WSR 99-07-110

PROPOSED RULES

DEPARTMENT OF ECOLOGY


[ Order 97-39-- Filed March 23, 1999, 4:40 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-21-099.

Title of Rule: Opening burning (all types of outdoor burning except agricultural burning and silvicultural burning).

Purpose: To achieve consistency with, and implement, all related provisions of chapter 70.94 RCW.

Other Identifying Information: Chapter 173-425 WAC (all sections).

Statutory Authority for Adoption: RCW 70.94.700 and [70.94.]755.

Statute Being Implemented: Chapter 70.94 RCW.

Summary: The purpose of the proposed rule is to establish a program to implement the limited burning policy authorized by sections [RCW 70.94.]743 through [70.94.]765 of the Washington Clean Air Act (chapter 70.94 RCW) and other provisions of the act that pertain to outdoor burning (except agricultural and silvicultural burning). The limited burning policy requires ecology and other agencies to prohibit burning in certain areas, require permits for most types of burning (where not prohibited), and foster and encourage reasonable alternatives to burning.

Reasons Supporting Proposal: Chapter 173-425 WAC needs to be amended to make it consistent with chapter 70.94 RCW as changed in 1995, 1997, and 1998 through ESHB 1080, SHB 1726, EHB 2414, and SHB 2523.

Name of Agency Personnel Responsible for Drafting: Bruce Smith, 300 Desmond Drive, Lacey, (360) 407-6889; Implementation and Enforcement: Mary Burg, 300 Desmond Drive, Lacey, (360) 407-6800.

Name of Proponent: Washington State Department of Ecology, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The rule applies to all outdoor burning except agricultural and silvicultural (forest) burning, and burning on Indian reservations. It establishes a program to implement the limited burning policy authorized by sections [RCW 70.94.]743 through [70.94.]765 of the Washington Clean Air Act (chapter 70.94 RCW) and other provisions of the act that pertain to such burning. The limited burning policy requires ecology and other agencies to: (1) Reduce outdoor burning to the greatest extent practical, primarily by prohibiting it in certain areas; (2) control it in other areas by imposing requirements and permits for most types of burning; and (3) foster and encourage reasonable alternatives to burning. The proposed rule revisions are intended to make the WAC consistent with all related provisions of the RCW, some of which have been changed in recent years (1995, 1997, and 1998) through ESHB 1080, SHB 1726, EHB 2414, and SHB 2523. The anticipated effects of the rule include cleaner air and some further restrictions on burning, which may result in higher costs for property owners and land developers or their customers, and agencies involved in implementing the rule. However, when burning is prohibited in areas having reasonable alternatives to burning, these agency costs will be reduced.

Proposal Changes the Following Existing Rules: The proposed revisions only prohibit residential and land clearing burning in areas where outdoor burning is prohibited by statute. They also add a prohibition on land clearing burning in areas with a population density of one thousand people per square mile. They also replace the old process for determining if a reasonable alternative to burning exists for the various types of organic refuse in each area of the state - a determination which can result in that type of burning being prohibited in the area. They also impose some restrictions on burning demolition debris, burning hauled materials, burning when a fire danger burn ban has been declared, burning that is detrimental to the health, safety, or welfare of any person, that causes damage to property or business, or that causes a nuisance, and burning in outdoor containers. The revisions also identify all of the types of burning that require a permit, they establish a process for identifying the permitting and enforcing agencies for each type of burning and for determining the type of permit to be used, and they establish a revised general permit for residential burning.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

INTRODUCTION: Chapter 19.85 RCW (the Regulatory Fairness Act) requires that rule-making actions be examined for disproportionate impacts on small versus large business. If such impacts occur, they are to be mitigated to the extent feasible and legal under the stated objectives of the statute upon which the rule is based. An examination of the above referenced rule indicates that no disproportionate impacts occur. The remainder of this document describes the analysis and reasoning leading to that conclusion.

BACKGROUND: Much of this proposed amendatory rule incorporates changes in state statutory or federal regulatory requirements since the previous revision in 1992. In addition, the text of the rule has been reorganized and revised in the interest of greater clarity and usability. This discussion will not consider these changes.

Although firms in many businesses or industries (as well as private individuals) may be affected by the proposed rule revisions from time to time, it appears that the most significant impacts will result from the proposed WAC 173-425-040(5) language relating to areas with alternatives to burning. It is expected that a major portion of those impacts will occur in those sectors of the construction and related industries where land and land use conversion (including land clearing) are a significant part of the cost and revenue structure of typical firms. These include:

SIC 1531 - Operative Builders: Firms primarily engaged in construction of single family dwellings or other buildings for sale on their own account.1

SIC 6552 - Land Subdividers and Developers (Except Cemeteries): Firms primarily engaged subdividing real property into lots and in developing it for resale on their own account.

Firms in other construction industries (general residential and nonresidential, heavy, and special trade contractors) normally conduct their activities on land or other property owned by others - frequently firms in the sectors listed above. Costs incurred by these contractors for disposal of land clearing debris would generally be passed back to property owners or others, including ultimate purchasers of fully developed property. Hence, these sectors have been excluded from the analysis described here.

ANALYSIS AND RESULTS: The results displayed below are based on 1997 levels and values and use costs per $100 of operating revenue (sales) as the measure of impact. Where necessary, information from earlier periods was extrapolated to 1997 levels using relationships derived from the information resources described below.

Information and data for this analysis was drawn from the following sources:

1. The 1987 and 1992 editions of the Census of Construction Industries: Pacific States and the 1992 edition of the Census of Financial, Insurance and Real Estate Industries were used to assign activity levels to small versus large businesses in the sectors listed above and to extrapolate forward to 1997.

2. The same sources and the 1998 edition of the Almanac of Business and Industrial Financial Ratios provided information from which the relationship between operating costs and operating revenues, and the magnitude of land cost in relation to each, for these industries were derived.

3. The Washington Department of Revenue report Tax Statistics 1997 was used to identify the market values of raw developable land in a state-wide and regional basis and to identify the geographic distribution of activity. This then permitted an estimate of the acres of land utilized by the industries considered here during 1997.2

4. Tons of land clearing residue generated per acre was taken from the small business economic impact statement prepared for the 1992 revision to chapter 173-425 WAC. This was used in conjunction with the above to estimate total land clearing residue generated by each industry.3 Nonburning disposal costs were estimated at the 1997 median county solid waste tipping fee of $71.93/ton. These costs were then converted to a dollars per $100 of sales basis, and are presented below.

