PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 10-09-103.
Title of Rule and Other Identifying Information: Department of ecology (ecology) will update chapter 173-430 WAC, Agricultural burning, to:
• Adjust the 2011 field burning fee to cover the costs
of administering and enforcing the permit programs,
• Change the pile burning fee to a per ton fee rather than a per acre fee,
• Adopt a process for adjusting agricultural burning fees in the future,
• Address the finding in Ted Rasmussen Farms, LLC v. State of Washington, Department of Ecology, Docket # 22989-1-III (Rasmussen v. Ecology),
• Make housekeeping changes for consistency.
Hearing Location(s): Columbia County, Rural Library District, 111 South 3rd Street, Dayton, WA, on August 26, 2010, at 7 p.m.; and at the Wenatchee Public Library, 310 Douglas Street, Wenatchee, WA, on September 2, 2010, at 6 p.m.
Date of Intended Adoption: November 10, 2010.
Submit Written Comments to: Richelle Perez, P.O. Box 47600, Olympia, WA 98504-7600, e-mail Richelle.Perez@ecy.wa.gov, fax (360) 407-7528, by September 9, 2010.
Assistance for Persons with Disabilities: Contact Tami Dahlgren at (360) 407-6830, by August 19, 2010. Persons with hearing loss, call 711 for Washington relay service. Persons with a speech disability, call 877-833-6341.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule adopts the fees as determined by the agricultural burning practices and research task force (task force) based on the new fee structure established in RCW 70.94.6528. For pile burning, the rule changes fees to a per ton basis from a per acre. For field burning, the rule increases the fee. Field burning fees remain on a per acre basis. Additionally, it adopts a process for adjusting the fees within the caps in the future. Finally, this rule making includes some minor changes for consistency with the authorizing statue [statute] and the findings in the Rasmussen v. Ecology court case.
Reasons Supporting Proposal: The legislature authorizes ongoing agricultural burning fee increases until the fee reaches the $3.75 cap per acre for field burning and $1.00 per ton for pile burning. According to statute, the task force determines fees within these caps.
SSB 6556 (2010) introduced a per-ton fee for pile burns to replace the per-acre fee. The volume of piled material burned exceeds the volume of crop residue from a field of the same size. So, this fee structure provides a closer link to the amount of the fee and the quantity of material burned. Rasmussen v. Ecology requires ecology to remove language it found as outside of ecology's regulatory authority.
Statutory Authority for Adoption: Chapter 70, Laws of 2010 (SSB 6556) authorizes ongoing fee increases until the fee reaches the cap, RCW 70.94.6528.
Statute Being Implemented: RCW 70.94.6528.
Rule is necessary because of state court decision, Ted Rasmussen Farms, LLC v. State of Washington, Department of Ecology, Docket # 22989-1-III.
Name of Proponent: Department of ecology, governmental.
Name of Agency Personnel Responsible for Drafting: Richelle Perez, Lacey, Washington, (360) 407-7528; Implementation and Enforcement: Karen Wood, Spokane, Washington, (509) 329-3469.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
• Adjust the field burning fee to cover the costs of
administering and enforcing the permit programs.
• Change the pile burning fee to a per-ton fee rather than a per-acre fee.
• Address the finding in Ted Rasmussen Farms, LLC v. State of Washington, Department of Ecology, Docket # 22989-1-III (Rasmussen v. Ecology), by removing a section of the existing rule that is beyond ecology's regulatory scope.
• Make housekeeping changes for consistency with the authorizing statute.
The rule making was authorized by both existing law and
by SSB 6556 (passed in 2010). The legislature authorizes
ongoing agricultural burning fee increases until the fee
reaches the $3.75 cap per acre for field burning, and the $1
cap per ton for pile burning. RCW 70.94.6528 (6)(b) directs
the task force to determine fees at a level to, "cover the
cost of administering and enforcing the programs" and provide
research funds.
Ecology calculated cost-to-employment ratios to examine the relative impacts of the proposed rule on small versus large businesses overall and in each industry likely affected. Other measures of business ability to cope with compliance costs (sales, hours of labor) were not sufficiently available for the representative set of permittees.
