ENCLOSURE 2 

CERTIFICATION OF PUBLIC PARTICIPATION ACTIVITIES 

AND COMPLIANCE WITH 

STATE ADMINISTRATIVE PROCEDURES 

As required by 40 CFR 51.102 and Section 2.1 of Appendix V of 40 CFR Part 51, the 

following information regarding public participation activities and compliance with state 

administrative procedures is provided. 

PUBLIC PARTICIPATION ACTIVITIES

As required by 40 CFR 51.102(a), a public comment period to provide the opportunity 

to submit written comments concerning a proposed revision to the Commonwealth of 

Virginia State Implementation Plan was held from August 4 to September 3, 2010. 

As required by 40 CFR Part 51.102(a) and (d)(1) and (2), the public was given notice of 

the public comment period in the Washington Examiner (for the National Capital 

Interstate Air Quality Control Region), along with the location of the proposal for public 

inspection, on August 4, 2010. The notice included procedures to afford the public the 

opportunity to request that a hearing be held pursuant to 40 CFR 51.102(a); no such 

request was received. The attached copy of the notice provides the evidence required 

by Section 2.1(f) of Appendix V of 40 CFR Part 51. Similar notices were placed in at 

least one paper of general circulation in each of Virginia's other Air Quality Control 

Regions. 

The Regional Administrator for the U.S. Environmental Protection Agency was notified 

of the public comment period, as was each local air pollution control agency which will 

be significantly affected by the revision and is located in the affected Air Quality Control 

Regions. In addition, the District of Columbia, Maryland and Tennessee, which share 

affected interstate Air Quality Control Regions with Virginia, were notified of the public 

comment period. These notifications follow the requirements of 40 CFR Part 

51.102(d)(3), (4) and (5). 

COMPLIANCE WITH STATE ADMINISTRATIVE PROCEDURES

As required by Section 2.1(b) of Appendix V of 40 CFR Part 51, the regulation 

amendments were published in the Virginia Register of Regulations on February 16, 

2009 after being duly adopted by the State Air Pollution Control Board on December 15, 

2008, certified by the Office of the Attorney General as within the board’s statutory 

authority on December 15, 2008 and thus fully enforceable under Virginia law, and 

submitted to the Virginia Registrar on behalf of the Board by the Department of 

Environmental Quality as a true and accurate copy of the duly adopted regulation on 

January 21, 2009, providing the evidence required by Section 2.1(b) and (e) of 

Appendix V of 40 CFR Part 51. As required by Section 2.1(d) of Appendix V of 40 CFR 

Part 51, a copy of the actual regulation submitted for approval and incorporation by 
reference into the Commonwealth of Virginia State Implementation Plan is attached, 

along with the effective date of March 18, 2009. 

TEMPLATES\SIP-REG\REG02-PH 

SIP\NONATTN PLANS\2010\L08-SIP-2.DOC 

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(a facility where pieces of flexible polyurethane foam are cut, 

bonded, and/or laminated together or to other substrates)

Subpart PPPPPP - Lead Acid Battery Manufacturing Area 

Sources.

40 CFR 63.11421 through 40 CFR 63.11427

(grid casting facilities, paste mixing facilities, three-process 

operation facilities, lead oxide manufacturing facilities, lead 

reclamation facilities, and any other lead-emitting operation 

that is associated with the lead acid battery manufacturing 

plant)

Subpart QQQQQQ - Wood Preserving Area Sources.

40 CFR 63.11428 through 40 CFR 63.11434

(pressure or thermal impregnation of chemicals into wood to 

provide effective long-term resistance to attack by fungi, 

bacteria, insects, and marine borers)

Subpart RRRRRR - Clay Ceramics Manufacturing Area 

Sources.

40 CFR 63.11435 through 40 CFR 63.11447

(manufacture of pressed tile, sanitaryware, dinnerware, or 

pottery with an atomized glaze spray booth or kiln that fires 

glazed ceramic ware)

Subpart SSSSSS - Glass Manufacturing Area Sources.

40 CFR 63.11448 through 40 CFR 63.11461

(manufacture of flat glass, glass containers, or pressed and 

blown glass by melting a mixture of raw materials to produce 

molten glass and form the molten glass into sheets, 

containers, or other shapes)

Subpart TTTTTT - Secondary Nonferrous Metals Processing

Area Sources.

40 CFR 63.11462 through 40 CFR 63.11474 

(all crushing and screening operations at a secondary zinc 

processing facility and all furnace melting operations located 

at any secondary nonferrous metals processing facility)

Subpart UUUUUU - Reserved.

Subpart VVVVVV - Reserved.

Subpart WWWWWW - Reserved.

Subpart XXXXXX - Reserved.

Subpart YYYYYY - Reserved.

Subpart ZZZZZZ - Reserved. 

Appendix A - Test Methods. 

Appendix B - Sources Defined for Early Reduction 

Provisions. 

Appendix C - Determination of the Fraction Biodegraded 

(Fbio) in a Biological Treatment Unit. 

Appendix D - Alternative Validation Procedure for EPA 

Waste and Wastewater Methods. 

VA.R. Doc. No. R09-1616; Filed January 21, 2009, 3:35 p.m. 

Final Regulation 

REGISTRAR’S NOTICE: The State Air Pollution Control 

Board is claiming an exemption from Article 2 of the 

Administrative Process Act in accordance with § 2.2-4006 A 

3, which excludes regulations that consist only of changes in 

style or form or corrections of technical errors. The State Air 

Pollution Control Board will receive, consider and respond to 

petitions by any interested person at any time with respect to 

reconsideration or revision. 

Titles of Regulations: 9VAC5-40. Existing Stationary 

Sources (repealing 9VAC5-40-5600 through 9VAC5-40-

5645). 

9VAC5-130. Regulation for Open Burning (adding 

9VAC5-130-10 through 9VAC5-130-100).

Statutory Authority: § 10.1-1308 of the Code of Virginia; 

§§ 110, 111, 123, 129, 171, 172 and 182 of the Clean Air Act; 

40 CFR Parts 51 and 60. 

Effective Date: March 18, 2009. 

Agency Contact: Mary E. Major, Department of 

Environmental Quality, 629 East Main Street, P.O. Box 1105, 

Richmond, VA 23218, telephone (804) 698-4423 or email 

memajor@deq.virginia.gov. 

Summary:

This regulatory action (i) recodifies the Emission 

Standards for Open Burning as the Regulation for Open 

Burning in 9VAC5-130; and (ii) deletes the existing Open 

Burning Rule (Rule 4-40) located in Article 40 of 9VAC5-

40.

Article 40 

Emission Standards for Open Burning (Rule 4-40) 

(Repealed.)

9VAC5-40-5600. Applicability. (Repealed.)

A. Except as provided in subsections C and D of this 

section, the provisions of this article apply to any person who 

permits or engages in open burning or who permits or 

engages in burning using special incineration devices. 

B. The provisions of this article apply throughout the 

Commonwealth of Virginia. 

C. The provisions of this article do not apply to such an 

extent as to prohibit the burning of leaves by persons on 

property where they reside if the local governing body of the 

county, city or town in which such persons reside has enacted 
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an otherwise valid ordinance (under the provisions of § 10.1-

1308 of the Virginia Air Pollution Control Law) regulating 

such burning in all or any part of the locality. 

D. The provisions of this article do not apply to air curtain 

incinerators subject to the provisions of (i) Article 45 

(9VAC5-40-6250 et seq.), 46 (9VAC5-40-6550 et seq.), or 54 

(9VAC5-40-7950 et seq.) of 9VAC5 Chapter 40 or (ii) 

Subparts Eb, AAAA or CCCC of 40 CFR Part 60. 

9VAC5-40-5610. Definitions. (Repealed.)

A. For the purpose of these regulations and subsequent 

amendments or any orders issued by the board, the words or 

terms shall have the meanings given them in subsection C of 

this section. 

B. As used in this article, all terms not defined here shall 

have the meanings given them in 9VAC5 Chapter 10 

(9VAC5-10), unless otherwise required by context. 

C. Terms defined: 

"Air curtain incinerator" means an incinerator that operates 

by forcefully projecting a curtain of air across an open 

chamber or pit in which combustion occurs. Incinerators of 

this type can be constructed above or below ground and with 

or without refractory walls and floor. Air curtain incinerators 

are not to be confused with conventional combustion devices 

with enclosed fireboxes and controlled air technology such as 

mass burn, modular, and fluidized bed combustors. 

"Automobile graveyard" means any lot or place that is 

exposed to the weather and upon which more than five motor 

vehicles of any kind, incapable of being operated, and that it 

would not be economically practical to make operative, are 

placed, located or found. 

"Built-up area" means any area with a substantial portion 

covered by industrial, commercial or residential buildings. 

"Clean burning waste" means waste that is not prohibited to 

be burned under this article and that consists only of (i) 100% 

wood waste, (ii) 100% clean lumber or clean wood, (iii) 

100% yard waste, or (iv) 100% mixture of only any 

combination of wood waste, clean lumber, clean wood or 

yard waste. 

"Clean lumber" means wood or wood products that have 

been cut or shaped and include wet, air-dried, and kiln-dried 

wood products. Clean lumber does not include wood products 

that have been painted, pigment-stained, or pressure-treated 

by compounds such as chromate copper arsenate, 

pentachlorophenol, and creosote. 

"Clean wood" means uncontaminated natural or untreated 

wood. Clean wood includes, but is not limited to, byproducts 

of harvesting activities conducted for forest management or 

commercial logging, or mill residues consisting of bark, 

chips, edgings, sawdust, shavings or slabs. It does not include 

wood that has been treated, adulterated, or chemically 

changed in some way; treated with glues, binders or resins; or 

painted, stained or coated. 

"Commercial waste" means all solid waste generated by 

establishments engaged in business operations other than 

manufacturing or construction. This category includes, but is 

not limited to, waste resulting from the operation of stores, 

markets, office buildings, restaurants and shopping centers. 

"Construction waste" means solid waste that is produced or 

generated during construction, remodeling, or repair of 

pavements, houses, commercial buildings and other 

structures. Construction waste consists of lumber, wire, 

sheetrock, broken brick, shingles, glass, pipes, concrete, and 

metal and plastics if the metal or plastics are a part of the 

materials of construction or empty containers for such 

materials. Paints, coatings, solvents, asbestos, any liquid, 

compressed gases or semi-liquids, and garbage are not 

construction wastes and the disposal of such materials shall 

be in accordance with the regulations of the Virginia Waste 

Management Board. 

"Debris waste" means wastes resulting from land-clearing 

operations. Debris wastes include but are not limited to 

stumps, wood, brush, leaves, soil and road spoils. 

"Demolition waste" means that solid waste that is produced 

by the destruction of structures or their foundations, or both, 

and includes the same materials as construction waste. 