The following table displays the results of the analysis process described above. Discussion of these results follows:


NONBURNING DISPOSAL OF

LAND CLEARING RESIDUE

COSTS PER $100 REVENUE -

WEIGHTED STATE-WIDE BASIS


SICSMALL BUSINESSLARGE BUSINESS
1531$6.78$7.40
6552$13.35$14.11

DISCUSSION OF RESULTS: As noted in item #2 below, there is a rather pronounced clustering of activity in both industries in nine relatively urbanized counties of the state. There is also a significant difference in developable land values in these counties compared with the rest of the state. Thus, it was judged that the use of simple state-wide averages would present a distorted picture of the true impacts of the proposed rule. Instead, the results shown above are weighted averages, with the geographic distribution of activity providing the weights.

The larger impacts shown above for SIC 6552 than for 1531 are not surprising. The former industry performs the "first stage" part of the overall land development process. Thus, revenues and costs for businesses in this sector are heavily weighted by land values. By contrast, the revenues and costs of firms in SIC 1531 also include the values associated with structures and other improvements - thus resulting in a lower relative impact for land clearing residue disposal costs.

The impact estimates provided above are clearly quite general in that they assume that the state-wide effects shown in the table will prevail everywhere and will be felt by all firms operating in the industries considered here. They are also rather conservative, in that it is implicitly assumed that all firms will incur costs equal to the median county solid waste tipping fee cited above. Neither of these is likely to hold true in all cases. Some of the more significant factors influencing actual impacts in particular cases include:

1. Location with respect to current or future nonburning areas: Land clearing burning is already prohibited in areas of the state that exceed (or have exceeded) federal or state ambient air quality standards for pollutants associated with outdoor burning. Further, chapter 70.94 RCW requires that such burning end cities with populations greater than 10,000 and in urban growth areas by the end of the years 2000 or 2006, depending on population.4 In some cases, local governments have already implemented burning prohibitions. Thus, businesses operating within such areas either already are - or relatively soon will be - incurring the costs of nonburning disposal of land clearing residue, whatever they may be in each case. The current rule proposal thus does not add to regulatory burdens in such instances.

2. Location with respect to levels of construction/development activity: Over the past several years, nine counties5 have rather consistently accounted for approximately 90% of the activity in the industries considered here. Not surprisingly, developable land values are substantially higher in these counties than in the remainder of the state. Thus, the relative cost of nonburning disposal of land clear residue is significantly reduced in such areas. The remaining roughly 10% of construction and development activity occurring in the remainder of the state does not enjoy this relative advantage. However, burning may continue to be allowed in these areas as discussed below.

3. Type of vegetative cover: The assumption of "moderately wooded" land cover used here is a middle case between heavily wooded (forested) cover and brushy (or no) cover. Presence of the former would approximately double the nonburning disposal impacts shown in the table above. However, this type of land cover would usually be expected to yield revenue from merchantable timber to aid in covering the costs of disposal. Disposal costs for clearing brushy land cover would, of course, be substantially lower than presented here.

4. Availability of nonburning alternatives: Land clearing burning (as well as certain other types of outdoor burning) is prohibited by proposed WAC 173-425-040(5) in areas with nonburning alternative means of disposal that meet the following criteria:

a) Available within fifteen miles of the site at which the waste is generated;

b) Available at a cost less than or equal to the tipping fee for such material at a facility operated because of a municipally sponsored recycling program, or if no program exists, at a cost less than or equal to the median county tipping fee for solid waste disposal ($71.93/ton in 1997); and

c) Is less harmful to the environment than outdoor burning.

An informal survey of municipal solid waste utilities conducted by air quality program staff revealed that municipally sponsored programs were generally available in Washington’s more urbanized counties including the nine identified as high construction/development activity areas. These programs (and similar private services) were generally available at less than or the same cost as general solid waste disposal and, in many cases, at less than the median solid waste tipping fee. Thus, in these instances, the costs of nonburning disposal of land clearing debris would be less than that reported here. In other, less urbanized counties nonburning disposal may be available at solid waste disposal tipping fees. Alternatively, if land clearing debris is not accepted by solid waste utilities or other services/programs are not available, or if tipping fees exceed the median value for the state, burning may continue to be allowed by permit or otherwise unless prohibited by other elements of the proposed rule (as described above) or on account of episodic air quality problems or fire danger conditions.

OTHER ELEMENTS OF THE PROPOSAL: Additional elements of the proposal that may result in new regulatory requirements include generally prohibiting burning of materials hauled from areas where burning is otherwise precluded, and the establishment of requirements to be met if this activity is to occur (WAC 173-425-050(2)), and requiring permits for types of burning not previously covered by such requirements. Available information did not allow analysis of relative impacts of these.

MITIGATION: The results presented here support a conclusion that the identifiable impacts of the proposed rule upon small versus large businesses are not disproportionate. Therefore, mitigation is not required. However, certain features of the proposal may have mitigative effects. These include allowing burning in parts of nonattainment areas under certain conditions (WAC 173-425-040(1)), and a broadening of the types of permits that may be used (WAC 173-425-060 (1)(b)). Further, identification and certification of nonburning alternatives is to occur by December 31, 2000. Thus, continued burning may be allowed (subject to other restrictions) in at least some areas until that time. Finally, WAC 173-425-070 provides for variances from rule requirements.


1Firms engaged in construction (or renovation) of structures for rental or lease to others are classified in SIC 651 - Real Estate. However, available data was not sufficient to allow inclusion of such firms in this analysis.
2Land receipts reported for SICs 1531 and 6552 in the Census of Construction Industries are net of the value of improvements to land made prior to sale. This helps to guard against an overestimate of land utilization.
3The "moderately wooded" land cover category was used here at a residue generation rate of 37.5 tons per acre. The implications of other categories are considered in the discussion of results.
4The proposed rule also prohibits land clearing burning in areas with a population density equal to or greater than 1,000 persons per square mile if contiguous to areas where such burning is otherwise prohibited on generally the same time schedule. Available information indicates that such areas are not large. The factors discussed here would have the same effects in such areas.
5These counties include Clark, King, Kitsap, Pierce, Snohomish, Spokane, Thurston, Whatcom and Yakima.

A copy of the statement may be obtained by writing to Bruce Smith, Washington State Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, or via: http://www.wa.gov/ecology/leg/wac_173425/zp97-39ac.pdf, phone (360) 407-6889, fax (360) 407-6802.

RCW 34.05.328 applies to this rule adoption. These rules are significant under RCW 34.05.328 because they: (1) Adopt substantive provisions which subject the violator to penalty or sanction; (2) establish, alter or revoke qualification or standard for the issuance, suspension or revocation of a license or permit; and (3) adopt new or make significant amendments to a policy or regulatory program.

