Shaw, who heads the DEC's division of air resources, makes telling points when he says the waste stream has gotten far more complicated and dangerous to air quality in the last 30 years. And that wildfires occur all the time from badly tended open fires. And that there are more and more complaints from increasingly unsympathetic neighbors about the smell from burning barrels. There are quality of life considerations along with real health issues.

At the same time, I see many country traditions fading away or, in this case, being ruled out. For me, the burn barrel is evocative of a time when there was greater self-reliance and self-policing, when we didn't depend on rules and regs to take care of our needs. The truth is there is responsible and irresponsible barrel burning. Like just about everything else.

What's Happened so Far. Now that this has become an issue in our state on people's radar, there has been a lot of discussion back and forth. It only took a about a month, after this initial announcement in the publication of the Bulletin from the NYS Association of Towns to be discussed.

It seems the DEC is floating a trial balloon on this subject, before proposing any regulation. That's why the PR people are out in front of this proposed regulation, even before it's been drafted or publicly announced by the DEC.

Lots of Discussion. You can see the flurry of news stories on this topic on Google News.

The Oneonta Daily Star is doing an online poll on this topic that currently shows 70% of those polled are opposed to such a ban.

Legal Status. So far no such regulation has been formally proposed, although when that happens you can see it on the DEC Proposed Regulation Website.

The reality is that a certain group of activists, and NYPIRG's Environmental Division has been pushing this for a while now. The state DEC has pretty strong powers under the NYS Air Pollution Control Law of 1972 to implement regulations that work to:

... maintain a reasonable degree of purity of the air resources of the state, which shall be consistent with the public health and welfare and the public enjoyment thereof, the industrial development of the state, the propagation and protection of flora and fauna, and the protection of physical property and other resources, and to that end to require the use of all available practical and reasonable methods to prevent and control air pollution in the state of New York. Section 19-0101 of EnCon Law

Section 19-303 gives the DEC the wide power to regulate air pollution sources, using very general language that allows the DEC to regulate almost any source of air pollution.

§ 19-0303. Codes, rules and regulations.

1. A code, rule or regulation or any amendment or repeal thereof shall not be adopted until after a public hearing within the area of the state concerned. Notice of such hearing shall be given at least thirty days prior to the scheduled date of the hearing by public advertisement of the date, time, place and purpose of such hearing. At such hearing, opportunity to be heard by the department with respect to the subject
thereof shall be given to the public. A code, rule or regulation or an amendment or repeal thereof shall not become effective until thirty days after certified copies thereof shall have been filed with the secretary of state. Any person heard at such hearing shall be given written notice of the action of the department with respect to the subject thereof.

2. The code, rule and/or regulation or any amendment thereof which shall be adopted by the department may differ in its terms and provisions as between particular types and conditions of air pollution or of air contamination; as between particular air contamination sources; and as between particular areas of the state.

3. In exercising the power conferred upon it by section 19-0301 to formulate, adopt and promulgate, and to amend and repeal, codes and rules and regulations for preventing, controlling or prohibiting air pollution, the department shall give due recognition to the fact that the quantity or characteristics of air contaminants or the duration of their presence in the atmosphere, which may cause air pollution in one area of the state, may cause less air pollution or not cause any air
pollution in another area of the state, and it shall take into
consideration in this connection such factors, among others found by it to be proper and just, as existing physical conditions, zoning classifications, topography and prevailing wind directions and velocities and also the fact that a code, rule or regulation and the degree of conformance therewith which may be proper as to an essentially residential area of the state may not be proper as to a highly developed industrial area of the state.

4. In adopting any code, rule or regulation which contains a
requirement that is more stringent than the Act or regulations issued pursuant to the Act by the United States environmental protection agency, the commissioner shall, in addition to the provisions of section two hundred two-a of the state administrative procedure act, include in
the regulatory impact statement:

(a) a detailed explanation of the reason or reasons that justify
exceeding federal minimum requirements, including:

(i) satisfying any requirement of the Act as it relates to New York state, including any requirement for demonstrating attainment or maintenance of ambient air quality standards or meeting reasonable further progress pursuant to Title I of the Act;

(ii) preventing an assessment or imposition of sanctions, or the
imposition of a federal implementation plan, pursuant to the Act;

(iii) complying with a final decree of a court; or

(iv) protecting public health or the environment;

(b) an evaluation of the cost-effectiveness of the proposed code, rule or regulation, in comparison with the cost-effectiveness of reasonably available alternatives; and

(c) a review of the reasonably available alternative measures
considered by the commissioner and an explanation of the reasons for rejecting such alternatives.

Any code, rule or regulation to which this subdivision is applicable shall be subject to the approval of the environmental board pursuant to subdivision 2 of section 5-0107 of this chapter.

5. The state, through its representatives on the interstate transport commission established pursuant to section 7506a of the Act, shall provide for public review of proposed recommendations for additional control measures and attainment strategies. Such public review will be effected by the governor's designee causing a notice of such proposed recommendations to be published in the Environmental Notice Bulletin. Such public review may be conducted concurrently with any public review required pursuant to the Act.

If you can get you hands on McKiney's Consolidated Laws, 17 1/2: Environmental Conservation Law, Book ECL 15-2300 to 20-end, then you can read at length the many cases that have been litigated over these broad powers of the DEC. This has always been a very controversal text, partially when it can cost industry millions of dollars and lead to the loss of hundreds of jobs, just by the stroke of some DEC bureaucrat's pen.