Median ratios of total cost to employment ranged from $0.11 per employee for the largest businesses, to $15.29 for small business. It is clear from these ratios that the proposed rule creates a disproportionate impact on small business, as based on employment rolls. This means ecology must make reasonable effort to mitigate these disproportionate impacts.
Ecology had limited scope in reducing the disproportionate impact of the proposed rule on small businesses. Fees were determined by the task force, and could thus not be reallocated or adjusted for small versus large businesses. Ecology was not able to include additional actions to reduce small business impacts in the proposed rule. Ecology did, however, include multiple representatives of small business in the task force decision process (see Section 5).
Ecology extensively involved businesses in the development of the proposed rule, including small businesses. Ecology involved the business community, and especially those businesses that might be disproportionately impacted by regulation, because they provide unique input into the views of the regulated community.
In particular, several members of the task force represent farmers, a diverse set of primarily small businesses. The Wheat Growers, Alfalfa Growers, and Tree Fruit Growers associations have representatives on the task force.
Ecology estimated that the proposed rule could result in the loss of three jobs each year in the Washington state economy.
Note: Due to size limitations relating to the filing of documents with the code reviser, the small business economic impact statement does not contain a fully detailed explanation of ecology's analysis. The cost-benefit analysis (ecology publication #10-02-014) contains full details of the analysis, including additional contextual information and methodology.
Section 1: Introduction and Background: Based on research and analysis required by the Regulatory Fairness Act, RCW 19.85.070, ecology has determined that the proposed rule amendments (chapter 173-430 WAC) have a disproportionate impact on small business. Therefore, ecology included cost-minimizing features in the rule where it is legal and feasible to do so.
This document presents the background for the analysis of impacts on small business relative to other businesses, the results of the analysis, and cost-mitigating action taken by ecology. It is intended to be read with the associated cost-benefit analysis (ecology publication #10-02-014), which contains more in-depth discussion of the analyses.
A small business is defined as having fifty or fewer employees.
History: The Clean Air Washington Act of 1991 (chapter 70.94 RCW) regulates multiple air quality standards and practices in Washington. Among these is outdoor burning - including agricultural burning. Chapter 173-430 WAC, Agricultural burning, implements the Clean Air Act. It defines fees, best management practices, fee use and research, delegation authority, and permit conditions and procedures.
Regulatory Baseline: The regulatory baseline is the way agricultural burning would be done if the proposed rule is not adopted - that is, the existing laws and rules at various jurisdictional levels that determine how agricultural burning is regulated and performed now. The baseline does not include, however, guidance and common practices that, while they are commonly used in agricultural burning, are not technically a legal requirement.
Under the current law and its implementing rule (chapters 70.94 RCW and 173-430 WAC, respectively) entities such as, but not limited to, businesses, individuals, governments, and other organizations must have an agricultural burning permit to do any agricultural burning.
While it is legal to burn for approved agronomic reasons with a permit, it is not legal to allow smoke to impact others. The agricultural burning of field crop residue and orchard tear out residue can directly impact the safety and health of citizens breathing the smoke-filled air. See chapter 2 for further discussion of the avoided health costs that result from regulation of agricultural burning and smoke.
To help reduce smoke-related environmental and health concerns, the department of ecology's eastern and central Washington burn teams make a daily burn/no-burn decision called the "burn call" for agricultural burning permit holders. The burn call provides daily current and forecasted air quality conditions and burn decisions to the public and business. This information is available on-line, by phone, or through listserv.
Agricultural Burning Practices and Research Task Force: The task force is established by RCW 70.94.6528 of the Washington State Clean Air Act. The goal of the task force is to work toward a reduction in air pollution emissions from agricultural burning. The task force, which is chaired by the department of ecology, is represented by many different interests. The representatives include:
• Eastern Washington local air authorities.
• The agricultural community.
• The department of agriculture.
• Local universities or colleges.
• Public health.
• Conservation districts.
The task force is empowered by the Clean Air Act to
develop best management practices (BMP) to reduce air
emissions from agricultural activities, determine the level of
permit fees, and identify research opportunities.
