Preproposal statement of inquiry was filed as WSR 04-13-125.
Title of Rule and Other Identifying Information: Update the current rule on agricultural burning, chapter 173-430 WAC. This chapter establishes the requirements for burning related to agricultural activities in Washington.
Hearing Location(s): On May 23, at 7:00 p.m., in Moses Lake, Big Bend Community College, 7662 Chanute Street N.E., Rooms 1870 A&B; on May 24, at 7:00 p.m., in Spokane, Spokane County WSU/Cooperative Extension, 222 North Havana; on May 24, at 7:00 p.m., in Wenatchee, Wenatchee Valley Museum, 127 South Mission; on May 25, at 7:00 p.m., in Walla Walla, Walla Walla Regional Airport, 310 A. Street, Blue Mountain/Mill Creek Rooms; and on May 30, at 7:00 p.m., in Pullman, WSU Campus, Carpenter Building, Room 102.
Date of Intended Adoption: July 26, 2006.
Submit Written Comments to: Melissa McEachron, Department of Ecology, Air Quality Program, P.O. Box 47600, Olympia, WA 98504-7600, e-mail MMCE461@ecy.wa.gov, fax (360) 407-7534, received by June 9, 2006.
Assistance for Persons with Disabilities: Contact Tami Dahlgren by May 12, 2006, TTY (877) 833-6341 or 711 (360) 407-6800.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposal is to update the current agricultural burning rule to: (1) Incorporate legislative changes and corrections; (2) clarify technical issues and definitions; (3) integrate agreed upon concepts identified in the 9th Circuit Court of Appeals Settlement Agreement; (4) describe the procedures ecology or a local air authority with jurisdiction will use to grant specific permission to burn; (5) specify additional permit and permit application requirements; (6) describe changes to and clarify permitting authority responsibilities; and (7) further spell out the criteria ecology or a local air authority with jurisdiction will use to delegate all or part of the agricultural burning permit program.
The anticipated effect is to have an efficient and effective agricultural burning program that meets the needs of both growers and clean air advocates.
Reasons Supporting Proposal: The reasons supporting this proposal include: (1) Ecology fulfills its responsibilities under the 9th Circuit Court of Appeals Settlement Agreement and under the Administrative Procedure Act; (2) the proposal incorporates legislative changes that have been enacted since 1995; and (3) the proposal also clarifies and provides solutions to several types of technical issues associated with administering an agricultural burning permit program.
Statutory Authority for Adoption: RCW 70.94.650, 70.94.743, and 70.94.745.
Statute Being Implemented: RCW 70.94.650, 70.94.743, and 70.94.745.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Department of ecology, governmental.
Name of Agency Personnel Responsible for Drafting: Melissa McEachron, Lacey, (360) 407-6860; Implementation and Enforcement: Stuart Clark, Lacey, (360) 407-6800.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
I. Executive Summary: The purpose of this rule amendment is to incorporate legislative changes, integrate technical topics and include settlement agreement items related to agricultural burning that have occurred since the development of chapter 173-430 WAC in 1994. The proposed amendments will provide clarifications and slight modifications to agricultural burning program requirements in Washington state. As required under chapter 34.05 RCW, ecology is providing this small business economic impact statement (SBEIS) as part of the rule adopting process.
Historically, every SBEIS completed on chapter 173-430 WAC has found that there are disproportionate benefits to small businesses.1 Burning has many benefits and is a low cost method of handling a variety of agricultural issues including disease, pests, weeds and excess stubble. In some areas, burning may aid in direct seeding practices which is a less soil invasive farming practice than traditional tillage. Additionally, the rule language has been updated to allow burning for "all agricultural products" which, along with recent legislation, may provide additional incentives for biodiesel production in Washington state. One amendment incorporates the "metered burning" system (described in the settlement agreement), which ecology has developed during the past several years. This allows permitting authorities to make burn calls during periods of time when particulate exposure is less likely to occur in populated areas. This amendment reduces the cost impact of the existing rule by allowing agricultural burning to take place while causing minimal effects to public health.
The costs of the rule to small businesses include the burn fee increase proposed for 2008 by the agricultural burning and research task force and additional application documents.
As the following report details, small businesses dominate the industry affected by agricultural burning in Washington state. This analysis estimates potential industry benefits from rule amendments at $7.3 million (detailed in Appendix E). The costs of the rule include fee increases and other burdens and have been determined to disproportionately affect small businesses. Ecology expects that the rule amendments in this analysis will provide net benefits to overall business and will disproportionately benefit small businesses.
II. Legal History: The Washington state legislature established an agricultural burning program in 1991. In following, ecology established rules for a full-scale agricultural burning program that became effective in 1995. Since that time, additional legislation, rule making and litigation related to grass-seed field burning has taken effect. In 1999, a voluntary memorandum of understanding (MOU) agreement with the Washington Association of Wheat Growers to reduce emissions was finalized. Additionally, litigation by Save Our Summers resulted in a 9th Circuit Court of Appeals settlement in November 2001. Ecology initiated rule making to comply with the settlement agreement and fulfill the mandatory regulatory review described in the Washington State Administrative Procedure Act, chapter 34.05 RCW.
III. Description of Changes Created by the Amendments: The majority of the changes in this amendment are required by statute or by the court approved settlement agreement. A crosswalk between the old rule and the amended rule is located in Appendix A. The amendments which rely directly on the statute or court approved settlement agreement are not required to be analyzed under chapter 19.85 RCW and therefore, are not evaluated in this review. The following sections contain amendment components of the rule that provide additional direction beyond the law and court order decisions and therefore, are evaluated in this analysis:
WAC 173-430-030(1), this subsection explains that propane use to remove vegetative material is considered agricultural burning. The law has never been interpreted to allow propane burning to be a basis for avoiding a permit; this addition will clarify the interpretation of the rule language.