"Garbage" means readily putrescible discarded materials 

composed of animal, vegetable or other organic matter. 

"Hazardous waste" means a "hazardous waste" as described 

in 9VAC20-60, Hazardous Waste Management Regulations. 

"Household waste" means any waste material, including 

garbage, trash and refuse derived from households. For 

purposes of this regulation, households include single and 

multiple residences, hotels and motels, bunkhouses, ranger 

stations, crew quarters, campgrounds, picnic grounds and 

day-use recreation areas. Household wastes do not include 

sanitary waste in septic tanks (septage) that is regulated by 

other state agencies. 

"Industrial waste" means any solid waste generated by 

manufacturing or industrial process that is not a regulated 

hazardous waste. Such waste may include but is not limited to 

waste resulting from the following manufacturing processes: 

electric power generation; fertilizer/agricultural chemicals; 

food and related products/by products; inorganic chemicals; 

iron and steel manufacturing; leather and leather products; 

nonferrous metals manufacturing/foundries; organic 

chemicals; plastics and resins manufacturing; pulp and paper 

industry; rubber and miscellaneous plastic products; stone, 

glass, clay and concrete products; textile manufacturing; 

transportation equipment; and water treatment. This term 

does not include mining waste or oil and gas waste. 
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"Junk" means old or scrap copper, brass, rope, rags, 

batteries, paper, trash, rubber, debris, waste, or junked, 

dismantled, or wrecked automobiles, or parts thereof, iron, 

steel, and other old or scrap ferrous or nonferrous material. 

"Junkyard" means an establishment or place of business that 

is maintained, operated, or used for storing, keeping, buying, 

or selling junk, or for the maintenance or operation of an 

automobile graveyard, and the term shall include garbage 

dumps and sanitary landfills. 

"Landfill" means a sanitary landfill, an industrial waste 

landfill, or a construction/demolition/debris landfill. See Part 

I (9VAC20-80-10 et seq.) of 9VAC20 Chapter 80 (Solid 

Waste Management Regulations) for further definitions of 

these terms. 

"Local landfill" means any landfill located within the 

jurisdiction of a local government. 

"Opening burning" means the combustion of solid waste 

without: 

1. Control of combustion air to maintain adequate 

temperature for efficient combustion; 

2. Containment of the combustion reaction in an enclosed 

device to provide sufficient residence time and mixing for 

complete combustion; and 

3. Control of the combustion products' emission. 

"Open pit incinerator" means a device used to burn waste for 

the primary purpose of reducing the volume by removing 

combustible matter. Such devices function by directing a 

curtain of air at an angle across the top of a trench or similarly 

enclosed space, thus reducing the amount of combustion 

byproducts emitted into the atmosphere. The term also 

includes trench burners, air curtain incinerators and over draft 

incinerators. 

"Refuse" means all solid waste products having the 

characteristics of solids rather than liquids and that are 

composed wholly or partially of materials such as garbage, 

trash, rubbish, litter, residues from clean up of spills or 

contamination or other discarded materials. 

"Salvage operation" means any operation consisting of a 

business, trade or industry participating in salvaging or 

reclaiming any product or material, such as, but not limited 

to, reprocessing of used motor oils, metals, chemicals, 

shipping containers or drums, and specifically including 

automobile graveyards and junkyards. 

"Sanitary landfill" means an engineered land burial facility 

for the disposal of household waste that is so located, 

designed, constructed, and operated to contain and isolate the 

waste so that it does not pose a substantial or potential hazard 

to human health or the environment. A sanitary landfill also 

may receive other types of solid wastes, such as commercial 

solid waste, nonhazardous sludge, hazardous waste from 

conditionally exempt small quantity generators, construction, 

demolition, or debris waste and nonhazardous industrial solid 

waste. See Part I (9VAC20-80-10 et seq.) of 9VAC20 

Chapter 80 (Solid Waste Management Regulations) for 

further definitions of these terms. 

"Smoke" means small gas-borne particulate matter 

consisting mostly, but not exclusively, of carbon, ash and 

other material in concentrations sufficient to form a visible 

plume. 

"Special incineration device" means an open pit incinerator, 

conical or teepee burner, or any other device specifically 

designed to provide good combustion performance. 

"Wood waste" means untreated wood and untreated wood 

products, including tree stumps (whole or chipped), trees, tree 

limbs (whole or chipped), bark, sawdust, chips, scraps, slabs, 

millings, and shavings. Wood waste does not include: 

1. Grass, grass clippings, bushes, shrubs, and clippings from 

bushes and shrubs from residential, commercial/retail, 

institutional, or industrial sources as part of maintaining yards 

or other private or public lands. 

2. Construction, renovation, or demolition wastes. 

3. Clean lumber. 

"Yard waste" means grass, grass clippings, bushes, shrubs, 

and clippings from bushes and shrubs that come from 

residential, commercial/retail, institutional, or industrial 

sources as part of maintaining yards or other private or public 

lands. Yard waste does not include (i) construction, 

renovation, and demolition wastes or (ii) clean wood. 

9VAC5-40-5620. Open burning prohibitions. (Repealed.)

A. No owner or other person shall cause or permit open 

burning of refuse or use of special incineration devices except 

as provided in 9VAC5-40-5630. 

B. No owner or other person shall cause or permit open 

burning or the use of a special incineration device for the 

destruction of rubber tires, asphaltic materials, crankcase oil, 

impregnated wood or other rubber or petroleum based 

materials except when conducting bona fide fire fighting 

instruction at fire fighting training schools having permanent 

facilities. 

C. No owner or other person shall cause or permit open 

burning or the use of a special incineration device for the 

destruction of hazardous waste or containers for such 

materials. 

D. No owner or other person shall cause or permit open 

burning or the use of a special incineration device for the 

purpose of a salvage operation or for the destruction of 

commercial/industrial waste. 

E. Upon declaration of an alert, warning or emergency stage 

of an air pollution episode as described in 9VAC5 Chapter 70 
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(9VAC5-70) or when deemed advisable by the board to 

prevent a hazard to, or an unreasonable burden upon, public 

health or welfare, no owner or other person shall cause or 

permit open burning or use of a special incineration device; 

and any in-process burning or use of special incineration 

devices shall be immediately terminated in the designated air 

quality control region. 

9VAC5-40-5630. Permissible open burning. (Repealed.)

A. Open burning or the use of special incineration devices is 

permitted in the following instances provided the provisions 

of subsections B through E of 9VAC5-40-5620 are met: 

1. Upon the request of an owner or a responsible civil or 

military public official, the board may approve open burning 

or the use of special incineration devices under controlled 

conditions for the elimination of a hazard that constitutes a 

threat to the public health, safety or welfare and that cannot 

be remedied by other means consonant with the 

circumstances presented by the hazard. Such uses of open 

burning or the use of special incineration devices may 

include, but are not limited to, the following: 

a. Destruction of deteriorated or unused explosives and 

munitions on government or private property when other 

means of disposal are not available. Hazardous waste 

permits may be required under the provisions of 

9VAC20-60. 

b. Destruction of debris caused by floods, tornadoes, 

hurricanes or other natural disasters where alternate 

means of disposal are not economical or practical and 

when it is in the best interest of the citizens of the 

Commonwealth. Solid waste management permits may 

be required under the provisions of 9VAC20-80. 

c. On-site destruction of animal or plant life that is 

infested, or reasonably believed to be infested, by a pest 

or disease in order (i) to suppress, control, or eradicate an 

infestation or pest; (ii) to prevent or retard the spread of 

an infestation or pest; or (iii) to prevent further disease 

transmission or progression. 

2. Open burning is permitted for training and instruction of 

government and public fire fighters under the supervision of 

the designated official and industrial in-house fire fighting 

personnel with clearance from the local fire fighting 

authority. The designated official in charge of the training 

shall notify and obtain the approval of the regional director 

prior to conducting the training exercise. Training schools 

where permanent facilities are installed for fire fighting 

instruction are exempt from this notification requirement. 

Buildings that have not been demolished may be burned 

under the provisions of this subdivision only. 

3. Open burning or the use of special incineration devices is 

permitted for the destruction of classified military documents 

under the supervision of the designated official. 

4. Open burning is permitted for camp fires or other fires 

that are used solely for recreational purposes, for ceremonial 

occasions, for outdoor noncommercial preparation of food, 

and for warming of outdoor workers provided the materials 

specified in subsections B and C of 9VAC5-40-5620 are not 

burned. 

5. In urban areas, open burning is permitted for the on-site 

destruction of leaves and tree, yard and garden trimmings 

located on the premises of private property, provided that no 

regularly scheduled public or private collection service for 

such trimmings is available at the adjacent street or public 

road. In nonurban areas, open burning is permitted for the onsite destruction of leaves and tree, yard and garden trimmings 

located on the premises of private property regardless of the 

availability of collection service for such trimmings. 

6. Open burning is permitted for the on-site destruction of 

household waste by homeowners or tenants, provided that no 

regularly scheduled public or private collection service for 

such refuse is available at the adjacent street or public road. 

7. Open burning is permitted for the destruction of any 

combustible liquid or gaseous material by burning in a flare 

or flare stack. Use of a flare or flare stack for the destruction 

of hazardous waste or commercial/industrial waste is allowed 

provided written approval is obtained from the board and the 

facility is in compliance with Article 3 (9VAC5-40-160 et 

seq.) of this chapter and Article 3 (9VAC5-50-160 et seq.) of 

9VAC5 Chapter 50. Permits issued under 9VAC5 Chapter 80 

(9VAC5-80) may be used to satisfy the requirement for 

written approval. This activity must be consistent with the 

provisions of 9VAC20-60. 

8. Open burning or the use of special incineration devices is 

permitted on-site for the destruction of clean burning waste 

and debris waste resulting from property maintenance, from 

the development or modification of roads and highways, 

parking areas, railroad tracks, pipelines, power and 

communication lines, buildings or building areas, sanitary 

landfills, or from any other clearing operations. 

Open burning or the use of special incineration devices for 

the purpose of such destruction is prohibited in volatile 

organic compounds emissions control areas (see 9VAC5-20-

206) during May, June, July, August, and September. 

9. Open burning is permitted for forest management and 

agriculture practices approved by the board (see 9VAC5-40-

5631), provided the following conditions are met: 

a. The burning shall be at least 1000 feet from any 

occupied building unless the occupants have given prior 

permission, other than a building located on the property 

on which the burning is conducted. 

b. The burning shall be attended at all times. 

10. Open burning or the use of special incineration devices 

is permitted for the destruction of clean burning waste and 
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debris waste on the site of local landfills provided that the 

burning does not take place on land that has been filled and 

covered so as to present an underground fire hazard due to the 

presence of methane gas. Open burning or the use of special 

incineration devices for the purpose of such destruction is 

prohibited in volatile organic compounds emissions control 

areas (see 9VAC5-20-206) during May, June, July, August, 

and September. 