Reading this law, it would appear that there would have to be a series of hearing across the state in relation to a proposed modification of Part 215 of the NYCRR 6 (Open Fires), last updated 5/17/1972. That would mean that once the regulation was proposed, their would be a series of a public hearings in major rural areas of the state (Southern Tier, North Country, Central NY, etc.), followed by a 30-day comment period after the last hearing closed.

§215.1 Definitions

(a) Garbage. The animal and vegetable waste resulting from the handling, preparation, cooking and serving of food.

(b) Open fire. Any outdoor fire or outdoor smoke producing process from which air contaminants are emitted directly into the outdoor atmosphere.

(c) Refuse. All waste material, including but not limited to, garbage, rubbish, incinerator residue, street sweepings, dead animals and offal. Refuse is classified in accordance with Table 1, Appendix 2.

(d) Refuse disposal area. Land used for depositing of refuse except that it shall not include land used for depositing of refuse from a single family, a member of which is the owner, occupant or lessee of said land, or any part of a farm on which only animal or vegetable wastes resulting from the operation of such farm are deposited. This definition includes, but is not limited to, those areas commonly referred to as landfills, sanitary landfills and dumps.

(e) Rubbish. Solid or liquid waste material, including but not limited to, paper and paper products; rags; trees or leaves, needles, and branches therefrom; vines; lawn and garden debris; furniture; cans; crockery; plastics; cartons; chemicals; paint; grease; sludges; oils and other petroleum products; wood; sawdust, demolition materials; tires; and automobiles and other vehicles and parts, for junk, salvage or disposal. Rubbish shall not include garbage, incinerator residue, street sweepings, dead animals or offal.

§215.2 Prohibitions

Except as permitted by section 215.3 of this Part, no person shall burn, cause, suffer, allow or permit the burning in an open fire:

(a) of garbage;

(b) of refuse at a refuse disposal area;

(c) of rubbish for salvage;

(d) for onsite disposal, of rubbish generated by residential activities in any city or village; or in any town with a total town population, including incorporated or unincorporated areas, of greater than 20,000;

(e) for onsite disposal, of rubbish generated by industrial or commercial activities other than agricultural;

(f) of rubbish generated by land clearing or demolition for the erection of any structure; for the construction or modification of any highway, railroad, power or communication line, or pipeline; or for the development or modification of a recreational area or park; and

(g) of refuse during an air pollution episode, in an area for which such air pollution has been designated.

The Real Impact. Of course, modifying this regulation would have no real impact on New Yorkers for the most part.

Generally police agencies do not enforce the Environmental Conservation Air Quality Regulations, that is left to specialist Environmental Conservation Officers (ECO). Police aren't regulatory officers after all, and if it's not McKinney's as a Law, they won't necessarily even know about a technical air quality regulation.

Police officers will drag you in front of a court of law like City or Town Court, ECOs will ticket you and ask you to appear before an administrative law judge. There is a big difference between a law and regulation.

If somebody where to complain, assuming they where familiar with the Environmental Conservation Regulations (unlikely), they could call the police, which would have to dispatch one of the relatively few ECOs, who after reviewing a modified Part 215 Law, could issue an appearance ticket, in which could lead to a fine for violating a regulation under the Air Control Act, although the sanctions described in that law seem absurd for this level of pollution (like making a farmer sign a consent order not to burn trash).

This is assuming that there is evidence of a violation by the time an ECO arrives—fires burn out relatively quickly, and the reality is most rural backyard burning occurs in areas where there isn't anybody else to be significantly bothered by the practice.

At the end of the day, it seems like just something to give the environmentalists something to beat their chests with as an accomplishment. If they where serious about enforcement, they'd have to get a specific statue passed, with penalties in law that any judge could understand, without having to go through the administrative law division of the DEC.

Mahindra Diesel-Hybrid Pickup Truck.

The Indian company known for their relatively inexpensive, but good quality tractors says by next year, that they will have a compact diesel pickup truck with a hybrid drive train.

I know I am certainly interested, as the truck would get around 40 miles per gallon on diesel, and would be the first compact pickup with a hybrid drive train. And if it's built anything like Mahindra's often mocked, but increasingly liked tractors, it might be something worth looking into—at least after it establishes itself in the US market for a few years.

The only downside is the truck is ugly:

It reminds me of some of the ol' Datsun trucks of another era. Then again, those where good trucks in their days, say nothing of their styling.

Cornell Campus Republicans Call for Concealed Carry.

Over on the NYS Riffle and Pistol Assocation Blog, there is an interesting article about some students over at Cornell that are pushing to allow concealed carry permit holders to have firearms on campus. 

Although prevalent on the Arts Quad during the morning hours, the removal of many of the signs by the afternoon conveyed a sense of disapproval from some members of the Cornell community who support’s the University’s “gun-free zone” policy.

According to a handout distributed by the College Republicans on the Arts Quad, a concealed carry policy entails that those with permits would be afforded the same rights to protect themselves (and others) on college campuses as they would be most public areas such as parks, malls etc.

“[Concealed carry] is an appropriate way to make our campus safer,” said Ahmed Salem ’08, president of the C.U. Republicans. “Shootings are a rarity, but people are dying. Not doing anything is the wrong solution.”

Even if the campus where to permit such a thing, it would probably require a state law change to the Penal Code to allow students to carry. Right now, the only people allowed to have firearms on campus are students at SUNY ESF, and certain state university police officers, specifically defined in the Penal Law Section 420.

It seems like this would be a reasonable proposal, particularly in an era when we have to be so concerned about school violence. Maybe if people where able to have concealed firearms, then it would lower the chance of school violence.