New York Agriculture Law: Open Burning on Farms

Burning of garbage and leaves are illegal in New York, but there are specific laws which govern burning that since the regular operations of a farm typically involve the removal of trees and brush during field clearing and maintenance; the removal or trimming of diseased fruit canes, vines, and trees; and the removal of vegetative material from cultivated wetlands, among other things.

6 NYCRR Part 215 is the statue that regulates open burning necessary for disposing of agricultural waste in New York. The statute reads, in part:

[o]n-site burning of agricultural wastes as part of a valid agricultural operation on contiguous agricultural lands larger than five acres actively devoted to agricultural or horticultural use, provided such waste is actually grown or generated on those lands and such waste is capable of being fully burned within a 24-hour period.

Under §215(1)(b) “agricultural land” is defined as [t]he land and on-farm building, equipment, manure processing and handling facilities, and practices that contribute to the production, preparation and marketing of crops, livestock and livestock products as a commercial enterprise”.

Agricultural waste is defined under §215(1)(d) as “[a]ny waste from naturally grown products such as vines, trees and branches from orchards, leaves and stubble. In addition, any fully organic waste either grown or generated on the premises, including but not limited to paper feed bags, wood shavings used for livestock bedding, bailing twine, and other non-plastic materials.” Specifically excluded from agricultural waste are “pesticide containers, fertilizer bags, large plastic storage bags (including bags commonly known as “Ag bags”), offal, tires, plastic feed bags, and other plastic or synthetic materials.” This is also an issue of air control and is regulated by the New York Air Pollution Control Act (“APCA”) which is used by the DEC in regulating air quality within New York State. The APCA complies with the requirements of the Federal Clear Air Act (“CAA”).

The following is, in part, the types of open burning under 6 NYCRR §215.3 that is permitted in New York (when not proscribed by superseding local laws) that may be applicable to farmers:

1. Burning of downed limbs and branches less than 6 inches in diameter, and 8 feet in length in a town with a total population less than 20,000 people and only between May 15th and March 15th (in order to prevent wild fires);

2. Cooking devises such as barbeque grills, maple sugar arches, and the like;

3. Campfires as long as the charcoal or untreated wood is used as fuel;

4. Agricultural waste (described above);

5. Liquid petroleum fueled smudge pots to prevent frost damage to crops; and,

6. Fires started in response to an outbreak of plant or animal disease, upon request of the commissioner of the Department of Agriculture and Markets as approved by the Director of the Division of Air Resources, or for the destruction of invasive plant and insect species.

It is important to make sure that any burning is done in compliance with State, County, City/Town/Village laws. In New York State, violating the open burning regulations are subject to criminal and civil enforcement actions with a minimum fine of $500 (for the first offense).

Similarly, farmers should comply strictly with the laws because an air pollution violation under the APCA might lead to a nuisance issue which is not protected by the Right-to-Farm Statute, although most open burning on farms do not have to meet the same air quality requirements as others.

Rincker Law, PLLC is a nationally recognized food and agriculture law firm.  We are here to help farmers and ranchers maneuver the complexities of the law so they can focus on what they do best — help growing the food to feed our communities.