B. Open burning or the use of special incineration devices 

permitted under the provisions of this article does not exempt 

or excuse any owner or other person from the consequences, 

liability, damages or injuries that may result from such 

conduct; nor does it excuse or exempt any owner or other 

person from complying with other applicable laws, 

ordinances, regulations and orders of the governmental 

entities having jurisdiction, even though the open burning is 

conducted in compliance with this article. In this regard, 

special attention should be directed to § 10.1-1142 of the 

Code of Virginia, which is enforced by the Department of 

Forestry. 

C. With regard to the provisions of subsection B of this 

section, special attention should also be directed to the 

regulations of the Virginia Waste Management Board. No 

destruction of waste by open burning or transportation of 

waste to be destroyed by open burning shall take place in 

violation of the regulations of the Virginia Waste 

Management Board. 

9VAC5-40-5631. Forest management and agricultural 

practices. (Repealed.)

A. Open burning is permitted in accordance with 

subsections B and C of this section provided the provisions of 

subsections B through E of 9VAC5-40-5620 are met. 

B. Open burning may be used for the following forest 

management practices provided the burning is conducted in 

accordance with the Department of Forestry's smoke 

management plan: 

1. To reduce forest fuels and minimize the effect of wild 

fires. 

2. To control undesirable growth of hardwoods. 

3. To control disease in pine seedlings. 

4. To prepare forest land for planting or seeding. 

5. To create a favorable habitat for certain species. 

6. To remove dead vegetation for the maintenance of 

railroad, highway and public utility right-of-way. 

C. In the absence of other means of disposal, open burning 

may be used for the following agricultural practices: 

1. To destroy undesirable or diseased vegetation. 

2. To clear orchards and orchard prunings. 

3. To destroy empty fertilizer and chemical containers. 

4. To denature seed and grain that may no longer be suitable 

for agricultural purposes. 

5. To prevent loss from frost or freeze damage. 

6. To create a favorable habitat for certain species. 

7. To destroy strings and plastic ground cover remaining in 

the field after being used in growing staked tomatoes. 

9VAC5-40-5641. Local ordinances on open burning.

(Repealed.)

A. General. 

1. If the governing body of any locality wishes to adopt an 

ordinance relating to air pollution and governing open 

burning within its jurisdiction, the ordinance must first be 

approved by the board (see § 10.1-1321 B of the Code of 

Virginia). 

2. In order to assist local governments in the development of 

ordinances acceptable to the board, the ordinance in 

subsection C of this section is offered as a model. 

3. If a local government wishes to adopt the language of the 

model ordinance without changing any wording except that 

enclosed by parentheses, that government's ordinance shall be 

deemed to be approved by the board on the date of local 

adoption provided that a copy of the ordinance is filed with 

the department upon its adoption by the local government. 

4. If a local government wishes to change any wording of 

the model ordinance aside from that enclosed by parentheses 

in order to construct a local ordinance, that government shall 

request the approval of the board prior to adoption of the 

ordinance by the local jurisdiction. A copy of the ordinance 

shall be filed with the department upon its adoption by the 

local government. 

5. Local ordinances that have been approved by the board 

prior to April 1, 1996, remain in full force and effect as 

specified by their promulgating authorities. 

B. Establishment and approval of local ordinances varying 

from the model. 

1. Any local governing body proposing to adopt or amend 

an ordinance relating to open burning that differs from the 

model local ordinance in subsection C of this section shall 

first obtain the approval of the board for the ordinance or 

amendment as specified in subdivision A 4 of this section. 

The board in approving local ordinances will consider, but 

will not be limited to, the following criteria: 

a. The local ordinance shall provide for 

intergovernmental cooperation and exchange of 

information. 

b. Adequate local resources will be committed to 

enforcing the proposed local ordinance. 
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c. The provisions of the local ordinance shall be as strict 

as state regulations, except as provided for leaf burning 

in § 10.1-1308 of the Virginia Air Pollution Control Law. 

d. If a waiver from any provision of Article 40 (9VAC5-

40-5600 et seq.) of 9VAC5 Chapter 40 has been 

requested under 9VAC5-40-5645, the language of the 

ordinance shall achieve the objective of the provision 

from which the waiver is requested. 

2. Approval of any local ordinance may be withdrawn if the 

board determines that the local ordinance is less strict than 

state regulations or if the locality fails to enforce the 

ordinance. 

3. If a local ordinance must be amended to conform to an 

amendment to state regulations, such local amendment will be 

made within six months of the effective date of the amended 

state regulations. 

4. Local ordinances are a supplement to state regulations. 

Any provisions of local ordinances that have been approved 

by the board and are more strict than state regulations shall 

take precedence over state regulations within the respective 

locality. If a locality fails to enforce its own ordinance, the 

board reserves the right to enforce state regulations. 

5. A local governing body may grant a variance to any 

provision of its air pollution control ordinance(s) provided 

that: 

a. A public hearing is held prior to granting the variance; 

b. The public is notified of the application for a variance 

by notice in at least one major newspaper of general 

circulation in the affected locality at least 30 days prior to 

the date of the hearing; and 

c. The variance does not permit any owner or other 

person to take action that would result in a violation of 

any provision of state regulations unless a variance is 

granted by the board. The public hearings required for 

the variances to the local ordinance and state regulations 

may be conducted jointly as one proceeding. 

6. 0 9VAC5-170-150 shall not apply to local ordinances 

concerned solely with open burning. 

C. Model Ordinance. 

ORDINANCE NO. (000) 

Section (000-1). Title. This article shall be known as the 

(local jurisdiction) Ordinance for the Regulation of Open 

Burning. 

Section (000-2). Purpose. The purpose of this article is to 

protect public health, safety, and welfare by regulating open 

burning within (local jurisdiction) to achieve and maintain, to 

the greatest extent practicable, a level of air quality that will 

provide comfort and convenience while promoting economic 

and social development. This article is intended to 

supplement the applicable regulations promulgated by the 

State Air Pollution Control Board and other applicable 

regulations and laws. 

Section (000-3). Definitions. For the purpose of this article 

and subsequent amendments or any orders issued by (local 

jurisdiction), the words or phrases shall have the meaning 

given them in this section. 

A. "Automobile graveyard" means any lot or place that is 

exposed to the weather and upon which more than five motor 

vehicles of any kind, incapable of being operated, and that it 

would not be economically practical to make operative, are 

placed, located or found. 

B. "Built-up area" means any area with a substantial portion

covered by industrial, commercial or residential buildings. 

C. "Clean burning waste" means waste that is not prohibited 

to be burned under this ordinance and that consists only of (i) 

100% wood waste, (ii) 100% clean lumber or clean wood, 

(iii) 100% yard waste, or (iv) 100% mixture of only any 

combination of wood waste, clean lumber, clean wood or 

yard waste. 

D. "Clean lumber" means wood or wood products that have 

been cut or shaped and include wet, air-dried, and kiln-dried 

wood products. Clean lumber does not include wood products 

that have been painted, pigment-stained, or pressure-treated 

by compounds such as chromate copper arsenate, 

pentachlorophenol, and creosote. 

E. "Clean wood" means uncontaminated natural or untreated 

wood. Clean wood includes, but is not limited to, byproducts 

of harvesting activities conducted for forest management or 

commercial logging, or mill residues consisting of bark, 

chips, edgings, sawdust, shavings or slabs. It does not include 

wood that has been treated, adulterated, or chemically 

changed in some way; treated with glues, binders or resins; or 

painted, stained or coated. 

F. "Construction waste" means solid waste that is produced 

or generated during construction, remodeling, or repair of 

pavements, houses, commercial buildings and other 

structures. Construction waste consists of lumber, wire, 

sheetrock, broken brick, shingles, glass, pipes, concrete, and 

metal and plastics if the metal or plastics are a part of the 

materials of construction or empty containers for such 

materials. Paints, coatings, solvents, asbestos, any liquid, 

compressed gases or semi-liquids, and garbage are not 

construction wastes and the disposal of such materials must 

be in accordance with the regulations of the Virginia Waste 

Management Board. 

G. "Debris waste" means wastes resulting from landclearing operations. Debris wastes include but are not limited 

to stumps, wood, brush, leaves, soil and road spoils. 

H. "Demolition waste" means that solid waste that is 

produced by the destruction of structures or their foundations, 
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or both, and includes the same materials as construction 

waste. 

I. "Garbage" means readily putrescible discarded materials 

composed of animal, vegetable or other organic matter. 

J. "Hazardous waste" means a "hazardous waste" as 

described in 9VAC20-60, Hazardous Waste Management 

Regulations. 

K. "Household waste" means any waste material, including 

garbage, trash and refuse derived from households. For 

purposes of this regulation, households include single and 

multiple residences, hotels and motels, bunkhouses, ranger 

stations, crew quarters, campgrounds, picnic grounds and 

day-use recreation areas. Household wastes do not include 

sanitary waste in septic tanks (septage) that is regulated by 

state agencies. 

L. "Industrial waste" means any solid waste generated by 

manufacturing or industrial process that is not a regulated 

hazardous waste. Such waste may include but is not limited to 

waste resulting from the following manufacturing processes: 

electric power generation; fertilizer/agricultural chemicals; 

food and related products/by products; inorganic chemicals; 

iron and steel manufacturing; leather and leather products; 

nonferrous metals manufacturing/foundries; organic 

chemicals; plastics and resins manufacturing; pulp and paper 

industry; rubber and miscellaneous plastic products; stone, 

glass, clay and concrete products; textile manufacturing; 

transportation equipment; and water treatment. This term 

does not include mining waste or oil and gas waste. 

M. "Junkyard" means an establishment or place of business 

that is maintained, operated, or used for storing, keeping, 

buying, or selling junk, or for the maintenance or operation of 

an automobile graveyard, and the term shall include garbage 

dumps and sanitary landfills. 

N. "Landfill" means a sanitary landfill, an industrial waste 

landfill, or a construction/demolition/debris landfill. See Solid 

Waste Management Regulations (9VAC20-80) for further 

definitions of these terms. 

O. "Local landfill" means any landfill located within the 

jurisdiction of a local government. 

P. "Open burning" means the combustion of solid waste 

without: 

1. Control of combustion air to maintain adequate 

temperature for efficient combustion; 

2. Containment of the combustion reaction in an enclosed 

device to provide sufficient residence time and mixing for 

complete combustion; and 

3. Control of the combustion products' emission. 

Q. "Open pit incinerator" means a device used to burn waste 

for the primary purpose of reducing the volume by removing 

combustible matter. Such devices function by directing a 

curtain of air at an angle across the top of a trench or similarly 

enclosed space, thus reducing the amount of combustion 

byproducts emitted into the atmosphere. The term also 

includes trench burners, air curtain incinerators and over draft 

incinerators. 