WAC 173-430-030(8), the definition of farmer is updated to include any person engaged in the growing or production for sale of any "agricultural product." This will allow agricultural burning by farms that produce products that are inputs for alternative production purposes such as poplar trees used for pulp and paper or seed crop used for biodiesel. This increases access to agricultural burning.
WAC 173-430-040(2), the burn calls and metering amendment incorporates management practices for burning that have developed over the last ten years and in doing so, have moved beyond the straight acreage analysis used in the voluntary memorandum of understanding (MOU). Metering is a technique that uses meteorological conditions and predictions to manage burning within the capacity of an air shed and may allow increased burning on specific days with minimal affect on people. As the air authorities and ecology have determined how to predict when particulates will be disbursed by the wind, the number of allowable acres burned has increased. This information is used to make daily burn calls that define the quantity of allowable acres to burn in a given area. The metering generates information on the success of the burn and determines how the burn call avoided creating exposure impacts. In order to assure that health effects do not increase, the permit authorities must provide metering, data gathering, and annual reporting.2
WAC 173-430-040(3), in this subsection, the burn permit application process has been amended to include a map requirement. This allows the issuers of burn permits to check the burn area more efficiently. As a result, the cost and time required to apply for a burn permit will increase.
WAC 173-430-040(4), this subsection incorporates the maximum fee levels and the authority for fee level changes. The legislature established the authority of fee level changes to the agricultural burning practices and research task force. This section establishes fees set by the agricultural burning practices and research task force that remain below the maximum level by law of $2.50 per acre. The fee will be maintained at the current level of $2 per acre through 2007 and raised to $2.25 from 2008 on. The increase includes the ecology administration fee increase from $0.25 to $0.50 per acre in 2007 and 2008. Additionally, the task force has determined that the research component of the fee will remain at $0.50 per acre in 2006, drop down to $0.25 per acre in 2007 and then rise back up to $0.50 per acre in 2008.
In addition, new fee maximums for orchard tear-out burning are incorporated. According to RCW 70.94.743, outdoor burning of cultivated orchard trees, whether or not agricultural crops will be replanted on the land, shall be allowed as an ongoing agricultural activity, given it has been determined in writing that burning is an appropriate method to prevent or control the spread of horticultural pests or diseases. The fixed fee for orchard tear-out burning permits of up to twenty acres will increase from $25 to $50.
IV. Affected Industry: The dominant economic impact will
occur in North American Industry Classification System 111,
Crop Production; however, the following NAICS codes may be
|115||Support Activities for Agriculture and Forestry|
|Sum of ACRES||YEAR|
|turnip - seed||-||30||-||-||30|
|Sum of ACRES||YEAR|
The permit data provides information on each burn; however, it does not segregate out the costs or gains to individual businesses. The following data provides a summary of four years of activity on the part of individuals applying for permits.
|Applicant Permit Statistics: Fee estimates|
|Number of Acres||Number of Permits||Acres/
|2008 fee increase (Based on 2005 numbers)|
|Employment Basis||Cost||SB $/Emp||LB $/Emp|
Public data on individual companies is limited to seventeen out of three hundred permitees. The fees have been evaluated with both the industry average and public data and it is suspected that calculations based on the industry average are more likely to be valid. If a company is an average small company and pays the average fee increase of $71 and the 6% of large employers pay the same average fee, then the impact is disproportionate to small businesses. Small companies would pay on average $7.51 per employee and an employer with fifty employees would pay $1.42 per employee.
|Cost||SB $/Emp||LB $/Emp|
As a result of the fee increase from $25 to $50 for orchard burning permits up to twenty acres, the impact is disproportionate with respect to acreage as well as employment. Those with burn permits for large acreage will have an average fee increase of $6 where those with small burn permits will have an average fee increase of $25 (see Appendix B).
V. Reducing the Cost Impact: Due to the voluntary MOU, burning had been reduced in half by 2000 in comparison with pre 1998 burning. However, burning increased over the last few years under metered burning (see Appendix C). As such, this amendment would have constituted a "method to reduce costs" under RCW 19.85.030 (2)(f). The amendments, taken together, should reduce costs for most companies.
RCW 19.85.030 provides several options for ecology to reduce costs if it is legal and feasible to do so.
(a) Reducing, modifying, or eliminating substantive regulatory requirements;
This amendment modifies the timing of burning and allows more burning.
(b) Simplifying, reducing, or eliminating record-keeping and reporting requirements;
It is not possible to eliminate substantive requirements related to permitting or burning. The legal requirements in RCW 70.94.650 require a permitting program be established. RCW 70.94.743 and 70.94.745 detail exceptions. The 9th Circuit Court of Appeals settlement is detailed. More recordkeeping including maps and post burn reports are required in order to allow increased burning without creating significant health effects.
(c) Reducing the frequency of inspections;
It is not possible to eliminate substantive requirements related to permitting or burning. The legal requirements found in RCW 70.94.650 require a permitting program be established. RCW 70.94.743 and 70.94.745 detail exceptions. The 9th Circuit Court of Appeals settlement details additional requirements. Excellent compliance facilitates increased burning, which in turn lowers costs.
(d) Delaying compliance timetables;
It is not possible to eliminate substantive requirements related to permitting or burning. The legal requirements of RCW 70.94.650 require a permitting program be established. RCW 70.94.743 and 70.94.745 detail exceptions. The 9th Circuit Court of Appeals settlement details additional requirements. In order to allow more burning, an excellent understanding of the timing of burning is essential. Farmers may not be able to burn on the day that is most convenient, but they will be allowed to burn when it is safe to do so.