Hearing Location: Yakima Valley Regional Library Auditorium, 102 North 3rd Street, Yakima, WA, on April 27, 1999, at 7:00 p.m.; at Cascade Natural Gas, 614 North Mission Street, Wenatchee, WA, on May 5, 1999, at 7:00 p.m.; at the Spokane Regional Health District, 1101 West College Avenue, Suite 104, Spokane, WA, on May 6, 1999, at 7:00 p.m.; at the Benton County PUD, 2721 West 10th Avenue, Kennewick, WA, on May 7, 1999, at 7:00 p.m.; at the Silverdale Community Center, 9729 Silverdale N.W., Silverdale, WA, on May 10, 1999, at 7:00 p.m.; at the Northwest Air Pollution Authority, 1600 South Second Street, Mount Vernon, WA, on May 11, 1999, at 7:00 p.m.; at the Clark County PUD, 8600 Northeast 117th Avenue, Vancouver, WA, on May 12, 1999, at 7:00 p.m.; and at the Department of Ecology, 300 Desmond Drive, Lacey, WA, on May 13, 1999, at 7:00 p.m.

Assistance for Persons with Disabilities: Contact Pat Norman by April 23, 1999, TDD (360) 407-6006, or (360) 407-6841 (voice).

Submit Written Comments to: Bruce Smith, P.O. Box 47600, Olympia, WA 98504-7600, e-mail brsm461@ecy.wa.gov, fax (360) 407-6802, by May 21, 1999.

Date of Intended Adoption: July 21, 1999.

March 23, 1999

Daniel J. Silver

Deputy Director

OTS-2967.3

Chapter 173-425 WAC

((OPEN)) OUTDOOR BURNING


AMENDATORY SECTION(Amending Order 91-57, filed 12/1/92, effective 1/1/93)

WAC 173-425-010
Purpose.

((This chapter promulgated under chapter 70.94 RCW, the Washington Clean Air Act, authorizes the department of ecology to implement the provisions of that act.  This rule establishes controls for open burning in the state in order to:

(1) Reduce open burning to the greatest extent practical by eliminating it in:

(a) Areas that exceed ambient air quality standards for PM-10 and/or carbon monoxide; and

(b) Urban growth areas or cities with a population of 10,000 or more by December 31, 2000;

(2) For areas where open burning is allowed, establish a limited burning program, including procedures by which open burning may be conducted;

(3) Encourage the development and use of alternate methods of debris disposal.)) The purpose of this rule is to establish a program to implement the limited burning policy authorized by sections 743 through 765 of the Washington Clean Air Act (chapter 70.94 RCW) and other provisions of the act that pertain to outdoor burning (except any outdoor burning listed in WAC 173-425-020(1)). Statutory authority for particular provisions of the rule is shown in parentheses throughout the rule.

The limited burning policy requires the department and other agencies to:

(1) Reduce outdoor burning to the greatest extent practical, especially by prohibiting it in certain circumstances; (RCW 70.94.743(1))

(2) Establish a permit program for limited burning, one that requires permits for most types of outdoor burning; and (RCW 70.94.745)

(3) Foster and encourage development of reasonable alternatives to burning. (RCW 70.94.745(6))

[Statutory Authority: Chapter 70.94 RCW.  92-24-077 (Order 91-57), 173-425-010, filed 12/1/92, effective 1/1/93.  Statutory Authority: RCW 70.94.331.  90-19-062 (Order 90-10), 173-425-010, filed 9/17/90, effective 10/18/90; Order DE 77-19, 173-425-010, filed 10/24/77.  Formerly WAC 18-12-010.]


AMENDATORY SECTION(Amending Order 91-57, filed 12/1/92, effective 1/1/93)

WAC 173-425-020
Applicability.

(((1) No outdoor burning shall occur during a declared period of impaired air quality.

(2) Except as described in subsection (1) of this section and WAC 173-425-050, this chapter applies to all forms of outdoor burning in the state except:

(a) Silvicultural burning (governed by chapter 332-24 WAC).

(b) Agricultural burning (governed by chapter 173-430 WAC).

(c) Recreational fires as defined in WAC 173-425-030(12).

(d) Ceremonial fires as defined in WAC 173-425-030(2).

(e) Burning to improve and maintain fire dependent ecosystems (pursuant to chapter 332-24 WAC).

(3) A local air authority, fire protection authority, county, or conservation district may enforce its own controls that are stricter than those set forth in this chapter.)) (1) This chapter applies to all outdoor burning in the state except:

(a) Agricultural burning (which is governed by chapter 173-430 WAC);

(b) Silvicultural burning (which is governed by chapter 332-24 WAC, the Washington state smoke management plan, and various laws including chapter 70.94 RCW); and

(c) Any outdoor burning on lands within the exterior boundaries of Indian reservations (unless provided for by intergovernmental agreement).

(2) Specifically, this chapter applies to:

(a) Residential burning. (RCW 70.94.745)

(b) Land clearing burning. (RCW 70.94.745)

(c) Storm or flood debris burning. (RCW 70.94.743)

(d) Tumbleweed burning. (RCW 70.94.745)

(e) Weed abatement fires. (RCW 70.94.650)

(f) Fire fighting instruction fires. (RCW 70.94.650)

(g) Rare and endangered plant regeneration fires. (RCW 70.94.651)

(h) Indian ceremonial fires. (RCW 70.94.651)

(i) Recreational fires. (RCW 70.94.765)

(j) Other outdoor burning. (RCW 70.94.765)

[Statutory Authority: Chapter 70.94 RCW.  92-24-077 (Order 91-57), 173-425-020, filed 12/1/92, effective 1/1/93.  Statutory Authority: RCW 70.94.331.  90-19-062 (Order 90-10), 173-425-020, filed 9/17/90, effective 10/18/90; Order DE 77-19, 173-425-020, filed 10/24/77.  Formerly WAC 18-12-020.]


AMENDATORY SECTION(Amending Order 91-57, filed 12/1/92, effective 1/1/93)

WAC 173-425-030
Definitions.

The definitions of terms contained in chapter 173-400 WAC are incorporated by reference.  Unless a different meaning is clearly required by context, the following words and phrases as used in this chapter shall have the following meanings:

(1) ((Agricultural burning" means burning of vegetative debris from an agricultural operation necessary for disease or pest control, necessary for crop propagation and/or crop rotation, or where identified as a best management practice by the agricultural burning practices and research task force established in RCW 70.94.650 or other authoritative source on agricultural practices.

(2) "Ceremonial fire" means a fire associated with a Native American ceremony or ritual.

(3))) "Agricultural burning" means outdoor burning regulated under chapter 173-430 WAC, including, but not limited to, any incidental agricultural burning or agricultural burning for pest or disease control.

(2) "Air pollution episode" means a period when a forecast, alert, warning, or emergency air pollution stage is declared, as stated in chapter 173-435 WAC.

(3) "Construction/demolition debris" means all material resulting from the construction, renovation, or demolition of buildings, roads, and other man-made structures.