R. "Refuse" means all solid waste products having the 

characteristics of solids rather than liquids and that are 

composed wholly or partially of materials such as garbage, 

trash, rubbish, litter, residues from clean-up of spills or 

contamination or other discarded materials. 

S. "Salvage operation" means any operation consisting of a 

business, trade or industry participating in salvaging or 

reclaiming any product or material, such as, but not limited 

to, reprocessing of used motor oils, metals, chemicals, 

shipping containers or drums, and specifically including 

automobile graveyards and junkyards. 

T. "Sanitary landfill" means an engineered land burial 

facility for the disposal of household waste that is so located, 

designed, constructed, and operated to contain and isolate the 

waste so that it does not pose a substantial present or potential 

hazard to human health or the environment. A sanitary 

landfill also may receive other types of solid wastes, such as 

commercial solid waste, nonhazardous sludge, hazardous 

waste from conditionally exempt small quantity generators, 

construction, demolition, or debris waste and nonhazardous 

industrial solid waste. See Solid Waste Management 

Regulations (9VAC20-80) for further definitions of these 

terms. 

U. "Smoke" means small gas-borne particulate matter 

consisting mostly, but not exclusively, of carbon, ash and 

other material in concentrations sufficient to form a visible 

plume. 

V. "Special incineration device" means an open pit 

incinerator, conical or teepee burner, or any other device 

specifically designed to provide good combustion 

performance. 

W. "Wood waste" means untreated wood and untreated 

wood products, including tree stumps (whole or chipped), 

trees, tree limbs (whole or chipped), bark, sawdust, chips, 

scraps, slabs, millings, and shavings. Wood waste does not 

include: 

1. Grass, grass clippings, bushes, shrubs, and clippings from 

bushes and shrubs from residential, commercial/retail, 

institutional, or industrial sources as part of maintaining yards 

or other private or public lands. 

2. Construction, renovation, or demolition wastes. 

3. Clean lumber. 

X. "Yard waste" means grass, grass clippings, bushes, 

shrubs, and clippings from bushes and shrubs that come from 
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residential, commercial/retail, institutional, or industrial 

sources as part of maintaining yards or other private or public 

lands. Yard waste does not include (i) construction, 

renovation, and demolition wastes or (ii) clean wood. 

Section (000-4). Prohibitions on open burning. 

A. No owner or other person shall cause or permit open 

burning or the use of a special incineration device for the 

destruction of refuse except as provided in this ordinance. 

B. No owner or other person shall cause or permit open 

burning or the use of a special incineration device for the 

destruction of rubber tires, asphaltic materials, crankcase oil, 

impregnated wood or other rubber or petroleum based 

materials except when conducting bona fide fire fighting 

instruction at fire fighting training schools having permanent 

facilities. 

C. No owner or other person shall cause or permit open 

burning or the use of a special incineration device for the 

destruction of hazardous waste or containers for such 

materials. 

D. No owner or other person shall cause or permit open 

burning or the use of a special incineration device for the 

purpose of a salvage operation or for the destruction of 

commercial/industrial waste. 

E. Open burning or the use of special incineration devices 

permitted under the provisions of this ordinance does not 

exempt or excuse any owner or other person from the 

consequences, liability, damages or injuries that may result 

from such conduct; nor does it excuse or exempt any owner 

or other person from complying with other applicable laws, 

ordinances, regulations and orders of the governmental 

entities having jurisdiction, even though the open burning is 

conducted in compliance with this ordinance. In this regard 

special attention should be directed to § 10.1-1142 of the 

Code of Virginia, the regulations of the Virginia Waste 

Management Board, and the State Air Pollution Control 

Board's Regulations for the Control and Abatement of Air 

Pollution. 

F. Upon declaration of an alert, warning or emergency stage 

of an air pollution episode as described in 9VAC5 Chapter 70 

(9VAC5-70) or when deemed advisable by the State Air 

Pollution Control Board to prevent a hazard to, or an 

unreasonable burden upon, public health or welfare, no owner 

or other person shall cause or permit open burning or use of a 

special incineration device; and any in process burning or use 

of special incineration devices shall be immediately 

terminated in the designated air quality control region. 

Section (000-5). Exemptions. The following activities are 

exempted to the extent covered by the State Air Pollution 

Control Board's Regulations for the Control and Abatement 

of Air Pollution: 

A. Open burning for training and instruction of government 

and public fire fighters under the supervision of the 

designated official and industrial in-house fire fighting 

personnel; 

B. Open burning for camp fires or other fires that are used 

solely for recreational purposes, for ceremonial occasions, for 

outdoor noncommercial preparation of food, and for warming 

of outdoor workers; 

C. Open burning for the destruction of any combustible 

liquid or gaseous material by burning in a flare or flare stack; 

D. Open burning for forest management and agriculture 

practices approved by the State Air Pollution Control Board; 

and 

E. Open burning for the destruction of classified military 

documents. 

Section (000-6). Permissible open burning. 

A. Open burning is permitted on-site for the destruction of 

leaves and tree, yard and garden trimmings located on the 

premises of private property, provided that the conditions are 

met: 

1. The burning takes place on the premises of the private 

property; (and) 

2. The location of the burning is not less than 300 feet from 

any occupied building unless the occupants have given prior 

permission, other than a building located on the property on 

which the burning is conducted; (and 

3. No regularly scheduled public or private collection 

service for such trimmings is available at the adjacent street 

or public road1. 

B. Open burning is permitted on-site for the destruction of 

household waste by homeowners or tenants, provided that the 

following conditions are met: 

1. The burning takes place on the premises of the dwelling; 

2. Animal carcasses or animal wastes are not burned; 

3. Garbage is not burned; (and) 

4. The location of the burning is not less than 300 feet from 

any occupied building unless the occupants have given prior 

permission, other than a building located on the property on 

which the burning is conducted; (and 

5. No regularly scheduled public or private collection 

service for such refuse is available at the adjacent street or 

public road2. 

C. Open burning is permitted on-site for destruction of 

debris waste resulting from property maintenance, from the 

development or modification of roads and highways, parking 

areas, railroad tracks, pipelines, power and communication 

lines, buildings or building areas, sanitary landfills, or from 
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any other clearing operations that may be approved by 

(designated local official), provided the following conditions 

are met: 

1. All reasonable effort shall be made to minimize the 

amount of material burned, with the number and size of the 

debris piles approved by (designated local official); 

2. The material to be burned shall consist of brush, stumps 

and similar debris waste and shall not include demolition 

material; 

3. The burning shall be at least 500 feet from any occupied 

building unless the occupants have given prior permission, 

other than a building located on the property on which the 

burning is conducted; 

4. The burning shall be conducted at the greatest distance 

practicable from highways and air fields, 

5. The burning shall be attended at all times and conducted 

to ensure the best possible combustion with a minimum of 

smoke being produced; 

6. The burning shall not be allowed to smolder beyond the 

minimum period of time necessary for the destruction of the 

materials; and 

7. The burning shall be conducted only when the prevailing 

winds are away from any city, town or built-up area. 

D. Open burning is permitted for destruction of debris on the 

site of local landfills provided that the burning does not take 

place on land that has been filled and covered so as to present 

an underground fire hazard due to the presence of methane 

gas provided that the following conditions are met: 

1. The burning shall take place on the premises of a local 

sanitary landfill that meets the provisions of the regulations of 

the Virginia Waste Management Board, 

2. The burning shall be attended at all times; 

3. The material to be burned shall consist only of brush, tree 

trimmings, yard and garden trimmings, clean burning waste, 

clean burning debris waste, or clean burning demolition 

waste; 

4. All reasonable effort shall be made to minimize the 

amount of material that is burned; 

5. No materials may be burned in violation of the 

regulations of the Virginia Waste Management Board or the 

State Air Pollution Control Board. The exact site of the 

burning on a local landfill shall be established in coordination 

with the regional director and (designated local official); no 

other site shall be used without the approval of these officials. 

(Designated local official) shall be notified of the days during 

which the burning will occur. 

(E. Sections 000-6 A through D notwithstanding, no owner 

or other person shall cause or permit open burning or the use 

of a special incineration device during May, June, July, 

August, or September.3) 

Section (000-7). Permits. 

A. When open burning of debris waste (Section 000-6 C) or 

open burning of debris on the site of a local landfill (Section 

000-6 D) is to occur within (local jurisdiction), the person 

responsible for the burning shall obtain a permit from 

(designated local official) prior to the burning. Such a permit 

may be granted only after confirmation by (designated local 

official) that the burning can and will comply with the 

provisions of this ordinance and any other conditions that are 

deemed necessary to ensure that the burning will not 

endanger the public health and welfare or to ensure 

compliance with any applicable provisions of the State Air 

Pollution Control Board's Regulations for the Control and 

Abatement of Air Pollution. The permit may be issued for 

each occasion of burning or for a specific period of time 

deemed appropriate by (designated local official). 

B. Prior to the initial installation (or reinstallation, in cases 

of relocation) and operation of special incineration devices, 

the person responsible for the burning shall obtain a permit 

from (designated local official), such permits to be granted 

only after confirmation by (designated local official) that the 

burning can and will comply with the applicable provisions in 

Regulations for the Control and Abatement of Air Pollution 

and that any conditions are met that are deemed necessary by 

(designated local official) to ensure that the operation of the 

devices will not endanger the public health and welfare. 

Permits granted for the use of special incineration devices 

shall at a minimum contain the following conditions: 

1. All reasonable effort shall be made to minimize the 

amount of material that is burned. Such efforts shall include, 

but are not limited to, the removal of pulpwood, sawlogs and 

firewood. 

2. The material to be burned shall consist of brush, stumps 

and similar debris waste and shall not include demolition 

material. 

3. The burning shall be at least 300 feet from any occupied 

building unless the occupants have given prior permission, 

other than a building located on the property on which the 

burning is conducted; burning shall be conducted at the 

greatest distance practicable from highways and air fields. If 

(designated local official) determines that it is necessary to 

protect public health and welfare, he may direct that any of 

the above cited distances be increased. 

4. The burning shall be attended at all times and conducted 

to ensure the best possible combustion with a minimum of 

smoke being produced. Under no circumstances should the 

burning be allowed to smolder beyond the minimum period 

of time necessary for the destruction of the materials. 
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5. The burning shall be conducted only when the prevailing 

winds are away from any city, town or built-up area. 

6. The use of special incineration devices shall be allowed 

only for the destruction of debris waste, clean burning 

construction waste, and clean burning demolition waste. 

(C. An application for a permit under Section 000-7 A or 

000-7 B shall be accompanied by a processing fee of $—--.