(e) Reducing or modifying fine schedules for noncompliance;
It is not possible to eliminate substantive requirements related to permitting or burning. The legal requirements in chapter 70.94 RCW are detailed. Excellent compliance facilitates increased burning.
(f) Any other mitigation techniques.
This rule amendment constitutes mitigation in that it reduces the costs of the existing rule.
VI. Small Business Involvement in Rule Development: Ecology formed an advisory committee in order to included small businesses in the rule drafting phase. The advisory committee included four growers who represented specific crop types and/or grower organizations. In addition, at least one other advisory committee member is a grower although the interested represented was that of the conservation district. Ecology uses several methods to inform growers including: A web-based information system (through LISTSERV), specific e-mail coordination with delegated permitting authorities, ecology air quality program web postings for permit information and forms, and as time allows, presentations at various local meetings. Local air authorities also use a variety of methods including telephone assistance and web-page information.
1 Small business economic impact statement for revisions of chapter 173-403 WAC to limit grass seed field burning emissions, July 24, 1996. Small business economic impact statement for revisions of chapter 173-403 WAC to certify alternatives to grass seed field burning, March 31, 1998.
2 The annual report costs would be attributed to ecology staff time. An estimate would likely be 1/10th of an FTE or 1/10th time for one person working full time: ~ $10,000.
3 The raw data on applications contains duplicate applications. Applications also exceed final burn values. Ecology staff attempted to clean this data to avoid duplication on March 21, 2006.
4 County Business Patterns 2003, Census Bureau NAICS 111.
5 Agricultural Workforce in Washington, 2004, downloaded March 15, 2006, https://www.workforceexplorer.com/admin/uploadedPublications/5435_Ag_Report_2004bdWE.pdf.
A copy of the statement may be obtained by contacting Cathy Carruthers, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6564, fax (360) 407-6989, e-mail CACA461@ecy.wa.gov.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Cathy Carruthers, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6564, fax (360) 407-6989, e-mail CACA461@ecy.wa.gov.
April 13, 2006
AMENDATORY SECTION(Amending Order 94-17, filed 1/17/95, effective 2/17/95)
WAC 173-430-010 Purpose of the regulation. ((
chapter, promulgated under chapter 70.94 RCW, the Washington
Clean Air Act,)) Chapter 70.94 RCW, the Washington Clean Air
Act, declares it is the intent of the state to protect public
health and it is the policy of the state that the
responsibilities and costs of protecting the air resource and
operating state and local air pollution control programs be
shared as equitably as possible among all sources whose
emissions cause air pollution. Some of the sources whose
emissions contribute to air pollution in the state include
industrial sources (large and small), mobile sources such as
vehicles, and area sources such as woodstoves, general outdoor
burning, and agricultural burning. A variety of strategies to
control and reduce the impact of emissions are described
throughout chapter 70.94 RCW, including controls on emissions
created from agricultural burning. The act intends that
public health be protected and also allows for agricultural
burning that is reasonably necessary. The act also requires
that burning be restricted and regulated to address the
potentially competing goals of both limiting air pollution and
allowing agricultural burning. Chapter 70.94 RCW authorizes
the department of ecology and local air authorities to
implement the provisions of that act related to agricultural
burning. This rule establishes controls for agricultural
burning in the state in order to minimize adverse health and
the environment effects from agricultural burning in accord
with the most reasonable procedures to follow in safeguarding
life and property under all circumstances or is reasonably
necessary to carry out the enterprise or both. The control
(1) Establishing a permit program with minimum statewide requirements and specific burn authorizations.
(2) Providing for implementation of a research program to explore and identify economical and practical alternatives to agricultural burning.
(3) Encouraging and developing economically feasible alternative methods to agricultural burning.
(4) Limiting the scope of the rule to agricultural burning and distinguishing between agricultural burning and other types of burning.
(5) Providing for local administration of the permitting program through delegation.
(6) Assessing air quality within a region and incorporating this data into an evaluation tailored to emissions from agricultural burning.
(7) Making use of metering as a component of the agricultural burning permit program. Metering is a technique of limiting emissions from agricultural burning at specific times and places by taking into account potential emission rates, forecasted weather (dispersion), and current and projected air quality.
(8) Using improved and proven technology in evaluating the conditions under which burning is authorized, including those related to meteorology, emissions, and air pollution.
(9) Providing for education and communication.
[Statutory Authority: RCW 70.94.650. 95-03-083 (Order 94-17), § 173-430-010, filed 1/17/95, effective 2/17/95; 93-14-022 (Order 92-58), § 173-430-010, filed 6/28/93, effective 7/29/93. Statutory Authority: RCW 70.94.331. 90-19-062 (Order 90-10), § 173-430-010, filed 9/17/90, effective 10/18/90; Order DE 77-20, § 173-430-010, filed 11/9/77. Formerly WAC 18-16-010.]
(2) Burning of organic debris related to agricultural activities is allowed when it is reasonably necessary to carry out the enterprise. Agricultural burning is reasonably necessary to carry out the enterprise when it meets the criteria of the best management practices and no practical alternative is reasonably available (RCW 70.94.650).
(3) Anyone conducting burning related to agricultural activities must comply with local fire safety laws and regulations, and burn when wind takes the smoke away from roads, homes, population centers, or other public areas.
(4) Burning related to agricultural activities must not occur during an air pollution episode or any stage of impaired air quality. Definitions of air pollution episode and impaired air quality are found in WAC 173-430-030.