(4) "Department" means department of ecology.

(((4) "Episode" means a period when a forecast, alert, warning, or emergency air pollution stage is declared, as stated in chapter 173-435 WAC.

(5) "Impaired air quality" means a condition declared by the department or a local air authority in accordance with the following criteria:

(a) Meteorological conditions are conducive to an accumulation of air contamination concurrent with:

(i) Particulate that is ten micron and smaller in diameter (PM-10) at or above an ambient level of seventy-five micrograms per cubic meter measured on a twenty-four-hour average; or

(ii) Carbon monoxide at an ambient level of eight parts of contaminant per million parts of air by volume (ppm) measured on an eight-hour average.

(b) Air quality that threatens to exceed other limits established by the department or a local air authority.

(6))) (5) "Fire fighting instruction fires" means fires for instruction in methods of fire fighting, including, but not limited to, training to fight structural fires, aircraft crash rescue fires, and forest fires.

(6) "Firewood" means bare untreated wood used as fuel in a solid fuel burning device, Indian ceremonial fire, or recreational fire.

(7) "Impaired air quality" means a first or second stage impaired air quality condition declared by the department or a local air authority in accordance with WAC 173-433-140.

(8) "Indian ceremonial fires" means fires necessary for Native American ceremonies (i.e., conducted by and for Native Americans) if part of a religious ritual.

(9) "Land clearing burning" means outdoor burning of trees, stumps, shrubbery, or other natural vegetation from land clearing projects (i.e., projects that clear the land surface so it can be developed, used for a different purpose, or left unused). (RCW 70.94.750(2))

(10) "Local air authority" means an air pollution control authority activated ((pursuant to)) under chapter 70.94 RCW that has jurisdiction over the subject source.

(((7) "Nonattainment area" means a clearly delineated geographic area which has been designated by the Environmental Protection Agency and promulgated as exceeding a national ambient air quality standard or standards for one or more of the criteria pollutants, which includes carbon monoxide, fine particulate matter (PM-10), sulfur dioxide, ozone, and nitrogen dioxide.

(8) "Nuisance" means an emission of smoke or other emissions from any open fire that unreasonably interferes with the use and enjoyment of the property deposited on.

(9) "Open burning" means all forms of outdoor burning except those listed as exempt in WAC 173-425-020.

(10))) (11) "Natural vegetation" means unprocessed plant material from herbs, shrubbery, and trees, including grass, weeds, leaves, clippings, prunings, brush, branches, roots, stumps, and trunk wood.

(12) "Nonattainment area" means a clearly delineated geographic area which has been designated by the Environmental Protection Agency because it does not meet (or it contributes to ambient air quality in a nearby area that does not meet) a national ambient air quality standard or standards for one or more of the criteria pollutants, which include carbon monoxide, particulate matter (PM-10 and PM2.5), sulfur dioxide, nitrogen dioxide, lead, and ozone.

(13) "Nonurban areas" means unincorporated areas within a county that are not designated as an urban growth area. (RCW 70.94.745(8))

(14) "Nuisance" means an emission of smoke or any other air contaminant that unreasonably interferes with the use and enjoyment of the property upon which it is deposited. (RCW 70.94.030(2))

(15) "Other outdoor burning" means any type of outdoor burning not specified in WAC 173-425-020 (1) or (2)(a) through (i), including, but not limited to, any outdoor burning necessary to protect public health and safety. (RCW 70.94.650(7) and 70.94.765)

(16) "Outdoor burning" means the combustion of material of any type in an open fire or in an outdoor container without providing for the control of combustion or the control of emissions from the combustion. (RCW 70.94.743(2))

(((11) "Reasonable alternatives" means disposal alternatives to open burning that cost less than eight dollars fifty cents per cubic yard.  After July 1993, this amount shall be adjusted periodically by department policy.

(12) "Recreational fire" means barbecues and campfires, using charcoal, natural gas, propane, or natural wood which occur in designated areas or on private property.  Fires used for debris disposal purposes are not considered recreational fires.

(13) "Silvicultural burning" means burning on any land the department of natural resources protects per RCW 70.94.030(13), 70.94.660, 70.94.690, and pursuant to chapter 76.04 RCW.

(14) "Urban growth area" means an area defined by RCW 36.70A.030.)) (17) "Permitting agency" means the agency responsible for issuing permits (including adopting a general permit) for, and/or enforcing all requirements of this chapter that apply to, a particular type of burning in a given area (unless another agency agrees to be responsible for certain enforcement activities in accordance with WAC 173-425-060 (1)(a) and (6)).

(18) "Pollutants emitted by outdoor burning" means carbon monoxide, carbon dioxide, particulate matter, sulfur dioxide, nitrogen oxides, lead, and various volatile organic compounds and toxic substances.

(19) "Rare and endangered plant regeneration fires" means fires necessary to promote the regeneration of rare and endangered plants found within natural area preserves as identified in chapter 79.70 RCW.

(20) "Reasonable alternative" means a method for disposing of organic refuse (such as natural vegetation) that is available, reasonably economical, and less harmful to the environment than burning.

(21) "Recreational fire" means cooking fires, campfires, and bonfires using charcoal or firewood that occur in designated areas or on private property for cooking, pleasure, or ceremonial purposes. Fires used for debris disposal purposes are not considered recreational fires.

(22) "Residential burning" means the outdoor burning of leaves, clippings, prunings and other yard and gardening refuse originating on lands immediately adjacent and in close proximity to a human dwelling and burned on such lands by the property owner or his or her designee. (RCW 70.94.750(1))

(23) "Silvicultural burning" means outdoor burning relating to the following activities for the protection of life or property and/or the public health, safety, and welfare:

(a) Abating a forest fire hazard;

(b) Prevention of a forest fire hazard;

(c) Instruction of public officials in methods of forest fire fighting;

(d) Any silvicultural operation to improve the forest lands of the state; and

(e) Silvicultural burning used to improve or maintain fire dependent ecosystems for rare plants or animals within state, federal, and private natural area preserves, natural resource conservation areas, parks, and other wildlife areas. (RCW 70.94.660(1))

(24) "Storm or flood debris burning" means the outdoor burning of natural vegetation from storms or floods that have occurred in the previous two years and resulted in an emergency being declared or proclaimed in the area by the city, county, or state government.

(25) "Tumbleweed burning" means outdoor burning to dispose of dry plants (typically Russian Thistle and Tumbleweed Mustard plants) that have been broken off, and rolled about, by the wind.

(26) "Urban growth area" means land, generally including and associated with an incorporated city, designated by a county for urban growth under RCW 36.70A.030.

(27) "Weed abatement fires" means any outdoor burning to dispose of weeds that is not regulated under chapter 173-430 WAC, which applies to agricultural burning.