Agricultural Burn Permits: Ecology requires a permit for all types of agricultural burning, with the exception of:
• Orchard prunings.
• Organic debris along fence lines or irrigation or drainage ditches.
• Organic debris blown by the wind.
Burn permits are issued at the local level by ecology, a
local air authority, or a delegated permitting authority
(e.g., a county or conservation district). Ecology provides
access to burn zone maps outlining these areas.
Only complete applications are processed by the relevant permitting agency. Incomplete applications are denied. Complete applications include all of the following:
• A completed permit application.
• A map of the area to be burned.
• A fee payment.
Agricultural burn permits in Asotin, Garfield, Columbia,
Walla Walla, Franklin, Adams, Grant, or Whitman counties are
processed through local conservation districts:
• Adams Conservation District.
• Asotin Conservation District.
• Columbia Conservation District.
• Franklin Conservation Department.
• Garfield; Pomeroy Conservation District.
• Grant Conservation District.
• Othello Conservation District.
• Walla Walla Conservation District.
• Palouse Conservation District.
• Palouse Rock Lake Conservation District.
• Pine Creek Conservation District.
• Whitman Conservation District.
Agricultural burn permits in western Washington, or in
Benton, Yakima, or Spokane counties are processed by local air
agencies:
• Benton Clean Air Agency.
• Northwest Clean Air Agency.
• Olympic Region Clean Air Agency.
• Puget Sound Clean Air Agency.
• Southwest Clean Air Agency.
• Spokane Regional Clean Air Agency.
• Yakima Regional Clean Air Agency.
Agricultural burn permits for land on Indian reservations
are processed through tribal governments. Burning in all
other areas is processed directly through ecology.
There are separate permit applications for field burning, pile burning, spot burning, and bale burning.
Best Management Practices: Applicants must use BMPs as identified by the state's task force to complete their application. Agricultural burning is allowed when it is reasonably necessary to carry out the enterprise. A permit applicant can show burning is reasonably necessary when it meets the criteria of the BMPs and no practical alternative exists. BMPs are one of the ways to demonstrate the need to burn. Permit applicants not using BMPs must establish that their proposed burn is reasonably necessary and that no practical alternative is available. The burden of proof is on the grower, and the demonstration must satisfy the local clean air authority with jurisdiction, or the department of ecology and the local delegated permitting authority, if there is a local permitting authority.
Permit Fees: The existing rule lists fees for different types of agricultural burning. Fees are determined by the type of burning, as well as the size of the permitted burn area. Under the baseline, agricultural burning fees are:
• Field burn permits are a minimum of $25, or $2.25
per acre, whichever is more.
• Spot burn permits are a flat fee of $25 (minimum field burning fee).
• Bale burn permits are a flat fee of $25 (minimum field burning fee).
• Orchard burn permits are a minimum of $50, or $2.25 per acre, whichever is more.
Permit fees fund program activities, including
administration and smoke management, as well as research in
the field of agricultural burning.
Changes under the Proposed Rule: In this rule making, ecology is proposing updates to chapter 173-430 WAC to:
• Adjust the field burning fee to cover more of the
costs of administering and enforcing the permit
programs.
• Change the pile burning fee to a per-ton fee rather than a per-acre fee.
• Address the finding in Ted Rasmussen Farms, LLC v. State of Washington, Department of Ecology, Docket # 22989-1-III (Rasmussen v. Ecology), by removing a section of the existing rule that is beyond ecology's regulatory scope.
• Make housekeeping changes for consistency with the authorizing statute.
The rule making was authorized by both existing law and
by SSB 6556 (passed in 2010). The legislature authorizes
ongoing agricultural burning fee increases until the fee
reaches the $3.75 cap per acre for field burning, and the $1
cap per ton for pile burning. RCW 70.94.6528 (6)(b) directs
the task force to set fees at a level to, "cover the cost of
administering and enforcing the programs" and provide research
funds.