(5) Burning of organic debris related to agricultural activities requires a permit and fee, except for agricultural burning that is incidental to commercial activities (RCW 70.94.745). Growers burning under the incidental agricultural burning exception must still notify the local fire department within the area and not burn during an air pollution episode or any stage of impaired air quality. The specific types of burning that qualify as exceptions to the permit requirement are:
(a) Orchard prunings. An orchard pruning is a routine and periodic operation to remove overly vigorous or nonfruiting tree limbs or branches to improve fruit quality, facilitate tree canopy training and improve the management of plant and disease, and pest infestations;
(b) Organic debris along fencelines. A fenceline or fencerow is the area bordering a commercial agricultural field that is or would be unworkable by equipment used to cultivate the adjacent field;
(c) Organic debris along or in irrigation or drainage ditches. An irrigation or drainage ditch is a waterway which predictably carries water (not necessarily continuously) and is unworkable by equipment used to cultivate the adjacent field;
(d) Organic debris blown by wind. The primary example is tumbleweeds.
[Statutory Authority: RCW 70.94.650. 95-03-083 (Order 94-17), § 173-430-020, filed 1/17/95, effective 2/17/95; 93-14-022 (Order 92-58), § 173-430-020, filed 6/28/93, effective 7/29/93. Statutory Authority: RCW 70.94.331. 90-19-062 (Order 90-10), § 173-430-020, filed 9/17/90, effective 10/18/90; Order DE 77-20, § 173-430-020, filed 11/9/77. Formerly WAC 18-16-020.]
(1) Agricultural burning: Means the 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. Propane flaming for the purpose of vegetative debris removal is considered commercial agricultural burning.
(2) Agricultural operation: Means a farmer who can
substantiate that the operation is commercial agriculture by
showing the most recent year's IRS schedule F form or ((
that the land is designated in a classification for
agricultural use)) its corporate equivalent. It also includes
burning conducted by irrigation district or drainage district
personnel as part of water system management.
(3) Ag task force: Means the agricultural burning practices and research task force.
(4) Air pollution episode: Means a period when a forecast, alert, warning, or emergency air pollution stage is declared as described in RCW 70.94.715.
(5) Best management practice: Means the criteria established by the agricultural burning practices and research task force (Ag task force).
(5))) (6) Certify: Means to declare in writing, based
on belief after reasonable inquiry, that the statements and
information provided are true, accurate, and complete.
(6))) (7) Department: Means the department of ecology.
(7))) (8) Farmer: Means any person engaged in the
business of growing or producing for sale any agricultural
product upon their own lands, or upon the land in which they
have a present right of possession, any agricultural product. Farmer does not mean persons (( using such products as
ingredients in a manufacturing process, or persons)) growing
or producing such products primarily for their own
(8) Open)) (9) Impaired air quality: Means a first or
second stage impaired air quality condition declared by
ecology or a local air authority with jurisdiction in
accordance with RCW 70.94.715, 70.94.775, and 70.94.473.
(a) A first stage of impaired air quality is reached when:
(i) Fine particulates are at an ambient level of thirty-five micrograms per cubic meter measured on a twenty-four-hour average; and
(ii) Forecasted meteorological conditions are not expected to allow levels of fine particulates to decline below thirty-five micrograms per cubic meter for a period of forty-eight hours or more from the time that the fine particulates are measured at the trigger level.
(b) A second stage of impaired air quality is reached when:
(i) A first stage of impaired air quality has been in force and not been sufficient to reduce the increasing fine particle pollution trend;
(ii) Fine particulates are at an ambient level of sixty micrograms per cubic meter measured on a twenty-four-hour average; and
(iii) Forecasted meteorological conditions are not expected to allow levels of fine particulates to decline below sixty micrograms per cubic meter for a period of forty-eight hours or more from the time that the fine particulates are measured at the trigger level.
(10) Outdoor burning: Means all forms of burning except those listed as exempt in WAC 173-425-020.
(9))) (11) Permitting authority: Means ecology or its
delegate or a local air authority (( (and the department where
no local air authority exists))) with jurisdiction or
(( their)) its delegate. Conservation districts, counties,
fire districts, or fire protection agencies may receive
delegation for all or portions of the agricultural burning
permit program as identified in a delegation agreement. The
permitting authority will issue agricultural burning permits
for a given locale.
(10))) (12) 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.
[Statutory Authority: RCW 70.94.656. 98-12-016 (Order 97-45), § 173-430-030, filed 5/26/98, effective 6/26/98. Statutory Authority: RCW 70.94.650. 95-03-083 (Order 94-17), § 173-430-030, filed 1/17/95, effective 2/17/95; 93-14-022 (Order 92-58), § 173-430-030, filed 6/28/93, effective 7/29/93. Statutory Authority: RCW 70.94.331. 90-19-062 (Order 90-10), § 173-430-030, filed 9/17/90, effective 10/18/90; Order DE 77-20, § 173-430-030, filed 11/9/77. Formerly WAC 18-16-030.]
(2) For allowed agricultural burning, the department of ecology and local air pollution control authorities with jurisdiction will make daily or specific fire burn calls (during times of anticipated burning) and use metering when necessary to minimize the potential for adverse air quality impacts. Metering is a technique of limiting emission from burning at specific times and places by taking into account potential emission rates, forecasted weather (dispersion), and current and projected air quality. The burn decision process will consider: The potential number of burns and their expected size(s) and duration(s); recent and current ambient concentrations of pollutants; other potential emissions sources; and evaluations and judgments about how foreseeable meteorological conditions will affect concentrations of pollutants in the air sheds.
(a) For the purposes of this section: The smoke management index is a set of conditions that guide the production of certain reports as described in (c) of this subsection and evaluations as described in (d) of this subsection. The smoke management index is not an air quality standard as defined in RCW 70.94.030(4) and further identified in RCW 70.94.331. The smoke management index is not an emission standard as defined in RCW 70.94.030(9) and further identified in RCW 70.94.331. The smoke management index is not an air pollution episode as described in RCW 70.94.710.