4

) 

Section (000-8). Penalties for violation. 

A. Any violation of this ordinance is punishable as a Class 1 

misdemeanor. (See § 15.2-1429 of the Code of Virginia.) 

B. Each separate incident may be considered a new 

violation. 

1

This provision shall be included in ordinances for urban 

areas. It may be included in ordinances for non-urban areas. 

2

This provision shall be included in ordinances for urban 

areas. It may be included in ordinances for non-urban areas. 

3

This provision shall be included in ordinances for 

jurisdictions within volatile organic compound emissions 

control areas. It may be included in ordinances for 

jurisdictions outside these areas. 

4

The fee stipulation in this section is optional at the discretion 

of the jurisdiction. 

9VAC5-40-5645. Waivers. (Repealed.)

A. A waiver from any provision of this article may be 

granted by the board for any person or geographic area 

provided that satisfactory demonstration is made that another 

state or local government entity has in effect statutory 

provisions or other enforceable mechanisms that will achieve 

the objective of the provision from which the waiver is 

granted. 

B. Demonstrations made pursuant to subsection A of this 

section should, at a minimum, meet the following criteria: 

1. The demonstration should show that the statutory 

provisions or other enforceable mechanisms essentially 

provide the same effect as the provision from which the 

waiver is granted. 

2. That the governmental entity has the legal authority to 

enforce the statutory provisions or enforceable mechanisms. 

C. Waivers under subsection A of this section shall be 

executed through a memorandum of understanding between 

the board and affected governmental entity and may include 

such terms and conditions as may be necessary to ensure that 

the objectives of this article are met by the waiver. 

D. A waiver from any applicable provision of this article 

may be granted by the board for any locality which has 

lawfully adopted an ordinance in accordance with 9VAC5-

40-5641. 

CHAPTER 130 

[Reserved] REGULATION FOR OPEN BURNING

Part I

General Provisions

9VAC5-130-10. Applicability.

A. Except as provided in subsections C and D of this 

section, the provisions of this chapter apply to any person 

who permits or engages in open burning or who permits or 

engages in burning using special incineration devices.

B. The provisions of this chapter apply throughout the 

Commonwealth of Virginia.

C. The provisions of this chapter do not apply to such an 

extent as to prohibit the burning of leaves by persons on 

property where they reside if the local governing body of the 

county, city or town in which such persons reside has enacted 

an otherwise valid ordinance (under the provisions of § 10.1-

1308 of the Virginia Air Pollution Control Law) regulating 

such burning in all or any part of the locality.

D. The provisions of this chapter do not apply to air curtain 

incinerators subject to the provisions of (i) Article 45 

(9VAC5-40-6250 et seq.), Article 46 (9VAC5-40-6550 et 

seq.), or Article 54 (9VAC5-40-7950 et seq.) of 9VAC5-40 

(Existing Stationary Sources) or (ii) Subparts Eb, AAAA or 

CCCC of 40 CFR Part 60.

9VAC5-130-20. Definitions.

A. For the purpose of these regulations and subsequent 

amendments or any orders issued by the board, the words or 

terms shall have the meanings given them in subsection C of 

this section.

B. As used in this chapter, all terms not defined here shall 

have the meaning given them in 9VAC5-10 (General 

Definitions), unless otherwise required by context.

C. Terms defined:

"Air curtain incinerator" means an incinerator that operates 

by forcefully projecting a curtain of air across an open 

chamber or pit in which combustion occurs. Incinerators of 

this type can be constructed above or below ground and with 

or without refractory walls and floor. Air curtain incinerators 

are not to be confused with conventional combustion devices 

with enclosed fireboxes and controlled air technology such as 

mass burn, modular, and fluidized bed combustors.

"Automobile graveyard" means any lot or place that is 

exposed to the weather and upon which more than five motor 

vehicles of any kind, incapable of being operated, and that it 

would not be economically practical to make operative, are 

placed, located or found.

"Built-up area" means any area with a substantial portion 

covered by industrial, commercial or residential buildings.
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"Clean burning waste" means waste that is not prohibited to 

be burned under this chapter and that consists only of (i) 

100% wood waste, (ii) 100% clean lumber or clean wood, 

(iii) 100% yard waste, or (iv) 100% mixture of only any 

combination of wood waste, clean lumber, clean wood or 

yard waste.

"Clean lumber" means wood or wood products that have 

been cut or shaped and include wet, air-dried, and kiln-dried 

wood products. Clean lumber does not include wood products 

that have been painted, pigment-stained, or pressure-treated 

by compounds such as chromate copper arsenate, 

pentachlorophenol, and creosote.

"Clean wood" means uncontaminated natural or untreated 

wood. Clean wood includes, but is not limited to, byproducts 

of harvesting activities conducted for forest management or 

commercial logging, or mill residues consisting of bark, 

chips, edgings, sawdust, shavings or slabs. It does not include 

wood that has been treated, adulterated, or chemically 

changed in some way; treated with glues, binders or resins; or 

painted, stained or coated.

"Commercial waste" means all solid waste generated by 

establishments engaged in business operations other than 

manufacturing or construction. This category includes, but is 

not limited to, waste resulting from the operation of stores, 

markets, office buildings, restaurants and shopping centers.

"Construction waste" means solid waste that is produced or 

generated during construction, remodeling, or repair of 

pavements, houses, commercial buildings and other 

structures. Construction waste consists of lumber, wire, 

sheetrock, broken brick, shingles, glass, pipes, concrete, and 

metal and plastics if the metal or plastics are a part of the 

materials of construction or empty containers for such 

materials. Paints, coatings, solvents, asbestos, any liquid, 

compressed gases or semi-liquids, and garbage are not 

construction wastes and the disposal of such materials shall 

be in accordance with the regulations of the Virginia Waste 

Management Board.

"Debris waste" means wastes resulting from land clearing 

operations. Debris wastes include but are not limited to 

stumps, wood, brush, leaves, soil and road spoils.

"Demolition waste" means that solid waste that is produced 

by the destruction of structures, or their foundations, or both, 

and includes the same materials as construction waste.

"Garbage" means readily putrescible discarded materials 

composed of animal, vegetable or other organic matter.

"Hazardous waste" means a “hazardous waste” as described 

in 9VAC20-60 (Hazardous Waste Management Regulations).

"Household waste" means any waste material, including 

garbage, trash and refuse derived from households. For 

purposes of this regulation, households include single and 

multiple residences, hotels and motels, bunkhouses, ranger 

stations, crew quarters, campgrounds, picnic grounds and 

day-use recreation areas. Household wastes do not include 

sanitary waste in septic tanks (septage) that is regulated by 

other state agencies.

"Industrial waste" means any solid waste generated by 

manufacturing or industrial process that is not a regulated 

hazardous waste. Such waste may include but is not limited to 

waste resulting from the following manufacturing processes: 

electric power generation; fertilizer/agricultural chemicals; 

food and related products/byproducts; inorganic chemicals; 

iron and steel manufacturing; leather and leather products; 

nonferrous metals manufacturing/foundries; organic 

chemicals; plastics and resins manufacturing; pulp and paper 

industry; rubber and miscellaneous plastic products; stone, 

glass, clay and concrete products; textile manufacturing; 

transportation equipment; and water treatment. This term 

does not include mining waste or oil and gas waste.

"Junk" means old or scrap copper, brass, rope, rags, 

batteries, paper, trash, rubber, debris, waste, or junked, 

dismantled, or wrecked automobiles, or parts thereof, iron, 

steel, and other old or scrap ferrous or nonferrous material.

"Junkyard" means an establishment or place of business that 

is maintained, operated, or used for storing, keeping, buying, 

or selling junk, or for the maintenance or operation of an 

automobile graveyard, and the term shall include garbage 

dumps and sanitary landfills.

"Landfill" means a sanitary landfill, an industrial waste 

landfill, or a construction/demolition/debris landfill. See Part 

I (9VAC20-80-10 et seq.) of 9VAC20-80 (Solid Waste 

Management Regulations) for further definitions of these 

terms.

"Local landfill" means any landfill located within the 

jurisdiction of a local government.

"Open burning" means the combustion of solid waste 

without:

1. Control of combustion air to maintain adequate 

temperature for efficient combustion;

2. Containment of the combustion reaction in an enclosed 

device to provide sufficient residence time and mixing for 

complete combustion; and

3. Control of the combustion products' emission.

"Open pit incinerator" means a device used to burn waste for 

the primary purpose of reducing the volume by removing 

combustible matter. Such devices function by directing a 

curtain of air at an angle across the top of a trench or similarly 

enclosed space, thus reducing the amount of combustion 

byproducts emitted into the atmosphere. The term also 

includes trench burners, air curtain incinerators and over draft 

incinerators.
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"Refuse" means all solid waste products having the 

characteristics of solids rather than liquids and that are 

composed wholly or partially of materials such as garbage, 

trash, rubbish, litter, residues from clean up of spills or 

contamination or other discarded materials.

"Salvage operation" means any operation consisting of a 

business, trade or industry participating in salvaging or 

reclaiming any product or material, such as, but not limited 

to, reprocessing of used motor oils, metals, chemicals, 

shipping containers or drums, and specifically including 

automobile graveyards and junkyards.

"Sanitary landfill" means an engineered land burial facility 

for the disposal of household waste that is so located, 

designed, constructed, and operated to contain and isolate the 

waste so that it does not pose a substantial present or potential 

hazard to human health or the environment. A sanitary 

landfill also may receive other types of solid wastes, such as 

commercial solid waste, nonhazardous sludge, hazardous 

waste from conditionally exempt small quantity generators, 

construction, demolition, or debris waste and nonhazardous 

industrial solid waste. See Part I (9VAC20-80-10 et seq.) of 

9VAC20-80 (Solid Waste Management Regulations) for 

further definitions of these terms.

"Smoke" means small gas-borne particulate matter 

consisting mostly, but not exclusively, of carbon, ash and 

other material in concentrations sufficient to form a visible 

plume.

"Special incineration device" means an open pit incinerator, 

conical or teepee burner, or any other device specifically 

designed to provide good combustion performance.

"Wood waste" means untreated wood and untreated wood 

products, including tree stumps (whole or chipped), trees, tree 

limbs (whole or chipped), bark, sawdust, chips, scraps, slabs, 

millings, and shavings. Wood waste does not include:

1. Grass, grass clippings, bushes, shrubs, and clippings 

from bushes and shrubs from residential, 

commercial/retail, institutional, or industrial sources as part 

of maintaining yards or other private or public lands.

2. Construction, renovation, or demolition wastes.

3. Clean lumber.

"Yard waste" means grass, grass clippings, bushes, shrubs, 

and clippings from bushes and shrubs that come from 

residential, commercial/retail, institutional, or industrial 

sources as part of maintaining yards or other private or public 

lands. Yard waste does not include (i) construction, 

renovation, and demolition wastes or (ii) clean wood.