Proposed Fees and Changes to Pile Burning (Mostly Orchard Tear-out): Current fees cover only about twenty-five percent of costs, according to internal review of budget records. Increasing fees would bring the program closer to cost recovery. Since the state's general fund deficit could limit the amount of money available to subsidize the program, an agricultural burning permit program that pays for itself may prevent cuts to the program, and limit resulting cuts to services provided to farms, businesses, and the public - especially in terms of allowable burn days.
Additionally, SSB 6556 introduced a per-ton fee for pile burns to replace the per-acre fee. The volume of piled material burned exceeds the volume of crop residue from a field of the same size. A per-ton fee structure provides a closer link between the size of the fee and the amount of material burned.
The proposed fee schedule is:
• Field burn permits are a minimum of $30 for the
first 10 acres, plus $3 per additional acre.
• Spot burn permits are a flat fee of $30 for up to 10 acre.
• Pile burn permits are a minimum of $80 for the first 100 tons, plus fifty cents per additional ton.
This rule making evaluated the options for setting the
fees in 2012 and later, and determined that the preferred
process (as proposed in the rule) is regular review and public
input to fee setting. Ecology chose this option over
inclusion of a set fee structure or tying of fees to an index
measure of growth, such as an inflation index.
Rasmussen v. Ecology: Rasmussen v. Ecology1 requires ecology to remove language from the existing rule that the court found to be outside of ecology's regulatory authority. The proposed rule eliminates the identified language.
Housekeeping and Clarification: Finally, the proposed rule clarifies language and the structure of the rule to facilitate understanding of the requirements, and in turn, compliance with the rule.
Analytical Scope Comments: Ecology is proposing raising fees to a level determined by the task force. While the level of fees determined for each type of agricultural burning is technically exogenous to the proposed rule (determined by the task force; not determined independently by ecology), ecology is the chair of the task force, and has chosen to propose the higher fees set by the task force in rule.
Ecology is only required to analyze rule amendments in which ecology had discretion. Because the proposed fees were determined by the task force, it is somewhat ambiguous the extent to which task force decisions are within ecology's discretion. Ecology is the entity amending the rule and officially proposing the fees, but they were not determined by ecology alone, but rather by the task force. Despite this minor ambiguity, ecology believes that it will benefit readers of this document to include the impacts of the overall rule changes.
Section 2: Compliance Costs for Washington Businesses: The primary compliance cost to Washington businesses arising from the proposed rule is an increase in agricultural burn permit fees for some permit holders. Ecology estimated fees for existing permittees under both the baseline (existing) fee schedule, and the proposed fee schedule in the proposed rule.
This generated a range of impacts between a $5 increase in fees and an increase of approximately $2,400. The largest increases occurred for field burning permits with the largest acreage, those permittees with multiple permits, and for large orchards that would pay by the ton rather than by acreage under the proposed rule.
Calculations for fees for each permittee were based on data from existing permits on the type of permitted burn and the associated acreage. Ecology used a conservatively large measure of twenty tons per acre of orchard burning, based on professional expertise and experience. For each permittee, where an associated business was apparent, ecology assigned an identifier of industry using the North American industry classification system (NAICS). For those permittees without an apparent associated business, ecology conservatively assumed that the distribution of industries across those permittees was the same as the distribution of industries across known businesses with agricultural burn permits.
Each industry is associated with a distribution of business sizes, based on data from the Washington state employment security department. These employer sizes were then used to calculate the ratios of costs (fee increase) to number of employees for each industry. The results were evaluated comparing small businesses for each industry to the largest ten percent of businesses.
Section 3: Quantification of Costs and Ratios: Ecology quantified all costs for which reliable data and analytic methods were available. Changes in compliance costs arising from increased permit fees for some permittees ranged from zero to nearly $2,400 at the individual permit level. Across all likely impacted permittees represented, ecology estimated the total cost to be approximately $119 thousand.
Total Cost-to-Employment Ratios: Ecology calculated cost-to-employment ratios to examine the relative impacts of the proposed rule on small versus large businesses overall and in each industry likely affected. Other measures of business ability to cope with compliance costs (sales, hours of labor) were not sufficiently available for the representative set of permittees.