[Statutory Authority: Chapter 70.94 RCW.  92-24-077 (Order 91-57), 173-425-030, filed 12/1/92, effective 1/1/93.  Statutory Authority: RCW 70.94.331.  90-19-062 (Order 90-10), 173-425-030, filed 9/17/90, effective 10/18/90.  Statutory Authority: Chapters 70.94 and 43.21A RCW.  89-02-055 (Order 88-39), 173-425-030, filed 1/3/89; Order DE 77-19, 173-425-030, filed 10/24/77.  Formerly WAC 18-12-030.]


AMENDATORY SECTION(Amending Order 91-57, filed 12/1/92, effective 1/1/93)

WAC 173-425-040
((Prohibited materials.)) Areas where certain types of outdoor burning are prohibited.

(((1) Except as provided in WAC 173-425-020(2), the following materials shall not be burned in any outdoor fire: Garbage, dead animals, asphalt, petroleum products, paints, rubber products, plastics, paper (other than what is necessary to start a fire), cardboard, treated wood, construction debris, metal or any substance (other than natural vegetation) which when burned releases toxic emissions, dense smoke, or odors.

(2) Prohibited materials may be burned in certain circumstances:

(a) Diseased animals and infested material.  When ordered by a duly authorized health officer and authorized by the department or local air authority, diseased animals and other infested material may be burned, as required, to keep the infestation from spreading.

(b) Dangerous material.  When ordered by a fire protection authority and when authorized by the department or local air authority, fires to dispose of materials presenting a danger to life, property, or public welfare may be burned, if no approved practical alternate method of disposal is available.)) (1) Nonattainment areas. Residential burning and land clearing burning may not be allowed in any areas of the state that exceed federal or state ambient air quality standards for pollutants emitted by outdoor burning. These areas are limited to all current and former nonattainment areas for carbon monoxide, particulate matter (PM-10 and PM2.5), sulfur dioxide, nitrogen dioxide, and lead. However, the department may, in cooperation with any local air authority having jurisdiction, authorize the omission of parts of a nonattainment area if ambient air quality standards for the pollutants that caused the area to be designated nonattainment have not been exceeded in those parts, and outdoor burning in those parts has not contributed, and is not expected to contribute, significantly to exceedances of the standards in the nonattainment area. (RCW 70.94.743 (1)(a))

(2) Urban growth areas. Residential burning and land clearing burning may not be allowed in any urban growth areas after December 31, 2000, except as follows: Residential burning and land clearing burning may be allowed in the following types of urban growth areas until December 31, 2006: (RCW 70.94.743 (1)(b))

(a) Urban growth areas for incorporated cities having a population of less than five thousand people that are neither within nor contiguous with any area identified in subsection (1) of this section; and

(b) Urban growth areas that do not include an incorporated city.

(3) Cities over 10,000. Residential burning and land clearing burning may not be allowed in any cities having a population greater than ten thousand people after December 31, 2000. Cities having this population must be identified by using the most current population estimates available for each city. (RCW 70.94.743 (1)(b))

(4) High density areas. Land clearing burning may not be allowed in any area having a general population density of one thousand or more persons per square mile after December 31, 2000, if the area is contiguous with any area where land clearing burning has already been, or must be, prohibited by that date under subsection (1), (2), or (3) of this section, and it may not be allowed in any other areas having this density after December 31, 2006. All areas having this density must be identified by using the most current population data available for each census block group and dividing by the land area of the block group in square miles. (RCW 70.94.750(2))

(5) Areas with a reasonable alternative to burning. Residential burning, land clearing burning, storm or flood debris burning, tumbleweed burning, weed abatement fires, and other outdoor burning of organic refuse may not be allowed in any area of the state (including any areas or parts of areas identified in subsections (1) through (4) of this section) when a reasonable alternative to burning is found to exist in the area for that type of burning. (RCW 70.94.745(6))

Each local air authority, and the department in cooperation with counties in those areas outside the jurisdictional boundaries of a local air authority, must for each type of burning listed in this subsection (except other outdoor burning of organic refuse) determine by December 31, 2000, and at least every third year after that, whether a reasonable alternative to burning exists in each area within their jurisdiction where that type of burning is allowed. (Whether a reasonable alternative exists for other outdoor burning of organic refuse must be determined on permit-by-permit basis by applying the criteria in (a) through (c) of this subsection.) A reasonable alternative exists in an area if the answers to all three questions below are "Yes" for the specified type of burning in that area:

YesNo
(a) Available. Are any alternative methods for disposal of the organic refuse (e.g., natural vegetation) available for use within the area, including, but not limited to, recycling (e.g., chipping and/or composting), energy recovery or incineration, or landfill disposal?

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(b) Reasonably economical. Is a municipally-sponsored recycling program for disposal of the organic refuse available within fifteen miles, or is any other alternative method for disposal of the organic refuse available within fifteen miles at a cost that is less than or equal to the median of all county tipping fees in the state for disposal of solid waste?

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(c) Less harmful to the environment. Is any available and reasonably economical alternative method for disposing of the organic refuse less harmful to the environment than outdoor burning according to the following hierarchy?:

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Place illustration here.

[Statutory Authority: Chapter 70.94 RCW.  92-24-077 (Order 91-57), 173-425-040, filed 12/1/92, effective 1/1/93.]


AMENDATORY SECTION(Amending Order 91-57, filed 12/1/92, effective 1/1/93)

WAC 173-425-050
((Curtailment during episodes or impaired air quality.)) Other prohibitions/requirements that apply to all outdoor burning.

(((1) No outdoor fire shall be ignited:

(a) Whenever the department declares an air pollution episode for the geographical area pursuant to chapter 173-435 WAC; or

(b) Whenever the department or a local air authority declares impaired air quality for the geographical area.

(2) A person responsible for an outdoor fire at the time an episode or impaired air quality is declared shall extinguish that fire.  Outdoor burning conducted under the auspices of the department of natural resources for the purpose of burning forest slash pursuant to RCW 70.94.660 through 70.94.670 shall be extinguished by withholding new fuel and allowing the fire to burn down.

(3) Smoke visible from all types of outdoor burning, except silvicultural burning, after a time period of three hours has elapsed from the time of declaration of the episode or impaired air quality shall constitute prima facie evidence of unlawful outdoor burning.