9VAC5-130-30. Open burning prohibitions.

A. No owner or other person shall cause or permit open 

burning of refuse or use of special incineration devices except 

as provided in 9VAC5-130-40.

B. No owner or other person shall cause or permit open 

burning or the use of a special incineration device for the 

destruction of rubber tires, asphaltic materials, crankcase oil, 

impregnated wood or other rubber or petroleum based 

materials except when conducting bona fide fire fighting 

instruction at fire fighting training schools having permanent 

facilities.

C. No owner or other person shall cause or permit open 

burning or the use of a special incineration device for the 

destruction of hazardous waste or containers for such 

materials.

D. No owner or other person shall cause or permit open 

burning or the use of a special incineration device for the 

purpose of a salvage operation or for the destruction of 

commercial/industrial waste.

E. Upon declaration of an alert, warning or emergency stage 

of an air pollution episode as described in 9VAC5-70 (Air 

Pollution Episode Prevention) or when deemed advisable by 

the board to prevent a hazard to, or an unreasonable burden 

upon, public health or welfare, no owner or other person shall 

cause or permit open burning or use of a special incineration 

device; and any in-process burning or use of special 

incineration devices shall be immediately terminated in the 

designated air quality control region.

9VAC5-130-40. Permissible open burning.

A. Open burning or the use of special incineration devices is 

permitted in the following instances provided the provisions 

of subsections B through E of 9VAC5-130-30 are met:

1. Upon the request of an owner or a responsible civil or 

military public official, the board may approve open 

burning or the use of special incineration devices under 

controlled conditions for the elimination of a hazard that 

constitutes a threat to the public health, safety or welfare 

and that cannot be remedied by other means consonant 

with the circumstances presented by the hazard. Such uses 

of open burning or the use of special incineration devices 

may include, but are not limited to, the following:

a. Destruction of deteriorated or unused explosives and 

munitions on government or private property when other 

means of disposal are not available. Hazardous waste 

permits may be required under the provisions of 

9VAC20-60 (Hazardous Waste Management 

Regulations).

b. Destruction of debris caused by floods, tornadoes, 

hurricanes or other natural disasters where alternate 

means of disposal are not economical or practical and 

when it is in the best interest of the citizens of the 

Commonwealth. Solid waste management permits may 

be required under the provisions of 9VAC20-80 (Solid 

Waste Management Regulations).
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c. On-site destruction of animal or plant life that is 

infested, or reasonably believed to be infested, by a pest 

or disease in order to (i) suppress, control, or eradicate an 

infestation or pest; (ii) prevent or retard the spread of an 

infestation or pest; or (iii) prevent further disease 

transmission or progression.

2. Open burning is permitted for training and instruction of 

government and public firefighters under the supervision 

of the designated official and industrial in-house 

firefighting personnel with clearance from the local 

firefighting authority. The designated official in charge of 

the training shall notify and obtain the approval of the 

regional director prior to conducting the training exercise. 

Training schools where permanent facilities are installed 

for firefighting instruction are exempt from this 

notification requirement. Buildings that have not been 

demolished may be burned under the provisions of this

subdivision only.

3. Open burning or the use of special incineration devices 

is permitted for the destruction of classified military 

documents under the supervision of the designated official.

4. Open burning is permitted for camp fires or other fires 

that are used solely for recreational purposes, for 

ceremonial occasions, for outdoor noncommercial 

preparation of food, and for warming of outdoor workers 

provided the materials specified in subsections B and C of 

9VAC5-130-30 are not burned.

5. In urban areas, open burning is permitted for the on-site 

destruction of leaves and tree, yard and garden trimmings 

located on the premises of private property, provided that 

no regularly scheduled public or private collection service 

for such trimmings is available at the adjacent street or 

public road. In nonurban areas, open burning is permitted 

for the on-site destruction of leaves and tree, yard and 

garden trimmings located on the premises of private 

property regardless of the availability of collection service 

for such trimmings.

6. Open burning is permitted for the on-site destruction of 

household waste by homeowners or tenants, provided that 

no regularly scheduled public or private collection service 

for such refuse is available at the adjacent street or public 

road.

7. Open burning is permitted for the destruction of any 

combustible liquid or gaseous material by burning in a 

flare or flare stack. Use of a flare or flare stack for the 

destruction of hazardous waste or commercial/industrial 

waste is allowed provided written approval is obtained 

from the board and the facility is in compliance with 

Article 3 (9VAC5-40-160 et seq.) of 9VAC5-40 (Existing 

Stationary Sources) and Article 3 (9VAC5-50-160 et seq.) 

of 9VAC5-50 (New and Modified Stationary Sources). 

Permits issued under 9VAC5-80 (Permits for Stationary 

Sources) may be used to satisfy the requirement for written 

approval. This activity must be consistent with the 

provisions of 9VAC20-60 (Virginia Hazardous Waste 

Regulations).

8. Open burning or the use of special incineration devices 

is permitted on site for the destruction of clean burning 

waste and debris waste resulting from property 

maintenance, from the development or modification of 

roads and highways, parking areas, railroad tracks, 

pipelines, power and communication lines, buildings or 

building areas, sanitary landfills, or from any other clearing 

operations. Open burning or the use of special incineration 

devices for the purpose of such destruction is prohibited in 

volatile organic compounds emissions control areas (see 

9VAC5-20-206) during May, June, July, August, and 

September.

9. Open burning is permitted for forest management and 

agriculture practices approved by the board (see 9VAC5-

130-50), provided the following conditions are met:

a. The burning shall be at least 1,000 feet from any 

occupied building unless the occupants have given prior 

permission, other than a building located on the property 

on which the burning is conducted; and

b. The burning shall be attended at all times.

10. Open burning or the use of special incineration devices 

is permitted for the destruction of clean burning waste and 

debris waste on the site of local landfills provided that the 

burning does not take place on land that has been filled and 

covered so as to present an underground fire hazard due to 

the presence of methane gas. Open burning or the use of 

special incineration devices for the purpose of such 

destruction is prohibited in volatile organic compounds 

emissions control areas (see 9VAC5-20-206) during May, 

June, July, August, and September.

B. Open burning or the use of special incineration devices 

permitted under the provisions of this chapter does not 

exempt or excuse any owner or other person from the 

consequences, liability, damages or injuries that may result 

from such conduct; nor does it excuse or exempt any owner 

or other person from complying with other applicable laws, 

ordinances, regulations and orders of the governmental 

entities having jurisdiction, even though the open burning is 

conducted in compliance with this chapter. In this regard 

special attention should be directed to § 10.1-1142 of the 

Code of Virginia, which is enforced by the Department of 

Forestry.

C. With regard to the provisions of subsection B of this 

section, special attention should also be directed to the 

regulations of the Virginia Waste Management Board. No 

destruction of waste by open burning or transportation of 

waste to be destroyed by open burning shall take place in 
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violation of the regulations of the Virginia Waste 

Management Board.

9VAC5-130-50. Forest management and agricultural 

practices.

A. Open burning is permitted in accordance with 

subsections B and C of this section provided the provisions of 

subsections B through E of 9VAC5-130-30 are met.

B. Open burning may be used for the following forest 

management practices provided the burning is conducted in 

accordance with the Department of Forestry's smoke 

management plan to:

1. Reduce forest fuels and minimize the effect of wild fires.

2. Control undesirable growth of hardwoods.

3. Control disease in pine seedlings.

4. Prepare forest land for planting or seeding.

5. Create a favorable habitat for certain species.

6. Remove dead vegetation for the maintenance of railroad, 

highway and public utility right-of-way.

C. In the absence of other means of disposal, open burning 

may be used for the following agricultural practices to:

1. Destroy undesirable or diseased vegetation.

2. Clear orchards and orchard prunings.

3. Destroy empty fertilizer and chemical containers.

4. Denature seed and grain that may no longer be suitable 

for agricultural purposes.

5. Prevent loss from frost or freeze damage.

6. Create a favorable habitat for certain species.

7. Destroy strings and plastic ground cover remaining in 

the field after being used in growing staked tomatoes.

9VAC5-130-60. Waivers.

A. A waiver from any provision of this chapter may be 

granted by the board for any person or geographic area 

provided that satisfactory demonstration is made that another 

state or local government entity has in effect statutory 

provisions or other enforceable mechanisms that will achieve 

the objective of the provision from which the waiver is 

granted.

B. Demonstrations made pursuant to subsection A of this 

section should, at a minimum, meet the following criteria:

1. Show that the statutory provisions or other enforceable 

mechanisms essentially provide the same effect as the 

provision from which the waiver is granted.

2. Show that the governmental entity has the legal 

authority to enforce the statutory provisions or enforceable 

mechanisms.

C. Waivers under subsection A of this section shall be 

executed through a memorandum of understanding between 

the board and affected governmental entity and may include 

such terms and conditions as may be necessary to ensure that 

the objectives of this chapter are met by the waiver.

D. A waiver from any applicable provision of this chapter 

may be granted by the board for any locality that has lawfully 

adopted an ordinance in accordance with 9VAC5-130-100.

9VAC5-130-70. (Reserved.)

9VAC5-130-80. (Reserved.)

9VAC5-130-90. (Reserved.)

Part I

Local Ordinances

9VAC5-130-100. Local ordinances on open burning.

A. General.

1. If the governing body of any locality wishes to adopt an 

ordinance relating to air pollution and governing open 

burning within its jurisdiction, the ordinance must first be 

approved by the board (see § 10.1-1321 B of the Code of 

Virginia).

2. In order to assist local governments in the development 

of ordinances acceptable to the board, the ordinance in 

subsection C of this section is offered as a model.

3. If a local government wishes to adopt the language of 

the model ordinance without changing any wording except 

that enclosed by parentheses, that government's ordinance 

shall be deemed to be approved by the board on the date of 

local adoption provided that a copy of the ordinance is 

filed with the department upon its adoption by the local 

government.

4. If a local government wishes to change any wording of 

the model ordinance aside from that enclosed by 

parentheses in order to construct a local ordinance, that 

government shall request the approval of the board prior to 

adoption of the ordinance by the local jurisdiction. A copy 

of the ordinance shall be filed with the department upon its 

adoption by the local government.

5. Local ordinances that have been approved by the board 

prior to April 1, 1996, remain in full force and effect as 

specified by their promulgating authorities.

B. Establishment and approval of local ordinances varying 

from the model.

1. Any local governing body proposing to adopt or amend 

an ordinance relating to open burning that differs from the 

model local ordinance in subsection C of this section shall 
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first obtain the approval of the board for the ordinance or 

amendment as specified in subdivision A 4 of this section. 