Median ratios of total cost to employment ranged from $0.11 per employee for the largest businesses, to $15.29 for small business. It is clear from these ratios that the proposed rule creates a disproportionate impact on small business, as based on employment rolls. This means ecology must make reasonable effort to mitigate these disproportionate impacts. Table 1 shows the distribution of cost per employee at the median employment level across industries.
| TABLE 1: Cost per Employee by Industry (Annual) | ||||||||
| NAICS GROUP | AVERAGE EMPLOYMENT -- SMALL | AVERAGE EMPLOYMENT -- LARGEST 10% | AVERAGE IMPACT -- SMALL | AVERAGE IMPACT -- LARGEST 10% | ||||
| 111 | 5 | 503 | $12.60 | $0.12 | ||||
| 112 | 6 | 78 | $10.44 | $0.75 | ||||
| 113 | 4 | 64 | $14.62 | $0.92 | ||||
| 115 | 5 | 526 | $10.75 | $0.11 | ||||
| 238 | 4 | 321 | $13.05 | $0.18 | ||||
| 311 | 15 | 451 | $3.85 | $0.13 | ||||
| 339 | 7 | 357 | $8.90 | $0.16 | ||||
| 424 | 8 | 392 | $7.45 | $0.15 | ||||
| 451 | 9 | 96 | $6.78 | $0.61 | ||||
| 453 | 6 | 217 | $9.61 | $0.27 | ||||
| 531 | 4 | 373 | $15.29 | $0.16 | ||||
| 532 | 7 | 146 | $8.24 | $0.40 | ||||
| 721 | 10 | 343 | $5.96 | $0.17 | ||||
| 811 | 5 | 156 | $11.47 | $0.38 | ||||
| 812 | 5 | 138 | $11.42 | $0.43 | ||||
Section 4: Action Taken to Reduce Small Business Impacts: Ecology had limited scope in reducing the disproportionate impact of the proposed rule on small businesses. Fees were determined by the task force, and could thus not be reallocated or adjusted for small versus large businesses. Ecology was not able to include additional actions to reduce small business impacts in the proposed rule. Ecology did, however, include multiple representatives of small business in the task force decision process (see Section 5).
Section 5: Small Business Involvement: Ecology extensively involved businesses in the development of the proposed rule, including small businesses. Ecology involved the business community, and especially those businesses that might be disproportionately impacted by regulation, because they provide unique input into the views of the regulated community.
In particular, several members of the task force represent farmers, a diverse set of primarily small businesses. The Wheat Growers, Alfalfa Growers, and Tree Fruit Growers associations have representatives on the task force.
Section 6: NAICS Codes of Impacted Industries: This section lists NAICS codes for industries ecology expects to be impacted by the proposed rule2. The list does not include public entities such as state and local agencies that may also be impacted by the proposed rule, as these are not private businesses.
• 111
• 112
• 113
• 115
• 238
• 311
• 339
• 424
• 451
• 453
• 531
• 532
• 721
• 811
• 812
Section 7: Impact on Jobs: Ecology used the Washington
state office of financial management's 2002 Washington
input-output model (OFM-IO) to estimate the proposed rule's
first-round impact on jobs across the state. This methodology
estimates the impact as reductions or increases in spending in
certain sectors of the state economy flow through to
purchases, suppliers, and demand for other goods. Ecology
used a sample of 1/5 of permitted acreage with identifiable
industry with moderate confidence to model the proposed rule's
impact on jobs.
The OFM-IO results indicated a loss of nearly 0.5 jobs resulting each year from the impacts of the proposed rule in the sample of approximately twenty percent of permitted agricultural burning acreage. This result assumes that money paid to the public sector is not respent in the economy. Table 2 shows the estimated employment impacts across multiple industries.