(4) For department of natural resource silvicultural burning, smoke visible from outdoor burning after a time period of ten hours has elapsed from the time of declaration of the episode or impaired air quality shall constitute prima facie evidence of unlawful outdoor burning.)) No person may cause or allow an outdoor fire in an area where the type of burning involved is prohibited under WAC 173-425-040, or where it requires a permit under WAC 173-425-060(2), unless a permit has been issued and is in effect. In addition, the following general requirements apply to all outdoor burning regulated by this chapter, including any outdoor burning allowed without a permit under WAC 173-425-060(2), unless a specific exception is stated in this section:

(1) Prohibited materials. The following materials may not be burned in any outdoor fire: Garbage, dead animals, asphalt, petroleum products, paints, rubber products, plastics, paper (other than what is necessary to start a fire), cardboard, treated wood, construction/demolition debris, metal, or any substance (other than natural vegetation) that normally releases toxic emissions, dense smoke, or obnoxious odors when burned, except that: (RCW 70.94.775(1) and Attorney General Opinion 1993 #17)

(a) Fire fighting instruction fires for aircraft crash rescue training fires approved and conducted in compliance with RCW 70.94.650(5) may contain uncontaminated petroleum products. (RCW 70.94.650(6))

(b) The department or a local air authority may allow the limited burning of prohibited materials for other fire fighting instruction fires, including those that are exempt from permits under WAC 173-425-060 (2)(f), and other outdoor burning necessary to protect public health and safety. (RCW 70.94.650(7))

(2) Hauled material. No outdoor fire may contain material (other than firewood) that has been hauled from an area where outdoor burning of the material is prohibited under WAC 173-425-040. Any outdoor burning of material hauled from areas where outdoor burning of the material is allowed requires an appropriate permit under WAC 173-425-060(2), and any use of property for this purpose on an on-going basis, must be limited to the types of burning listed in WAC 173-351-200 (5)(b) (criteria for municipal solid waste landfills) and approved in accordance with other laws, including chapter 173-304 WAC (Minimum functional standards for solid waste handling) and chapter 173-400 WAC (General regulations for air pollution sources). (RCW 70.94.745(6))

(3) Curtailments.

(a) No outdoor fire may be ignited in a geographical area where:

(i) The department has declared an air pollution episode; (RCW 70.94.775(2) and 70.94.780)

(ii) The department or a local air authority has declared impaired air quality; or (RCW 70.94.775(2) and 70.94.780)

(iii) The appropriate fire protection authority has declared a fire danger burn ban, unless that authority grants an exception.

(b) The person responsible for the fire must contact the permitting agency and/or any other designated source for information on the burning conditions for each day.

(c) The person responsible for an outdoor fire must extinguish the fire when an air pollution episode, impaired air quality condition, or fire danger burn ban that applies to the burning, is declared. In this regard:

(i) Smoke visible from all types of outdoor burning, except land clearing burning, after a time period of three hours has elapsed from the time an air pollution episode, impaired air quality condition, or fire danger burn ban is declared, will constitute prima facie evidence of unlawful outdoor burning.

(ii) Smoke visible from land clearing burning after a time period of eight hours has elapsed from the time an air pollution episode, impaired air quality condition, or fire danger burn ban is declared, will constitute prima facie evidence of unlawful outdoor burning.

(4) Unlawful outdoor burning: It is unlawful for any person to cause or allow outdoor burning that causes an emission of smoke or any other air contaminant that is detrimental to the health, safety, or welfare of any person, that causes damage to property or business, or that causes a nuisance. (RCW 70.94.040, 70.94.650(1), and 70.94.780)

(a) Any person affected by outdoor burning may file a complaint with the permitting agency or other designated enforcing agency.

(b) Any agency responding to an outdoor burning complaint should attempt to determine if the burning on any particular property is unlawful. This may include, but is not limited to, considering whether the burning has caused an emission of smoke or any other air contaminant in sufficient quantity to be unlawful.

(c) Any person responsible for such unlawful outdoor burning must immediately extinguish the fire.

(5) Burning in outdoor containers. Outdoor containers (such as burn barrels and other incinerators) used for outdoor burning, must be constructed of concrete or masonry with a completely enclosed combustion chamber and equipped with a permanently attached spark arrester constructed of iron, heavy wire mesh, or other noncombustible material with openings not larger than one-half inch, and they may only be used in compliance with this chapter.

(6) Other general requirements:

(a) A person capable of extinguishing the fire must attend it at all times, and the fire must be extinguished before leaving it.

(b) No fires are to be within fifty feet of structures.

(c) Permission from a landowner, or owner's designated representative, must be obtained before starting an outdoor fire.

[Statutory Authority: Chapter 70.94 RCW.  92-24-077 (Order 91-57), 173-425-050, filed 12/1/92, effective 1/1/93.]


AMENDATORY SECTION(Amending Order 91-57, filed 12/1/92, effective 1/1/93)

WAC 173-425-060
((Open burning program for the state.)) Outdoor burning permit program/requirements.

(((1) General requirements:

(a) All burning requires a permit as covered in WAC 173-425-070.

(b) Permits shall not be issued, and thus open burning is not allowed, in areas where reasonable alternatives are available.  Within ninety days of the effective date, the department shall develop uniform procedures for determining costs of alternatives to open burning.

(c) A fire protection authority may declare a fire hazard in areas where burning is banned and in areas where burning is allowed.  If open burning is determined the most appropriate manner to abate the fire hazard, the request must be reviewed and permitted by the local air authority.  Permits issued under this section shall provide that:

(i) Prohibited material shall not be burned in any fire;

(ii) No open burning shall be done during a declared period of impaired air quality;

(iii) No reasonable alternative is available.

(d) No open burning shall be allowed in areas that exceed federal or state ambient air quality standards.  Such areas shall be defined as carbon monoxide and/or PM-10 nonattainment area, unless otherwise determined pursuant to subsection (2)(a) of this section.

(2) Additional requirements for nonattainment areas.

(a) Phase-out approach.  A local air authority may petition the department to use a phase-out approach in portions of a federally designated nonattainment area for carbon monoxide and/or PM-10.  The phase-out approach will focus on how to achieve the Washington Clean Air Act goals and eliminate burning in areas that exceed the standards.  The department will review and determine if the petition should be approved.  The department may partially approve petitions or approve petitions with conditions based on consideration of the following factors:

(i) Population and population density.

(ii) The ability of the air quality in the region to support open burning based upon geographical and meteorological conditions.

(iii) The presence of a permitting program.

(iv) The extent to which reasonable alternatives to open burning are being developed through solid waste management plans and the schedule for the availability of such reasonable alternatives.

(v) Other factors deemed appropriate by the local air authorities.

(b) Petition evaluation.  The petition to use a phase-out approach is due to the department no later than one month after the effective date of this rule.  A ban is not effective in areas identified in the petition until after the department makes a ruling on the petition.  Upon receiving the petition, the department shall review and make a determination within thirty days.  For all federally designated nonattainment areas, open burning shall be banned by the applicable attainment date.

(c) Permits.  The department or local air authority may issue permits in banned areas for the following activities:

(i) Fire fighting instruction.  Local air authorities or the department may issue permits for fire training fires, pursuant to guidelines and rules of the department of ecology.