(b) Ecology and local air authorities making daily or specific fire burn calls in areas where PM2.5 concentrations are regularly monitored will follow the procedures in (c) of this subsection at the time of making the burn decision whenever either of the following smoke management index conditions exist:
(i) A most recent daily average (twenty-four-hour) PM2.5 concentration was equal to or greater than 16 micrograms per cubic meter. This is division between "good" and "moderate" classifications of the U.S. Environmental Protection Agency's Air Quality Index (AQI) for particulate matter based on the National Ambient Air Quality Standard of 65 micrograms per cubic meter.
(ii) A two-hour rolling average PM2.5 concentration, during the most recent twenty-four to thirty hours was equal to or greater than the regional seasonal average PM2.5 concentration plus 15 micrograms per cubic meter.
(c) In authorizing additional burning, a determination will be documented explaining that the decision to allow additional burning is not expected to result in a further significant deterioration of air quality. The determination will be entered on a standard form noting the date, time, the location of the additional burning, the size of the burn(s), and a brief explanation of the opinion as to why the additional burning is not expected to result in a further, significant reduction of air quality. The purpose of the determination and recordkeeping requirements of this section is to enhance agency and public understanding of the effectiveness of the daily burn and metering decision-making process, and to improve its application over time. A notice of such determinations will be made by ecology or a local air authority with jurisdiction at the time the daily burn decision is communicated. Ecology or a local air authority with jurisdiction will also periodically make the determination forms conveniently available to the public.
(d) Following a determination described in (c) of this subsection and a deterioration of air quality to levels equal to or greater than a two-hour rolling average concentration of the regional seasonal average PM2.5 concentration plus 25 micrograms per cubic meter in the specific area during the twenty hours following such determination, ecology or the local air authority with jurisdiction will evaluate the deterioration and document any findings and opinions regarding why the deterioration occurred. Ecology or the local air authority with jurisdiction will make evaluations under this subsection conveniently available to the public.
(e) Ecology or a local air authority with jurisdiction may evaluate emission dispersion impacts in the regular course of business. In addition, ecology or the local air authority with jurisdiction will produce an annual report summarizing determinations and evaluations pursuant to the smoke management index.
(f) Pursuant to RCW 70.94.473 and 70.94.775, no burning shall be authorized when an air quality alert, warning, emergency or impaired air quality condition has been issued.
(g) For purposes of protecting public health (not eliminating agricultural burning), if an area exceeds or threatens to exceed unhealthy air pollution levels, the permitting authority may limit the number of acres, on a pro rata basis as provided by RCW 70.94.656 and/or by RCW 70.94.650.
(3) Except as described in WAC 173-430-020(5), all agricultural burning requires a permit.
(a) Ecology will provide agricultural burning application forms for agricultural burning.
(b) To qualify for an agricultural burning permit the farmer must be an agricultural operation or government entity with specific agricultural burning needs, such as irrigation districts, drainage districts, and weed control boards.
(b))) (c) A farmer must fill out the information
requested on a permit application (( (or the permit) and
return)), pay the permitting fee, and submit it to the
permitting authority for review and approval prior to burning.
The permitting authority may require the farmer to
fill out an application prior to issuing a permit.
(ii))) The application must describe the reason for
burning and include at least the following information: Name
and address of the person or corporation responsible for the
burn, the specific location (county; legal description:
Range,)) Section, township, range, block and unit number),
the crop type, the type or size of the burn, driving
directions to the burn, specific reason for the burn, the
target date for burning, a map, signature of the responsible
party, and any additional information required by the
permitting authority. Each permitting authority may require
additional information on the application.
(iii))) (ii) All applications must comply with other
state or local regulations.
(c))) (d) The permitting authority must evaluate the
application, (( if there is one,)) and approve the permit prior
(d))) (e) Permit decisions including the issuance,
denial, or conditioning must be based on consideration of air
quality conditions in the area affected by the proposed
burning, the time of year, meteorological conditions, the size
and duration of the proposed burning activity, the type and
amount of vegetative material to be burned, the applicant's
need to carry out such burning, existence of extreme burning
conditions, risk of escape onto property owned by another, and
the public's interest in the environment.
(f) Ecology or its delegate, or a local air agency with jurisdiction, or its delegate must approve or deny the permit based on information in the application.
(g) Ecology and its delegate or a local air ((
(and the department where no local air agency exists))) agency
with jurisdiction or its delegate may issue permits for
appropriate agricultural burning activities in nonattainment
areas, maintenance areas, and urban growth areas as described
in RCW 70.94.743.
(3))) (4) All agricultural burning permits require a
fee. (( After January 1, 1995, the fee is the greater of:
(a) A minimum fee of)) Maximum fee level is set by statute at two dollars and fifty cents per acre (RCW 70.94.650(2)) and is established by the agricultural burning practices and research task force (RCW 70.94.650(4)). The fee is the greater of a minimum fee level or a variable fee level.
(a) Minimum fee levels:
(i) Twenty-five dollars per year per farm based on
burning up to ten acres or equivalent ((
which will be used as
follows: Twelve dollars and fifty cents of which goes to the
agricultural burning research fund and the remainder will be
kept by the permitting authority to cover the costs of
administering and enforcing this regulation; or));
(ii) Fifty dollars for orchard tear-out burning per year per farm based on burning up to twenty acres or equivalent.
A)) The variable fee level (based on the acreage or
equivalent (( of agricultural burning which will be used as
follows: Up to one dollar per acre for applied research,
twenty-five cents per acre for ecology administration and up
to one dollar and twenty-five cents per acre for local permit
(i) Through the calendar year 2007, the fee is two dollars per acre.
