The Honorable Ed Wilkinson State Representative P.O. Box 610 Greenwood, Arkansas 72936
Dear Representative Wilkinson:
This is in response to your request for an opinion on the apparent conflict between the "Arkansas Fire Prevention Code" and the "Arkansas Air Pollution Control Code" on the subject of open burning of refuse and other waste materials. Specifically, correspondence attached to your request notes that the Arkansas Fire Prevention Code indicates that open burns are permissible, provided an individual secures a permit from the appropriate fire official, but that the Arkansas Department of Pollution Control and Ecology takes the position that the open burning of practically any material is in violation of the Air Pollution Control Code.
It is my opinion that "non-residential" open burning of waste material is prohibited by law unless a specific exception applies, and that in cities or counties which provide a readily available solid waste collection service, it is also unlawful for residents on their own property to engage in open burning of refuse, garbage, trade wastes or other waste material.1 See generally, Op. Att'y Gen. 94-144 (copy enclosed).
Regulation 18 of the Arkansas Air Pollution Control Code, at Section 5, provides in relevant part as follows:
(a) No person shall cause or permit the open burning of refuse, garbage, trade wastes or other waste material, or shall conduct a salvage operation by open burning.
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(c) The provisions of Subsection (a) hereof shall not apply to the following activities:
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Open burning on the premises of and by the residents of any structure used exclusively as a dwelling for not more than four families; provided, however, that this exemption shall not apply, after July 30, 1973, to persons or residences located within a municipality or outside a municipality, but within a county, which municipality or county is the holder of a permit issued by the Department pursuant to Act 237 of 1971 and which permit is issued for a disposal system which provides a readily available collection service.
The relevant section of the Arkansas Fire Prevention Code is § 501, which provides in pertinent part that:
(a) Permit Required. No person shall kindle or maintain any bonfire or rubbish fire or authorize any such fire to be kindled or maintained without a permit or other proper authorization. During construction or demolition of buildings or structures no waste materials or rubbish shall be disposed of by burning on the premises or in the immediate vicinity without having obtained a permit or other proper authorization.
This regulation goes on to require such fire to be an established distance from any structure and requires proper supervision and adequate water supply, or other fire-extinguishing equipment to be present.
There thus appears to be a conflict in the regulations adopted by the Arkansas Pollution Control and Ecology Commission in the "Air Pollution Control Code," and the regulations adopted by the Director of the Arkansas State Police in the "Arkansas Fire Prevention Code." In most instances the Pollution Control Code prohibits open burning, and the Fire Prevention Code allows most types of open burning with a permit.
It is my opinion, after a review of the relevant rules and the statutes authorizing the enactments of these codes, that the Arkansas Air Pollution Control Code supersedes the Fire Prevention Code on this point.
Section 8-4-306 of the Arkansas Code provides in pertinent part as follows:
(a) In order to avoid conflicting and overlapping jurisdiction, it is the intention of this chapter to occupy, by preemption, the field of control and abatement of air pollution and contamination; and no political subdivision of this state shall enact or enforce laws, ordinances, resolutions, rules, or regulations in this field.
(b) Notwithstanding subsection (a) of this section, any political subdivision of this state may enact and enforce laws, ordinances, resolutions rules, or regulations for the purpose of prohibiting burning in the open or in a receptacle having no means for significantly controlling the fuel/air ratio. [Emphasis added.]
The statute above does acknowledge a political subdivision's authority to enact ordinances or rules prohibiting open burning. It does not recognize the authority of such subdivisions to permit such burning. I must therefore conclude that the "Arkansas Air Pollution Control Code" operates to prohibit the issuance of a burn permit for non-residential open burning (unless an exception applies, see note 1, supra), and prohibits cities and counties from issuing permits for on-site open burning by residents on their own property in cities and counties which provide a readily available collection service, unless one of the exemptions applies.
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.
Sincerely,
WINSTON BRYANT Attorney General
WB:ECW/cyh
1 There are a few limited exceptions to the prohibition against the burning of "wastes" for fires related to certain agricultural purposes, fires used for purposes of forest and wildlife management, fires used for "weed abatement" or to prevent or eliminate fire hazards and certain fires related to transportation accidents. See Rule and Regulation 18, § 5, and A.C.A. § 8-4-305 (Repl. 1993).