The board in approving local ordinances will consider, but 

will not be limited to, the following criteria:

a. The local ordinance shall provide for 

intergovernmental cooperation and exchange of 

information.

b. Adequate local resources will be committed to 

enforcing the proposed local ordinance.

c. The provisions of the local ordinance shall be as strict 

as state regulations, except as provided for leaf burning 

in § 10.1-1308 of the Virginia Air Pollution Control Law.

d. If a waiver from any provision of this chapter has been 

requested under 9VAC5-130-60, the language of the 

ordinance shall achieve the objective of the provision 

from which the waiver is requested.

2. Approval of any local ordinance may be withdrawn if 

the board determines that the local ordinance is less strict 

than state regulations or if the locality fails to enforce the 

ordinance.

3. If a local ordinance must be amended to conform to an 

amendment to state regulations, such local amendment will 

be made within six months of the effective date of the 

amended state regulations.

4. Local ordinances are a supplement to state regulations. 

Any provisions of local ordinances that have been 

approved by the board and are more strict than state 

regulations shall take precedence over state regulations 

within the respective locality. If a locality fails to enforce 

its own ordinance, the board reserves the right to enforce 

state regulations.

5. A local governing body may grant a variance to any 

provision of its air pollution control ordinance(s) provided 

that:

a. A public hearing is held prior to granting the variance;

b. The public is notified of the application for a variance 

by notice in at least one major newspaper of general 

circulation in the affected locality at least 30 days prior to 

the date of the hearing; and

c. The variance does not permit any owner or other 

person to take action that would result in a violation of 

any provision of state regulations unless a variance is 

granted by the board. The public hearings required for 

the variances to the local ordinance and state regulations 

may be conducted jointly as one proceeding.

6. 9VAC5-170-150 shall not apply to local ordinances 

concerned solely with open burning.

C. Model ordinance.

ORDINANCE NO. (000)

Section (000-1). Title. 

This chapter shall be known as the (local jurisdiction) 

Ordinance for the Regulation of Open Burning.

Section (000-2). Purpose. 

The purpose of this chapter is to protect public health, 

safety, and welfare by regulating open burning within (local 

jurisdiction) to achieve and maintain, to the greatest extent 

practicable, a level of air quality that will provide comfort and 

convenience while promoting economic and social 

development. This chapter is intended to supplement the 

applicable regulations promulgated by the State Air Pollution 

Control Board and other applicable regulations and laws.

Section (000-3). Definitions.

 For the purpose of this chapter and subsequent amendments 

or any orders issued by (local jurisdiction), the words or 

phrases shall have the meaning given them in this section.

"Automobile graveyard" means any lot or place that is 

exposed to the weather and upon which more than five motor 

vehicles of any kind, incapable of being operated, and that it 

would not be economically practical to make operative, are 

placed, located or found.

"Built-up area" means any area with a substantial portion 

covered by industrial, commercial or residential buildings.

"Clean burning waste" means waste that is not prohibited to 

be burned under this ordinance and that consists only of (i) 

100% wood waste, (ii) 100% clean lumber or clean wood, 

(iii) 100% yard waste, or (iv) 100% mixture of only any 

combination of wood waste, clean lumber, clean wood or 

yard waste.

"Clean lumber" means wood or wood products that have 

been cut or shaped and include wet, air-dried, and kiln-dried 

wood products. Clean lumber does not include wood products 

that have been painted, pigment-stained, or pressure-treated 

by compounds such as chromate copper arsenate, 

pentachlorophenol, and creosote.

"Clean wood" means uncontaminated natural or untreated 

wood. Clean wood includes, but is not limited to, byproducts 

of harvesting activities conducted for forest management or 

commercial logging, or mill residues consisting of bark, 

chips, edgings, sawdust, shavings or slabs. It does not include 

wood that has been treated, adulterated, or chemically 

changed in some way; treated with glues, binders or resins; or 

painted, stained or coated.

"Construction waste" means solid waste that is produced or 

generated during construction remodeling, or repair of 

pavements, houses, commercial buildings and other 

structures. Construction waste consists of lumber, wire, 

sheetrock, broken brick, shingles, glass, pipes, concrete, and 
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metal and plastics if the metal or plastics are a part of the 

materials of construction or empty containers for such 

materials. Paints, coatings, solvents, asbestos, any liquid, 

compressed gases or semi-liquids, and garbage are not 

construction wastes and the disposal of such materials must 

be in accordance with the regulations of the Virginia Waste 

Management Board.

"Debris waste" means wastes resulting from land clearing 

operations. Debris wastes include but are not limited to 

stumps, wood, brush, leaves, soil and road spoils.

"Demolition waste" means that solid waste that is produced 

by the destruction of structures, or their foundations, or both, 

and includes the same materials as construction waste.

"Garbage" means readily putrescible discarded materials 

composed of animal, vegetable or other organic matter.

"Hazardous waste" means a "hazardous waste" as described 

in 9VAC20-60 (Hazardous Waste Management Regulations).

"Household waste" means any waste material, including 

garbage, trash and refuse derived from households. For 

purposes of this regulation, households include single and 

multiple residences, hotels and motels, bunkhouses, ranger 

stations, crew quarters, campgrounds, picnic grounds and 

day-use recreation areas. Household wastes do not include 

sanitary waste in septic tanks (septage) that is regulated by 

state agencies.

"Industrial waste" means any solid waste generated by 

manufacturing or industrial process that is not a regulated 

hazardous waste. Such waste may include but is not limited to 

waste resulting from the following manufacturing processes: 

electric power generation; fertilizer/agricultural chemicals; 

food and related products/byproducts; inorganic chemicals; 

iron and steel manufacturing; leather and leather products; 

nonferrous metals manufacturing/foundries; organic 

chemicals; plastics and resins manufacturing; pulp and paper 

industry; rubber and miscellaneous plastic products; stone, 

glass, clay and concrete products; textile manufacturing; 

transportation equipment; and water treatment. This term 

does not include mining waste or oil and gas waste.

"Junkyard" means an establishment or place of business that 

is maintained, operated, or used for storing, keeping, buying, 

or selling junk, or for the maintenance or operation of an 

automobile graveyard, and the term shall include garbage 

dumps and sanitary landfills.

"Landfill" means a sanitary landfill, an industrial waste 

landfill, or a construction/demolition/debris landfill. See 

9VAC20-80 (Solid Waste Management Regulations) for 

further definitions of these terms.

"Local landfill" means any landfill located within the 

jurisdiction of a local government.

"Open burning" means the combustion of solid waste 

without:

1. Control of combustion air to maintain adequate 

temperature for efficient combustion;

2. Containment of the combustion reaction in an enclosed 

device to provide sufficient residence time and mixing for 

complete combustion; and

3. Control of the combustion products' emission.

"Open pit incinerator" means a device used to burn waste for 

the primary purpose of reducing the volume by removing 

combustible matter. Such devices function by directing a 

curtain of air at an angle across the top of a trench or similarly 

enclosed space, thus reducing the amount of combustion 

byproducts emitted into the atmosphere. The term also 

includes trench burners, air curtain incinerators and over draft 

incinerators.

"Refuse" means all solid waste products having the 

characteristics of solids rather than liquids and that are 

composed wholly or partially of materials such as garbage, 

trash, rubbish, litter, residues from clean up of spills or 

contamination or other discarded materials.

"Salvage operation" means any operation consisting of a 

business, trade or industry participating in salvaging or 

reclaiming any product or material, such as, but not limited 

to, reprocessing of used motor oils, metals, chemicals, 

shipping containers or drums, and specifically including 

automobile graveyards and junkyards.

"Sanitary landfill" means an engineered land burial facility 

for the disposal of household waste that is so located, 

designed, constructed, and operated to contain and isolate the 

waste so that it does not pose a substantial present or potential 

hazard to human health or the environment. A sanitary 

landfill also may receive other types of solid wastes, such as 

commercial solid waste, nonhazardous sludge, hazardous 

waste from conditionally exempt small quantity generators, 

construction, demolition, or debris waste and nonhazardous 

industrial solid waste. See 9VAC20-80 (Solid Waste 

Management Regulations) for further definitions of these 

terms.

"Smoke" means small gas-borne particulate matter 

consisting mostly, but not exclusively, of carbon, ash and 

other material in concentrations sufficient to form a visible 

plume.

"Special incineration device" means an open pit incinerator, 

conical or teepee burner, or any other device specifically 

designed to provide good combustion performance.

"Wood waste" means untreated wood and untreated wood 

products, including tree stumps (whole or chipped), trees, tree 

limbs (whole or chipped), bark, sawdust, chips, scraps, slabs, 

millings, and shavings. Wood waste does not include:
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1. Grass, grass clippings, bushes, shrubs, and clippings 

from bushes and shrubs from residential, 

commercial/retail, institutional, or industrial sources as part 

of maintaining yards or other private or public lands.

2. Construction, renovation, or demolition wastes.

3. Clean lumber.

"Yard waste" means grass, grass clippings, bushes, shrubs, 

and clippings from bushes and shrubs that come from 

residential, commercial/retail, institutional, or industrial 

sources as part of maintaining yards or other private or public 

lands. Yard waste does not include (i) construction, 

renovation, and demolition wastes or (ii) clean wood.

Section (000-4). Prohibitions on open burning.

A. No owner or other person shall cause or permit open 

burning or the use of a special incineration device for the 

destruction of refuse except as provided in this ordinance.

B. No owner or other person shall cause or permit open 

burning or the use of a special incineration device for the 

destruction of rubber tires, asphaltic materials, crankcase oil, 

impregnated wood or other rubber or petroleum based 

materials except when conducting bona fide firefighting 

instruction at firefighting training schools having permanent 

facilities.

C. No owner or other person shall cause or permit open 

burning or the use of a special incineration device for the 

destruction of hazardous waste or containers for such 

materials.

D. No owner or other person shall cause or permit open 

burning or the use of a special incineration device for the 

purpose of a salvage operation or for the destruction of 

commercial/industrial waste.

E. Open burning or the use of special incineration devices 

permitted under the provisions of this ordinance does not 

exempt or excuse any owner or other person from the 

consequences, liability, damages or injuries that may result 

from such conduct; nor does it excuse or exempt any owner 

or other person from complying with other applicable laws, 

ordinances, regulations and orders of the governmental 

entities having jurisdiction, even though the open burning is 

conducted in compliance with this ordinance. In this regard 

special attention should be directed to § 10.1-1142 of the 

Forest Fire Law of Virginia, the regulations of the Virginia 

Waste Management Board, and the State Air Pollution 

Control Board's Regulations for the Control and Abatement 

of Air Pollution.