(ii) Beginning in calendar year 2008, the fee is two dollars and twenty-five cents per acre.
(c) Permit fee uses. The permit fee is used to off-set the cost of administering and enforcing the agricultural burning permit program. There are three components: Local administration, research, and ecology administration.
(i) Local permitting program administration. ((
portion of the fee shall cover the permitting authority's
costs of administering and enforcing the program.)) The
permitting authority may set the fee as an amount per farm per
year, a set amount per fire, or a set rate no greater than one
dollar and twenty-five cents per acre burned. The permitting
authority must establish this portion of the fee by an
appropriate, public process such as a local rule, ordinance,
or resolution. In areas of the state where the department
(( is the)) has not delegated permitting authority, this
portion of the fee shall be one dollar and twenty-five cents
per acre burned.
(ii) Ecology administration. ((
Another)) This portion of
the fee shall be (( twenty-five cents per acre burned and
cover)) used to off-set the statewide administrative,
education, and oversight costs of the department for the
agricultural burning program. (( The amount (if any) by which
the annual total, of this portion of the fee, exceeds the
annual statewide administrative, education, and oversight
costs shall be deposited in the agricultural burning research
fund of the air pollution control account.))
(iii) Research fund. ((
A final portion,)) The
agricultural burning applied research portion(( ,)) of the fee
shall be no greater than one dollar per acre burned. The
amount assessed may be less than one dollar per acre burned as
periodically determined by the (( Ag)) agricultural burning
practices and research task force based on applied research
needs, regional needs and the research fund budget. (( The
research portion of the fee assessed shall be fifty cents per
acre burned starting in calendar year 1995.)) The (( Ag))
agricultural burning practices and research task force may
also establish discounted assessment rates based on the use of
best management practices.
(c))) (iv) The chart below shows the permit fee
break-out per category:
|Fee Level||Local Administration||Research||Ecology Administration|
|2006 - $2.00 per acre||Up to $1.25 per acre||50 cents per acre||25 cents per acre|
|2007 - $2.00 per acre||Up to $1.25 per acre||25 cents per acre||50 cents per acre|
|2008 and beyond - $2.25 per acre||Up to $1.25 per acre||50 cents per acre||50 cents per acre|
(d))) (e) The agricultural burning practices and
research task force may set acreage equivalents, for nonfield
style agricultural burning practices, based on the amount of
emissions relative to typical field burning emissions. Any
acreage equivalents, established by rule, shall be used in
determining fees. For agricultural burning conducted by
irrigation or drainage districts, each mile of ditch
(including banks) burned is calculated on an equivalent
(4))) (5) All agricultural burning permits must (( be
conditioned)) include conditions intended to minimize air
(a) A farmer must comply with the conditions on the agricultural burning permit.
For purposes of protecting public health (not
eliminating agricultural burning), if an area exceeds or
threatens to exceed unhealthy air pollution levels, the
permitting authority may limit the number of acres, on a pro
rata basis, or as provided by RCW 70.94.656.
(c))) Permits must be conditioned to minimize emissions and impacts insofar as practical, including denial of permission to burn during periods of adverse meteorological conditions. When necessary as determined by ecology or the local air authorities to ensure compliance with the act, permit conditions will include the use of a daily burn decision, permit specific decisions and/or metering.
(c) The permitting authority must act on a complete application (as determined by the agency) within seven days of receipt.
(i) The permitting authority must evaluate the application and approve or deny all or part of it.
(ii) The permitting authority must evaluate the application to determine if the requested burning is within the general or crop-specific best management practices.
(iii) If the application is denied, the reason must be stated.
(6) Additional requirements for burning of field and turf grasses grown for seed.
The department of ecology will proceed with the process to certify alternatives to burning as identified in RCW 70.94.656(3). In addition to the certification process, ecology is also limiting the number of acres allowed to be burned as specified in RCW 70.94.656(4).
(a) Beginning in 1997 and until approved alternatives become available, each farmer shall be limited to burning no more than one-third of the number of acres in grass seed production on May 1, 1996. "In production" means planted, growing and under the control of the farmer.
Without regard to any previous burn permit history, in 1996, each farmer shall be limited to burning the greater of:
(i) Two-thirds of the number of acres the farmer burned under a valid permit issued in 1995; or
(ii) Two-thirds of the number of acres in grass seed production on May 1, 1996. "In production" means planted, growing and under the control of the farmer.
(d) Additional requirements for burning of field and
turf grasses grown for seed. Beginning in 1997 and until
approved alternatives become available, each farmer shall be
limited to burning no more than one-third of the number of
acres in grass seed production on May 1, 1996. "In
production" means planted, growing and under the control of
(e))) (b) Exemptions to ((
additional)) the requirements
for burning of field and turf grasses grown for seed ((( (d)))
(a) of this subsection). A farmer may request an exemption
for extraordinary circumstances, such as property where a
portion(s) of the field is oddly shaped or where the slope is
extremely steep. This provision does not apply to WAC 173-430-045 Alternatives to burning field and/or turf grasses
grown for seed. Under this subsection, relief from the
acreage/emissions reduction requirements of (( (d))) (a) of
this subsection shall be limited to no more than five percent
of the acreage in production on May 1, 1996, and is also
subject to the following provisions:
(i) The exemption request must be certified by an agronomic professional;
(ii) The farmer must be able to show full compliance with
the emissions reductions in ((
(d))) (a) of this subsection for
the acreage not exempted; and
(iii) The farmer must be in full compliance with permit requirements for other crops under WAC 173-430-040.