(ii) Specific forms.  The department or the local air authorities may permit, with conditions, fires set that are part of a defined research project, weed abatement, and smoke training as part of a military training exercise.

(d) Responding to open burning calls.  Each affected county shall identify a fire marshal or other appropriate county official for field response and to document open burning complaints or violations using appropriate field notices.  In areas where the county has no jurisdiction, the department or the local air authorities will negotiate with the appropriate local agency on field response.

(3) Additional requirements for urban growth areas and cities with a population of ten thousand or more.

(a) Open burning will be banned when reasonable alternatives are available, no later than the end of the year 2,000.

(b) Until open burning is banned, it is allowed subject to the permitting provisions of this chapter.

(c) When open burning is banned, the provisions in subsection (2) of this section apply.)) (1) Permit program.

(a) The department or local air authorities may consult with fire protection authorities, conservation districts, or counties to determine if any of these agencies are capable and willing to serve as the permitting agency and/or enforcing agency for particular types of burning in an area of the state. The department or local air authorities may enter into agreements with any capable agencies to identify the permitting agencies and enforcing agencies for each type of burning and determine the type of permit appropriate for each area where a permit is required. (RCW 70.94.654)

(b) Permitting agencies may use, as appropriate, a verbal, electronic, written, or general permit established by rule, for any type of burning that requires a permit: Provided, That a written permit should be used, where feasible, for land clearing burning, storm or flood debris burning in areas where residential burning and land clearing burning are prohibited under WAC 173-425-040 (1), (2), or (3), and other outdoor burning (except any other outdoor burning necessary to protect public health and safety). (RCW 70.94.745(4))

(c) The rule for a general permit must establish periods of time when any burning under the permit must occur. General permits must also include all appropriate conditions for burning as stated in subsection (4) of this section.

(2) Types of burning that require a permit. Except as otherwise stated, a permit is required for the following types of outdoor burning in all areas of the state under the jurisdiction of this chapter:

(a) Residential burning (except in the nonurban areas of any county with an unincorporated population of less than fifty thousand; (RCW 70.94.745(2))

(b) Land clearing burning; (RCW 70.94.745(2))

(c) Storm or flood debris burning; (RCW 70.94.743 (1)(c))

(d) Tumbleweed burning (except in counties with a population of less than two hundred fifty thousand); (RCW 70.94.745(5))

(e) Weed abatement fires; (RCW 70.94.650 (1)(a))

(f) Fire fighting instruction fires for training to fight structural fires in urban growth areas and cities with a population over ten thousand, and all other fire fighting instruction fires, except fire fighting instruction fires for training to fight structural fires as provided in RCW 52.12.150, aircraft crash rescue fires as provided in RCW 70.94.650(5), and forest fires; (RCW 70.94.650 (1)(b))

(g) Rare and endangered plant regeneration fires; (RCW 70.94.651(1))

(h) Indian ceremonial fires (except on lands within the exterior boundaries of Indian reservations unless provided for by intergovernmental agreement); (RCW 70.94.651(2))

(i) Recreational fires with a total fuel area that is greater than three feet in diameter and/or two feet in height (except in the nonurban areas of counties with an unincorporated population of less than fifty thousand; and (RCW 70.94.765)

(j) Other outdoor burning (if specifically authorized by the local air authority or department). (RCW 70.94.765)

(3) Fees. Permitting agencies may charge a fee for any permit issued under the authority of this chapter: Provided, That a fee must be charged for all permits issued for weed abatement fires and fire fighting instruction fires. All fees must be set by rule and must not exceed the level necessary to recover the costs of administering and enforcing the permit program. (RCW 70.94.650(2) and 70.94.780)

(4) Permit decisions. Permitting agencies must approve with conditions, or deny all outdoor burning permits as needed to achieve compliance with this chapter. All permits must include conditions to satisfy the requirements in WAC 173-425-050, and they may require other conditions, such as restricting the time period for burning, restricting permissible hours of burning, imposing requirements for good combustion practice, and restricting burning to specified weather conditions. Permitting agencies may also include conditions to comply with other laws pertaining to outdoor burning. (RCW 70.94.745, 70.94.750, and 70.94.780)

(5) Establishment of a general permit and requirements for residential burning.

(a) A general permit for residential burning is hereby adopted for use in any area where the department (or a local air authority that has adopted this general permit by reference) and any designated enforcing agencies have agreed that a general permit is appropriate for residential burning, and have notified the public where the permit applies. All burning under this permit must comply with the conditions in (c) of this subsection, and it must be restricted to the first and second weekends (Saturday and Sunday) in April and the third and fourth weekends in October, unless alternative days are substituted by the enforcing agency and adequate notice of the substitution is provided to the public. Alternative days may only be substituted if conditions on the prescribed days are unsuitable due to such things as poor air quality, high fire danger, unfavorable meteorology, likely interference with a major community event, or difficulties for enforcement. (RCW 70.94.745(4))

(b) Local air authorities may also adopt a general permit for residential burning that prescribes a different set of days, not to exceed eight days per year, when any burning under the permit must occur: Provided, That the public must be given adequate notice regarding where and when the permit will apply. (RCW 70.94.745(4))

(c) The following conditions apply to all residential burning allowed without a permit under WAC 173-425-060 (2)(a) or allowed under a general, verbal, or electronic permit:

(i) The person responsible for the fire must contact the permitting agency and/or any other designated source for information on the burning conditions for each day.

(ii) A fire may not be ignited, and must be extinguished, if an air pollution episode, impaired air quality condition, or fire danger burn ban that applies to the burning, is declared for the area.

(iii) The fire must not include garbage, dead animals, asphalt, petroleum products, paints, rubber products, plastics, paper (other than what is necessary to start a fire), cardboard, treated wood, construction/demolition debris, metal, or any substance (other than natural vegetation) that normally releases toxic emissions, dense smoke, or obnoxious odors when burned.

(iv) The fire must not include materials hauled from another property.

(v) If any emission from the fire is detrimental to the health, safety, or welfare of any person, if it causes damage to property or business, or if it causes a nuisance, the fire must be extinguished immediately.

(vi) A person capable of extinguishing the fire must attend it at all times, and the fire must be extinguished before leaving it.

(vii) No fires are to be within fifty feet of structures.

(viii) Permission from a landowner, or owner's designated representative, must be obtained before starting an outdoor fire.

(ix) Any burn pile must not be larger than four feet by four feet by three feet.

(x) Only one pile at a time may be burned, and each pile must be extinguished before lighting another.

(xi) If an outdoor container is used for burning, it must be constructed of concrete or masonry with a completely enclosed combustion chamber and equipped with a permanently attached spark arrester constructed of iron, heavy wire mesh, or other noncombustible material with openings not larger than one-half inch.