F. Upon declaration of an alert, warning or emergency stage 

of an air pollution episode as described in 9VAC5-70 (Air 

Pollution Episode Prevention) or when deemed advisable by 

the State Air Pollution Control Board to prevent a hazard to, 

or an unreasonable burden upon, public health or welfare, no 

owner or other person shall cause or permit open burning or 

use of a special incineration device; and any in process 

burning or use of special incineration devices shall be 

immediately terminated in the designated air quality control 

region.

Section (000-5). Exemptions. 

The following activities are exempted to the extent covered 

by the State Air Pollution Control Board's Regulations for the 

Control and Abatement of Air Pollution:

A. Open burning for training and instruction of government 

and public firefighters under the supervision of the designated 

official and industrial in-house firefighting personnel;

B. Open burning for camp fires or other fires that are used 

solely for recreational purposes, for ceremonial occasions, for 

outdoor noncommercial preparation of food, and for warming 

of outdoor workers;

C. Open burning for the destruction of any combustible 

liquid or gaseous material by burning in a flare or flare stack;

D. Open burning for forest management and agriculture 

practices approved by the State Air Pollution Control Board; 

and

E. Open burning for the destruction of classified military 

documents.

Section (000-6). Permissible open burning.

A. Open burning is permitted on site for the destruction of 

leaves and tree, yard and garden trimmings located on the 

premises of private property, provided that the following 

conditions are met:

1. The burning takes place on the premises of the private 

property; (and)

2. The location of the burning is not less than 300 feet from 

any occupied building unless the occupants have given 

prior permission, other than a building located on the 

property on which the burning is conducted(; and

3. No regularly scheduled public or private collection 

service for such trimmings is available at the adjacent 

street or public road1).

B. Open burning is permitted on-site for the destruction of 

household waste by homeowners or tenants, provided that the 

following conditions are met:

1. The burning takes place on the premises of the dwelling;

2. Animal carcasses or animal wastes are not burned;

3. Garbage is not burned; and

4. The location of the burning is not less than 300 feet from 

any occupied building unless the occupants have given 

prior permission, other than a building located on the 

property on which the burning is conducted (; and
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5. No regularly scheduled public or private collection 

service for such refuse is available at the adjacent street or 

public road2).

C. Open burning is permitted on site for destruction of 

debris waste resulting from property maintenance, from the 

development or modification of roads and highways, parking 

areas, railroad tracks, pipelines, power and communication 

lines, buildings or building areas, sanitary landfills, or from 

any other clearing operations that may be approved by 

(designated local official), provided the following conditions 

are met:

1. All reasonable effort shall be made to minimize the 

amount of material burned, with the number and size of the 

debris piles approved by (designated local official);

2. The material to be burned shall consist of brush, stumps 

and similar debris waste and shall not include demolition 

material;

3. The burning shall be at least 500 feet from any occupied 

building unless the occupants have given prior permission, 

other than a building located on the property on which the 

burning is conducted;

4. The burning shall be conducted at the greatest distance 

practicable from highways and air fields,

5. The burning shall be attended at all times and conducted 

to ensure the best possible combustion with a minimum of 

smoke being produced;

6. The burning shall not be allowed to smolder beyond the 

minimum period of time necessary for the destruction of 

the materials; and

7. The burning shall be conducted only when the prevailing 

winds are away from any city, town or built-up area.

D. Open burning is permitted for destruction of debris on the 

site of local landfills provided that the burning does not take 

place on land that has been filled and covered so as to present 

an underground fire hazard due to the presence of methane 

gas, provided that the following conditions are met:

1. The burning shall take place on the premises of a local 

sanitary landfill that meets the provisions of the regulations 

of the Virginia Waste Management Board;

2. The burning shall be attended at all times;

3. The material to be burned shall consist only of brush, 

tree trimmings, yard and garden trimmings, clean burning 

waste, clean burning debris waste, or clean burning 

demolition waste;

4. All reasonable effort shall be made to minimize the 

amount of material that is burned;

5. No materials may be burned in violation of the 

regulations of the Virginia Waste Management Board or 

the State Air Pollution Control Board. The exact site of the 

burning on a local landfill shall be established in 

coordination with the regional director and (designated 

local official); no other site shall be used without the 

approval of these officials. (Designated local official) shall 

be notified of the days during which the burning will 

occur.

(E. Sections 000-6 A through D notwithstanding, no owner 

or other person shall cause or permit open burning or the 

use of a special incineration device during May, June, July, 

August, or September.3)

Section (000-7). Permits.

A. When open burning of debris waste (Section 000-6 C) or 

open burning of debris on the site of a local landfill (Section 

000-6 D) is to occur within (local jurisdiction), the person 

responsible for the burning shall obtain a permit from 

(designated local official) prior to the burning. Such a permit 

may be granted only after confirmation by (designated local

official) that the burning can and will comply with the 

provisions of this ordinance and any other conditions that are 

deemed necessary to ensure that the burning will not 

endanger the public health and welfare or to ensure 

compliance with any applicable provisions of the State Air 

Pollution Control Board's Regulations for the Control and 

Abatement of Air Pollution. The permit may be issued for 

each occasion of burning or for a specific period of time 

deemed appropriate by (designated local official).

B. Prior to the initial installation (or reinstallation, in cases 

of relocation) and operation of special incineration devices, 

the person responsible for the burning shall obtain a permit 

from (designated local official), such permits to be granted 

only after confirmation by (designated local official) that the 

burning can and will comply with the applicable provisions in 

Regulations for the Control and Abatement of Air Pollution 

and that any conditions are met that are deemed necessary by 

(designated local official) to ensure that the operation of the 

devices will not endanger the public health and welfare. 

Permits granted for the use of special incineration devices 

shall at a minimum contain the following conditions:

1. All reasonable effort shall be made to minimize the 

amount of material that is burned. Such efforts shall 

include, but are not limited to, the removal of pulpwood, 

sawlogs and firewood.

2. The material to be burned shall consist of brush, stumps 

and similar debris waste and shall not include demolition 

material.

3. The burning shall be at least 300 feet from any occupied 

building unless the occupants have given prior permission, 

other than a building located on the property on which the 

burning is conducted; burning shall be conducted at the 

greatest distance practicable from highways and air fields. 

If (designated local official) determines that it is necessary 
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to protect public health and welfare, he may direct that any 

of the above cited distances be increased.

4. The burning shall be attended at all times and conducted 

to ensure the best possible combustion with a minimum of 

smoke being produced. Under no circumstances should the 

burning be allowed to smolder beyond the minimum period 

of time necessary for the destruction of the materials.

5. The burning shall be conducted only when the prevailing 

winds are away from any city, town or built-up area.

6. The use of special incineration devices shall be allowed 

only for the destruction of debris waste, clean burning 

construction waste, and clean burning demolition waste.

7. Permits issued under this subsection shall be limited to a 

specific period of time deemed appropriate by (designated 

local official).

(C. An application for a permit under Section 000-7 A or 

000-7 B shall be accompanied by a processing fee of $----.4)

Section (000-8). Penalties for violation.

A. Any violation of this ordinance is punishable as a Class 1 

misdemeanor. (See § 15.2-1429 of the Code of Virginia.)

B. Each separate incident may be considered a new 

violation.

1

This provision shall be included in ordinances for urban areas. It may be 

included in ordinances for nonurban areas.

2

This provision shall be included in ordinances for urban areas. It may be 

included in ordinances for nonurban areas.

3

This provision shall be included in ordinances for jurisdictions within 

volatile organic compound emissions control areas. It may be included in 

ordinances for jurisdictions outside these areas.

4

The fee stipulation in this section is optional at the discretion of the 

jurisdiction.

VA.R. Doc. No. R09-1680; Filed January 21, 2009, 3:34 p.m. 

Final Regulation 

REGISTRAR'S NOTICE: The following regulatory action is 

exempt from the Administrative Process Act in accordance 

with § 2.2-4006 A 4 c of the Code of Virginia, which 

excludes regulations that are necessary to meet the 

requirements of federal law or regulations, provided such 

regulations do not differ materially from those required by 

federal law or regulation. The State Air Pollution Control 

Board will receive, consider and respond to petitions by any 

interested person at any time with respect to reconsideration 

or revision. 

Title of Regulation: 9VAC5-140. Regulation for Emissions 

Trading Programs (amending 9VAC5-140-1010, 9VAC5-

140-1020, 9VAC5-140-1060, 9VAC5-140-2010, 9VAC5-

140-2020, 9VAC5-140-3010, 9VAC5-140-3020).

Statutory Authority: §§ 10.1-1308 and 10.1-1322.3 of the 

Code of Virginia; §§ 108, 109, 110 and 302 of the Clean Air 

Act; 40 CFR Part 51. 

Effective Date: March 18, 2009. 

Agency Contact: Mary E. Major, Department of 

Environmental Quality, 629 East Main Street, P.O. Box 1105, 

Richmond, VA 23218, telephone (804) 698-4423 or email 

memajor@deq.virginia.gov. 

Summary:

Substantive amendments to the regulation include:

1. The definitions of “CAIR NOx Annual Trading 

Program,” “CAIR NOx Ozone Season Trading Program,” 

“CAIR SO2 Trading Program,” and “permitting 

authority” in 9VAC5-140-1020, 9VAC5-140-2020, and 

9VAC5-140-3020 are amended to clarify that they are not 

intended to create trading programs only for sources 

geographically located within the borders of the 

Commonwealth of Virginia. Therefore, qualifying sources 

within the Commonwealth are to become full participants 

in the EPA-administered regional CAIR trading programs 

for annual NOx, ozone season NOx, and annual SO2, along 

with sources permitted by authorities in all other states 

that are participating in the regional CAIR trading 

programs. The new language clarifies that the regulations 

should not be interpreted to limit the trading program to 

Virginia sources, which would be contrary to the intention 

that sources covered by other states’ approved CAIR rules 

or by the CAIR FIP may trade allowances with sources in 

the Commonwealth. In addition, the provisions of 9VAC5-

140-1010, 9VAC5-140-2010, and 9VAC5-140-3010 are 

amended to reflect this clarification.

2. The definition of “most stringent state or federal NOx 

emissions limitation” in 9VAC5-140-1020, 9VAC5-140-

2020, and 9VAC5-140-3020 is amended to clarify that the 

primary fuel, where it is not designated in the permit, is the 

fuel that would result in the lowest emission rate.

3. The definition of “cogeneration unit” in 9VAC5-140-

1020, 9VAC5-140-2020, and 9VAC5-140-3020 is amended 

so that most units co-firing biomass will be exempt from 

CAIR. Specifically, the calculation methodology is 

removed for the efficiency standard in the cogeneration 

unit definition to exclude energy input from biomass 

making it more likely that units co-firing biomass are able 

to meet the efficiency standard and qualify for exemption 

from the rule. In these same sections, technical 

amendments were made to add a new definition of 

"biomass" and revise the definition of "total energy input."