(f))) (c) Measurement for emission reduction for grass
seed field and turf grass. Ecology will use acres as the
basis for determining emission reductions as provided by RCW 70.94.656, until another method(s) is shown to be better and
meets with the intent of RCW 70.94.656(4). Ecology will
investigate alternate methods, as they become available. If
ecology finds that an alternate method is appropriate and
meets the criteria, it may certify this method using an
(d) The department of ecology or local air authority may
provide for trading of permits using the method described in
(f)(i), (ii), (iii), (iv), (v), and (vi) of)) this
subsection. This trading system uses a straight transfer of
acres, a transfer requiring mandatory compensation, or a
combination of both. If ecology or the local air authority
finds that emissions resulting from trading are creating a
health impact, as defined by ecology or the local air
authority, the trading system, once created, may be dissolved.
This provision does not apply to WAC 173-430-045 Alternatives
to burning field and/or turf grasses grown for seed.
(i) Ecology or the local air authority may develop a system that allows the trading of permits by:
(A) Adding a signed transfer line to the written permit that provides for a signature for the current holder of the permit;
(B) Providing a tracking system that identifies the current holder of the permit, that identifies when the permit was last used to allow burning of acreage, and that allows the name of the holder to be changed if the transfer line is signed by the current holder;
(C) Requiring that the new holder of the permit must turn in the permit with the signed transfer line at least sixty days before the new holder plans to burn; and
(D) Assuring that the permits are used only once in a calendar year.
(ii) By signing the transfer line on the permit the permit holder must indicate that he or she understands that the acres transferred may no longer be burned, that a permit for the acres transferred will not be issued to the signing permit holder in future years, and that the acres being transferred were not already burned during the calendar year during which the transfer takes place.
(iii) Ecology and the local air authorities may add restrictions to the transfer of permits closer to areas with higher population densities.
(iv) Only permits for acreage which has not yet been burned may be transferred or traded. The seller of the permit is responsible for permanently reducing the acreage burned by the amount of acreage transferred from January 1 of the year during which the transaction takes place.
(v) Acreage that is exempted under (e) of this subsection is not eligible for the trading system.
(vi) The authorities are encouraged to work together to use the same system and to allow trading between authority jurisdictions so as to allow the grass seed growers to adjust to the two-thirds overall reduction in acres permitted for burning as easily as possible.
(g) Measurement for emission reduction for grass seed
field and turf grass. Ecology will use acres as the basis for
determining emission reductions as provided by RCW 70.94.656,
until another method(s) is shown to be better and meets with
the intent of RCW 70.94.656(4). Ecology will investigate
alternate methods, as they become available. If ecology finds
that an alternate method is appropriate and meets the
criteria, it may certify this method using an administrative
(h))) (e) Alternate open burning practices for field and
turf grass grown for seed. Ecology acknowledges that there
may be practices that involve some burning, but which produce
emissions quantifiably below those of open field burning. If
ecology finds that a practice involves open burning and still
substantially reduces emissions below open field burning,
ecology may certify the alternate burning practice(s) by
administrative order. Any certified practice may be used to
satisfy the acreage/emissions reduction requirements of
(d))) (a) of this subsection provided:
(i) The acreage application of the practice is adjusted
to reflect effectiveness in reducing emissions so as to meet
or exceed the emissions reduction required by ((
(d))) (a) of
this subsection; and
(ii) In no case shall the emission reduction requirement
for the field and turf grass grown for seed be less than that
required in ((
(d))) (a) of this subsection.
(5))) (7) Other laws. A farmer must obtain any local
permits, licenses, or other approvals required by any other
laws, regulations, or ordinances. The farmer must also honor
other agreements entered into with any federal, state, or
[Statutory Authority: RCW 70.94.656. 98-12-016 (Order 97-45), § 173-430-040, filed 5/26/98, effective 6/26/98. Statutory Authority: RCW 70.94.656(4). 97-03-021 (Order 96-05), § 173-430-040, filed 1/7/97, effective 2/7/97. Statutory Authority: RCW 70.94.650. 95-03-083 (Order 94-17), § 173-430-040, filed 1/17/95, effective 2/17/95; 93-14-022 (Order 92-58), § 173-430-040, filed 6/28/93, effective 7/29/93. Statutory Authority: RCW 70.94.331. 90-19-062 (Order 90-10), § 173-430-040, filed 9/17/90, effective 10/18/90; Order DE 77-20, § 173-430-040, filed 11/9/77. Formerly WAC 18-16-040.]
(2) No less than every two years, the Ag task force will
annually)) review research needs and submitted proposals and
make its recommendations to the department.
[Statutory Authority: RCW 70.94.650. 95-03-083 (Order 94-17), § 173-430-060, filed 1/17/95, effective 2/17/95; 93-14-022 (Order 92-58), § 173-430-060, filed 6/28/93, effective 7/29/93. Statutory Authority: RCW 70.94.331. 90-19-062 (Order 90-10), § 173-430-060, filed 9/17/90, effective 10/18/90; Order DE 77-20, § 173-430-060, filed 11/9/77. Formerly WAC 18-16-060.]
(1) Permits must include the following general conditions:
No burning)) Do not burn at night (( except)) unless
it is specified as a best management practice;
Complying)) Comply with all fire safety regulations
of the local fire protection agency including any no-burn
directives (( they)) it may issue;
Calling)) Call the local air authority burning
information line (if there is one) before lighting the fire;
Burning)) Burn only during times specified by the
(e) Burn when wind takes the smoke away from roads, homes, population centers, or other public areas, to the greatest extent possible;
(e) No burning)) (f) Do not burn when adverse
meteorological conditions exist;
(f) Burning)) (g) Burn only natural vegetation;
(g) No burning or adding)) (h) Do not burn or add fuel
during any stage of an air pollution episode or local air
quality burning ban;
(h) Attending)) (i) Attend the fire at all times;
(j) Submit a postburn report to the permitting authority.
