Virginia Regulatory Town Hall
Department of Environmental Quality
Air Pollution Control Board
Regulation for Open Burning [9 VAC 5 ‑ 130]
Review 1133
Periodic Review of this Chapter
Includes a Small Business Impact Review
Date Filed: 1/23/2012
Notice of Periodic Review
Pursuant to Executive Order 14 (2010) and §§ 2.2-4007.1 and 2.2.-4017 of the Code of Virginia, the Department of Environmental Quality is conducting a periodic review of a regulation of the State Air Pollution Control Board, specifically, 9VAC5-130, Regulation for Open Burning.

The review of this regulation will be guided by the principles in Executive Order 14 (2010) ( and § 2.2-4007.1 of the Code of Virginia (

The department and the board are seeking public comments on the review of any issue relating to the regulation including whether (i) the regulation is effective in achieving its goals; (ii) the regulation is essential to protect the health, safety or welfare of citizens or for the economical performance of important governmental functions; (iii) there are available alternatives for achieving the purpose of the regulation; (iv) there are less burdensome and less intrusive alternatives for achieving the purpose of the regulation; and (v) the regulation is clearly written and easily understandable by the affected persons. The department and board are also seeking public comments on ways to minimize the economic impact on small businesses in a manner consistent with the purpose of the regulation.

In addition, the department and board seek public input on the following specific issues.

1. Since the open burning regulation was originally promulgated in 1972, methods for addressing open burning have evolved. Although the population has increased and cities and towns have expanded, so too have methods of dealing with certain waste materials; for example, opportunities for composting have increased. Numerous localities have also adopted open burning ordinances that address their local concerns. In addition, areas with recognized pollution problems, such as ozone nonattainment areas, have open burning restrictions that enable the Commonwealth to meet targeted national standards. In the interests of encouraging local control of what is essentially a local issue, should the statewide open burning regulation be limited to VOC/NOX control areas (see 9VAC5-20-206), which correspond to localities with recognized air pollution issues?

2. If a statewide rule is retained: 9VAC5-130-40 A 5 allows open burning in "urban areas" for the on-site destruction of leaves and tree, yard and garden trimmings located on private property if no regularly scheduled public or private collection service is available. In "non-urban" areas, such open burning is permitted regardless of the availability of collection service. Urban areas are defined generally in 9VAC5-10 (General Definitions), with the specific localities listed in 9VAC5-20-201. This list is based in part on the federal list of urbanized areas. Since population characteristics are not necessarily indicative of an air pollution problem, should the criteria for burning limitations be based on urban areas, or simply whether or not collection service is available? If urban areas continue to be a determining criteria, should the state list be revised to reflect the most current federal list of urbanized areas and clusters? Or perhaps something else?

3. If a statewide rule is retained: The term "on-site" was originally added in order to limit open burning where the waste material was generated. However, it is believed that there may be air pollution and waste management benefits associated with removal of debris from one site and burning it at another. Should open burning be limited to on-site destruction of waste generated at the site, or should open burning be allowed off-site?

The regulation may be viewed on the DEQ air regulation web page:

The purpose of the regulation is to (i) to limit or, in some instances, prohibit open burning and to establish requirements to restrict emissions of particulates and volatile organic compounds (VOCs) during the peak ozone season to the level necessary for the protection of public health and welfare; and (ii) to provide guidance to local governments on the adoption of ordinances to regulate open burning. This regulation is designed to protect public health and welfare with the least possible costs and intrusiveness to the citizens and businesses of the Commonwealth and to provide the necessary procedures and rules by which the statute may be administered.

The comment period begins February 13, 2012, and ends on March 5,2012.

Comments may be submitted online to the Virginia Regulatory Town Hall at Comments may also be sent to Mary E. Major, Office of Regulatory Affairs, Department of Environmental Quality, Post Office Box 1105, Richmond, Virginia 23218 (deliveries can be made to 629 East Main Street, Richmond, Virginia 23219), phone 804.698.4424, fax 804-698-4510, email

Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of the periodic review will be posted on the Town Hall and published in the Virginia Register of Regulations.
Publication of Notice in the Register and Public Comment Period
Published in the Virginia Register on 2/13/2012
Comment Period begins on the publication date and ended on 3/5/2012

Comments Received: 3

Review Result
Amend the regulation
TH-07 Periodic Review Report of Findings   (not yet submitted)
Action Implementing the Result
Action ID #3676: Open Burning (Revision E12)
Attorney General Certification
Prior to early 2014, AG periodic review certifications were done off-line