(xii) No fire is permitted within five hundred feet of forest slash.

Persons not able to meet these requirements or the requirements in WAC 173-425-050 must apply for and receive a written permit before burning. Failure to comply with all requirements of this subsection voids any applicable permit, and the person responsible for burning may be subject to enforcement action under subsection (6) of this section.

(6) Field response and enforcement. Any agency that issues permits, or adopts a general permit for any type of burning in an area, is responsible for field response to outdoor burning complaints and enforcement of all permit conditions and requirements of this chapter related to that type of burning in the area, unless another agency has agreed under WAC 173-425-060 (1)(a) to be responsible for certain field response or enforcement activities. Except for enforcing WAC 173-425-050 (3)(a)(iii), local air authorities and the department may also perform these activities. Local air authorities or the department will also be responsible for enforcing any requirements that apply to burning that is prohibited or exempt from permits in areas under their jurisdiction, unless another agency agrees to be responsible.

Permitting agencies and enforcing agencies may require that corrective action be taken, and may assess penalties to the extent allowed under their general and specific authorities if they discover noncompliance with this chapter. A fire protection authority called to respond to, control, or extinguish an illegal or out-of-control fire may charge, and recover from the person responsible for the fire, the costs of its response and control action.

[Statutory Authority: Chapter 70.94 RCW.  92-24-077 (Order 91-57), 173-425-060, filed 12/1/92, effective 1/1/93.]


AMENDATORY SECTION(Amending Order 91-57, filed 12/1/92, effective 1/1/93)

WAC 173-425-070
((Open burning permit requirements.)) Variances.

(((1) Permit program.  For areas where burning is allowed, the department, local air authorities, fire protection authorities, conservation districts, or counties may issue permits.  Those issuing permits are responsible for field response to open burning complaints.  Within ninety days of the effective date, the department shall develop minimum standards for a field response program, which addresses training, staffing, funding, and any other elements deemed appropriate by the department.

(2) Permit program development and assistance.

(a) The department shall provide assistance for implementing a permitting program, including minimum standards which address training, staffing, funding, and any other elements deemed appropriate by the department.

(b) The department shall develop a model permit program and provide guidance on starting and implementing permit programs.

(c) In selecting a permit program, the options range from the minimum - a general rule burn, as described in subsection (5) of this section - to a written permit.  A permit program must be in place eight months after the department issues guidelines.  If at that time no agreement is reached, the area becomes a no-burn area and falls under the restrictions of WAC 173-425-060(2).  The department will conduct a joint public hearing with the conservation districts, local air authorities, counties, and fire districts.  The purpose of the hearing is to inform the public that no agreement has been reached.

(d) The department or the local air authorities shall coordinate with the agencies listed in subsection (1) of this section to determine the type of permitting program appropriate for the area.

(3) Fees.  The department or the local air authority may charge a fee to cover the administrative cost of a permit program.  Fire districts, counties, and conservation districts issuing open burning permits may collect a fee to cover administrative costs.  (RCW 70.94.780)

(4) Additional restrictions.  The local air authorities and the department may restrict conditions for burning under this section.  Burning conditions may include, but are not limited to, restricting burning in sensitive areas per chapter 173-440 WAC, restricting the time period for burning, restricting permissible hours of burning, imposing requirements for good combustion practice, and restricting burning to specified weather conditions.

(5) General rule burn permits.  For areas of the state where burning is allowed, agencies listed in subsection (1) of this section may use a general permit by rule.  This section provides a minimum (general rule burn) permit.  Persons not able to meet all of the requirements of (a) through (i) of this subsection must apply for and receive a written permit.  General rule burn permits under this section may be used for the following number of days per year: 1992-1995 - twenty-one days/year; 1995-1998 - fourteen days/year; 1998-2000 - seven days/year; after 2000 -seven days/year.  Failure to comply with all the requirements of (a) through (i) of this subsection voids the general rule burn permit and the person burning is subject to the penalty provisions of WAC 173-425-100.  A person burning under this section must follow these requirements and any additional restrictions, including those established by cities, counties, or fire protection authorities:

(a) The fire must not include prohibited materials listed in WAC 173-425-040, except what paper is necessary to start the fire.

(b) A person capable of extinguishing the fire must attend it at all times and the fire must be extinguished before leaving it.

(c) No fires are to be within fifty feet of structures.

(d) The pile must not be larger than four feet by four feet by three feet.

(e) Only one pile at a time may be burned, and each pile must be extinguished before lighting another.

(f) No outdoor fire is permitted in or within five hundred feet of forest slash without a written burning permit.

(g) Either the designated permitting authority must be called to confirm burning conditions for each day or current information on burning conditions must be obtained from another designated source.

(h) If the fire creates a nuisance, it must be extinguished.

(i) Permission from a landowner, or owner's designated representative, must be obtained before starting an open fire.)) Any person who proposes to engage in outdoor burning may apply to the department or a local air authority for a variance from provisions of this chapter governing the quality, nature, duration, or extent of discharges of air contaminants from the proposed burning. All variance applications must be reviewed, and approved or disapproved, in accordance with RCW 70.94.181. (RCW 70. 94.181)

[Statutory Authority: Chapter 70.94 RCW.  92-24-077 (Order 91-57), 173-425-070, filed 12/1/92, effective 1/1/93.]


AMENDATORY SECTION(Amending Order 91-57, filed 12/1/92, effective 1/1/93)

WAC 173-425-080
((Violations.)) Severability.

(((1) The local air authority or department may issue a notice of violation to the person responsible for the fire under any of the following:

(a) Conditions of a permit issued under this chapter are violated;

(b) Any open fire is ignited where, under this chapter, such fires are prohibited or where a permit is required and has not been obtained;

(c) Prohibited materials are burned in an open fire;

(d) Any open fire is ignited when a condition of impaired air quality or air pollution episode stage is declared;

(e) Any ignited open fire that is not extinguished when a condition of impaired air quality or air pollution episode is declared;

(f) The fire causes emissions detrimental to health;

(g) The fire causes emissions that unreasonably interfere with property use and enjoyment.

(2) A fire protection authority called to respond to, control, or extinguish an illegal or out-of-control fire may charge and recover from the person responsible for the fire the costs of its response and control action.)) The provisions of this regulation are severable. If any provision is held invalid, the application of that provision to other circumstances and the remainder of the regulation will not be affected.

[Statutory Authority: Chapter 70.94 RCW.  92-24-077 (Order 91-57), 173-425-080, filed 12/1/92, effective 1/1/93.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 173-425-090Local air authority may issue variance.
WAC 173-425-100Penalties.
WAC 173-425-110Severability.

Washington State Code Reviser's Office