(2) If the permitting authority determines a specific situation will cause a nuisance under chapter 173-400 WAC or RCW 70.94.640, agricultural burning will not be allowed.
[Statutory Authority: RCW 70.94.650. 95-03-083 (Order 94-17), § 173-430-070, filed 1/17/95, effective 2/17/95; 93-14-022 (Order 92-58), § 173-430-070, filed 6/28/93, effective 7/29/93. Statutory Authority: RCW 70.94.331. 90-19-062 (Order 90-10), § 173-430-070, filed 9/17/90, effective 10/18/90; Order DE 77-20, § 173-430-070, filed 11/9/77. Formerly WAC 18-16-070.]
(1))) (2) The permitting authority must act on a
complete application (as determined by (( the agency)) ecology
or a local air authority with jurisdiction) within seven days
(a) Local air authorities and ecology delegated authorities are required to use applications and permits supplied by ecology.
(b) A map is required to accompany all permit applications.
(i) The map must accurately depict the topography of the area where the requested burn would take place and include roads, landmarks, etc.
(ii) The map must accurately show affected acreage to be burned.
(iii) The map must show the position of the field within each section the field occupies, down to the 1/4 - 1/4 section. All four border lines of each section shall be outlined with the section number, township, and range clearly marked.
(c) The permitting authority must evaluate the application and approve or deny all or part of it.
(b))) (d) The permitting authority must evaluate the
application to determine if the requested burning is within
the general or crop-specific best management practices.
(c))) (e) If the application is denied, the reason must
(2))) (3) Permitting authorities must issue permits
where appropriate on complete applications. Delegated
permitting authorities may issue permits when agreed to as
part of the delegation agreement.
(4) Permitting authorities must determine day-to-day burning restrictions near populated areas and arrange for dissemination of the results. Delegated permitting authorities must arrange for assisting in dissemination of results.
(3))) (5) The permitting authority or its delegate is
responsible for responding to agricultural burning complaints.
(4))) (6) The permitting authority must collect the fee
and determine the local administration portion of the fee, and
(a) Permitting authorities must issue a permit fee refund when a farmer decides to burn fewer acres than identified in the permit on confirmation by the permitting authority. The refund request deadline must be included on the permits.
(b) Local air authorities and delegated permitting authorities must formally adopt the local administration portion of the fee through rule, regulation, ordinance, or resolution.
(5) The permitting authority must)) (7) Delegated
permitting authorities must provide ecology with copies of all
permits and supporting documentation and transfer the research
and ecology administration portion of the fee to the
Funds should be transferred twice a year or as
designated in the delegation agreement.
(b))) Local air authorities and delegated permitting authorities must transfer funds twice a year by July 15 and January 15.
(b) Local air authorities and delegated permitting authorities must provide ecology copies of all permits, applications with supporting documentation, maps, and postburn reports. All spring (January-June) permits need to be provided by July 15th and all fall (July-December) permits by January 15th.
(c) The department must deposit all agricultural burning
permit fees in the air pollution control account. Permitting
authorities may deduct the local administration portion before
forwarding the remainder to the department. ((
The portion of
the fee designated for research shall be deposited in a
special account in the air pollution control account.
(6))) (8) The permitting authority must coordinate compliance. Violations are subject to the remedies of chapter 70.94 RCW, Washington Clean Air Act.
(9) The permitting authority or its delegate must require a postburn report for all permits.
(10) The permitting authority or its delegate must utilize the web-based data base.
(a) Local air authorities and its delegates must make arrangements with ecology to enter information into the web-based data base.
(b) Ecology-delegated permitting authorities must attend a minimum of one data base training per calendar year or as provided by ecology.
[Statutory Authority: RCW 70.94.650. 95-03-083 (Order 94-17), § 173-430-080, filed 1/17/95, effective 2/17/95; 93-14-022 (Order 92-58), § 173-430-080, filed 6/28/93, effective 7/29/93. Statutory Authority: RCW 70.94.331. 90-19-062 (Order 90-10), § 173-430-080, filed 9/17/90, effective 10/18/90; Order DE 77-20, § 173-430-080, filed 11/9/77. Formerly WAC 18-16-080.]
(2) When ecology or a local air authority ((
department where no local air authority exists))) with
jurisdiction finds that a county, fire protection agency or
conservation district is capable of administering the permit
program and desires to do so, it may delegate by
administrative order the administration and/or enforcement
authority of the program. Delegation criteria include:
(a) Demonstrating that the responsibilities listed under
permitting authority responsibilities section can be
(b) Employing, contracting with, or otherwise accessing someone educated and trained in agronomics;
(c) Providing a copy of the ordinance adopting the local administration portion of the fee;
(d) Providing a copy of agreements between counties, fire districts, and conservation districts when more than one agency will have responsibilities for the agricultural burning program; and
(e) Agreeing to periodic audits and performance reviews.
(3) Delegation may be withdrawn if the department or the local air authority with jurisdiction finds that the agricultural burning program is not effectively being administered and/or enforced. Before withdrawing delegation, the delegated agency shall be given a written statement of the deficiencies in the program and a compliance schedule to correct program deficiencies. If the delegated agency fails to correct the deficiencies according to the compliance schedule, then the department or the local air authority may withdraw delegation.
(4) Permitting authorities must work through agreement with counties (if the county is not the permitting authority) and cities to provide convenient methods for evaluating applications, issuing permits and granting permission to burn.
Once a delegation order has been issued, ecology or the local air authority with jurisdiction must approve of any changes to the agreement prior to implementation.
[Statutory Authority: RCW 70.94.650. 95-03-083 (Order 94-17), § 173-430-090, filed 1/17/95, effective 2/17/95.]