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Laws Regulating Air with New York Agriculture

The Federal Clean Air Act (“CAA”) was signed into law in 1970 and Congress enacted the last major amendments in 1990.  The CAA charges the EPA with the protection and improvement of the country’s air quality and the ozone layer.   The New York Air Pollution Control Act (“APCA”) empowers the NYDEC to administer the federal CAA programs and to adopt and enforce regulations for preventing, controlling, and prohibiting air pollution within the state.   Similar to the CWA, the APCA requires that stationary sources of air pollution obtain an appropriate operating permit.

In 2009, The EPA implemented the Mandatory Reporting of Greenhouse Gases (GHSs) rule.  See C.F.R. 40 § 98(JJ).   According to this rule, agricultural and livestock facilities with manure management systems are required to file a report with the EPA if the operation emits 25,000 metrics tons of carbon dioxide equivalent per year.   GHS emissions resulting from enteric fermentation, rice cultivation, field burning of agricultural residues, composting, agricultural soils, and carbon storage do not trigger this reporting requirement.  See Guide for the Agriculture and Livestock Sectors, Final Rule: Mandatory Reporting of Greenhouse Gases, September 2009.

New York law restricts the open burning of many materials.   The burning of agricultural waste is permitted if:

1. It is done on-site as part of a valid agricultural operation;

2.  The waste is grown and generated on-site; and

3.  The waste is capable of being fully burned within 24 hours.

See NYCRR Tit. 6 § 215.3(d).

Fertilizer bags, large plastic storage bags (“Ag bags”), offal, tires, plastic feed bags, and other plastic or synthetic materials are not considered agricultural waste and may not be burned in an open fire.   Burning in barrels or modified barrels is also considered an open fire, therefore prohibited items may not be burned in such containers.  See NYCRR Tit. 6 § 215.1.

Violations of the CAA can result in administrative, civil, and criminal penalties.   The maximum civil penalty is $25,000 per day for each violation.   The maximum prison sentence is 15 years.  See 42 U.S.C. § 7413.

Disclaimer:
"This blog is for informational purposes only and is not intended to create an attorney-client relationship. It is recommended that you speak to an attorney licensed in your jurisdiction before relying on the information in this blog."

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