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Municipal Technical Advisory Service (MTAS)

Original Author: Bingham, Pamela
Date of Material: 02/12/1999

Air pollution--Laws and regulations
Air pollution--Laws and regulations--State

Open-Air Fires and Unattended Fires

Reviewed Date: 05/20/2021
MTAS was asked for an opinion on brush burning operations.

In accordance with your request, I have attempted to locate an opinion from the Office of the State Attorney General addressing brush burning operations. I researched both published and unpublished opinions and found nothing on point. There may have been an “informal” opinion on this subject, but informal opinions are not made available for research or publication, and they apply only to the fact situation presented in that particular request. However, I did find two state statutes that address open-air fires and unattended fires. The relevant state laws are as follows:

§ 39-14-306. Setting fires; permits; times

(a)(1) It is unlawful for any person to start an open-air fire between October 15 and May 15, inclusive, within five hundred feet (500') of any forest, grasslands or woodlands without first securing a permit from the state forester or the state forester's duly authorized representative. Depending upon the potential for hazardous burning conditions, the state forester may prescribe a period other than October 15 to May 15 within which a permit must be obtained prior to starting an open air fire.

(2 ) A violation of this sub section (a) is a Class C misdemeanor.

(b)(1) In extreme fire hazard conditions, the commissioner of agriculture, in consultation with the state forester and the county mayors of impacted counties, may issue a burning ban prohibiting all open air fire in any area of the state.
(2) A violation of this subsection (b) is reckless burning and punishable as a Class A misdemeanor as provided in § 39-14-304.

(c) This section shall not apply to fires which may be set within the corporate limits of any incorporated town or city that has passed ordinances controlling the setting of fires.

§ 39-14-305. Unattended fires

(a) It is unlawful for any person who originates or uses an open fire to leave such fire unattended without totally extinguishing the same within one hundred fifty feet (150') of forest or woodlands or within one hundred fifty feet (150') of other inflammable material, the setting fire to which inflammable material would naturally and proximately result in such fire being conveyed to forest or woodlands.

(b) A violation of this section is a Class B misdemeanor.

Under T.C.A. § 39-14-306(c) , a city may, by ordinance, set its own times for setting open air fires. If a municipality has not passed such an ordinance, then the times prescribed by that statute are automatically applicable. In any event, since both of the above statutes carry criminal penalties for a violation, the state has the authority to enjoin further brush burning until the provisions of the statute(s) are complied with.