| TABLE 2: Estimated Economy-Wide Employment Impacts as Estimated By OFM Input-Output Model | |||||
| NAICS | Employment Impact | NAICS | Employment Impact | ||
| 111 | -0.158 | 337 | 0.000 | ||
| 112 | -0.012 | 316, 326, 339 | -0.001 | ||
| 113 | 0.000 | 423 | -0.036 | ||
| 114 | 0.000 | 441, 442, 443, 444 | -0.029 | ||
| 21 | 0.000 | 481 | -0.001 | ||
| 2211 | -0.001 | 483 | 0.000 | ||
| 2212 | 0.000 | 484 | -0.002 | ||
| 2213 | -0.002 | 482, 485, 486, 487, 491, 492 | -0.005 | ||
| 23 | -0.010 | 488, 493 | -0.001 | ||
| 311, 312 | -0.003 | 5112, 518 | 0.000 | ||
| 313, 314, 315 | 0.000 | 517 | -0.002 | ||
| 321 | -0.001 | 5111, 512, 515, 516, 519 | -0.002 | ||
| 322 | 0.000 | 521, 522 | -0.013 | ||
| 323 | -0.001 | 523, 524, 525 | -0.005 | ||
| 324 | 0.000 | 53 | -0.016 | ||
| 325 | 0.000 | 5411, 5412, 5416, 5418, 5419, 55 | -0.006 | ||
| 327 | 0.000 | 5413, 5414, 5415, 5417 | -0.001 | ||
| 331 | 0.000 | 61 | -0.004 | ||
| 332 | 0.000 | 621 | -0.009 | ||
| 333 | 0.000 | 622 | -0.006 | ||
| 334 | 0.000 | 623, 624 | -0.010 | ||
| 335 | 0.000 | 71, 721 | -0.055 | ||
| 3364 | 0.000 | 722 | -0.017 | ||
| 3366 | 0.000 | 561 | -0.012 | ||
| 3361, 3362, 3363, 3365, 3369 | 0.000 | 562, 81, 115 | -0.052 | ||
1Ted Rasmussen Farms, LLC v. State of Washington, Department of Ecology, Docket # 22989-1-III (Rasmussen v.
Ecology)
2North American industry classification system (NAICS) codes have largely taken the place of standard industry classification (SIC) codes in the categorization of industries.
A copy of the statement may be obtained by contacting Kasia Patora, Economics and Regulatory Research, Department of Ecology, P.O. Box 47600, Lacey, WA 98504-7600, phone (360) 207-6184 [407-6184], fax (360) 407-6989, e-mail Kasia.Patora@ecy.wa.gov.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Kasia Patora, Economics and Regulatory Research, Department of Ecology, P.O. Box 47600, Lacey, WA 98504-7600, phone (360) 407-6184, fax (360) 407-6989, e-mail Kasia.Patora@ecy.wa.gov.
July 16, 2010
Polly Zehm
Deputy Director
OTS-3406.2
AMENDATORY SECTION(Amending Order 04-10, filed 7/26/06,
effective 8/26/06)
WAC 173-430-010
Purpose of the regulation.
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 Washington state department of ecology
(ecology) and local air authorities to implement the
provisions of that act related to agricultural burning. This
rule establishes control((s)) strategies for agricultural
burning in the state ((in order)) to minimize adverse health
and the ((environment)) environmental 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)) These strategies include:
(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, 70.94.743, and 70.94.745. 06-16-052 (Order 04-10), § 173-430-010, filed 7/26/06, effective 8/26/06. 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)) rules, 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 agricultural
activities (RCW ((70.94.745)) 70.94.6524). An agricultural
operation 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)) assist with 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, 70.94.743, and 70.94.745. 06-16-052 (Order 04-10), § 173-430-020, filed 7/26/06, effective 8/26/06. 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))
70.94.6528(6) 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 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))) (4) Best management practice: Means the criteria
established by the agricultural burning practices and research
task force (((Ag)) task force).
(((6))) (5) Certify: Means to declare in writing, based
on belief after reasonable inquiry, that the statements and
information provided are true, accurate, and complete.
(((7) Department: Means the department of ecology.
(8))) (6) Ecology: Means the Washington department of ecology.
(7) 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 growing or producing ((such)) products
primarily for their own consumption.
(8) Field burning: Agricultural burning of vegetative residue on an area of land used in an agricultural operation. Field burning does not include pile burning.
(9) Impaired air quality: Means ((a first or second
stage)) an 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.
(11) Permitting authority: Means ecology or its delegate or a local air authority with jurisdiction or 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.
(12) Pile burning: Agricultural burning of stacked vegetative residue from an agricultural operation. Burning of windrows does not qualify as pile burning.
(13) Silvicultural burning: Means burning on any land
the department of natural resources protects per RCW 70.94.030(13), ((70.94.660)) 70.94.6534, ((70.94.690))
70.94.6540, and ((pursuant to)) under chapter 76.04 RCW.
(14) Spot burn: Agricultural burning of an unforeseen and unpredicted small area where burning is reasonably necessary and no practical alternative to burning exists. Examples of spot burns include small weed patches, spots of heavy residue, equipment plugs, and harrow dumps. Burning of windrows does not qualify as a spot burn.
(15) Task force: Means the agricultural burning practices and research task force.
[Statutory Authority: RCW 70.94.650, 70.94.743, and 70.94.745. 06-16-052 (Order 04-10), § 173-430-030, filed 7/26/06, effective 8/26/06. 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 or local air 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)) when 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 based on the division between the "good"
and "moderate" classifications of the 2009 U.S. Environmental
Protection Agency's Air Quality Index (AQI) for (twenty-four
hours average PM2.5) 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)) the 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)) under the smoke
management index.
(f) ((Pursuant to)) Under RCW 70.94.473 and ((70.94.775))
70.94.6512, no burning ((shall be)) is 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/)) 70.94.6532 or
by RCW ((70.94.650)) 70.94.6528.
(3) Except as described in WAC 173-430-020(5), all agricultural burning requires a permit.
(a) Ecology or local air authorities with jurisdiction 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.
(c) Application information. A farmer must fill out the
information requested on a permit application, pay the
permitting fee, and submit it to the permitting authority for
review and approval ((prior to)) before burning.
(i) 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: 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.
(ii) All applications must comply with other state or
local ((regulations)) rules.
(d) The permitting authority must evaluate the
application, and approve the permit ((prior to)) before
burning.
(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)) the 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 authority with jurisdiction, or its delegate must approve or deny the permit in part or in whole based on information in the application.
(g) Ecology and its delegate or a local air ((agency))
authority 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)) 70.94.6514.
(4) All agricultural burning permits require a fee. ((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 calendar year per agricultural operation based on burning up to ten acres or equivalent;
(ii) Fifty dollars for orchard tear-out burning per calendar year per agricultural operation based on burning debris from up to twenty acres or equivalent.
(b) The variable fee level (based on the acreage or equivalent):
(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. The permitting authority may set the fee as an amount per agricultural operation per calendar 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 has not delegated permitting authority, this portion of the fee shall be one dollar and twenty-five cents per acre burned.
(ii) Ecology administration. This portion of the fee shall be used to off-set the statewide administrative, education, and oversight costs of the department for the agricultural burning program.
(iii) Research fund. 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 agricultural burning practices and research task force based on applied research needs, regional needs and the research fund budget. The agricultural burning practices and research task force may also establish discounted assessment rates based on the use of best management practices.
(iv) The chart below shows the permit fee break-out per category:
| (( |
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(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 acreage basis.)) The applicant must include the fee when submitting the application. The permitting authority will charge fees as described under WAC 173-430-041.
(5) All agricultural burning permits must include conditions intended to minimize air pollution.
(a) A farmer must comply with the conditions on the agricultural burning permit.
(b) 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 at least one of the following:
• The use of a daily burn decision((,)).
• Permit specific decisions ((and/or)).
• Metering.
(c) The permitting authority must:
(i) Act on a complete application (as determined by the
((agency)) permitting authority) within seven days of receipt.
(((i) The permitting authority must)) (ii) Evaluate the
application and approve or deny all or part of it.
(((ii) The permitting authority must)) (iii) Evaluate the
application to determine if the requested burning is within
the general or crop-specific best management practices.
(((iii))) (iv) If the permitting authority denies the
application ((is denied)), ((the)) they must state the reason
((must be stated)) for the denial.
(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.
(b) Exemptions to the requirements for burning of field and turf grasses grown for seed ((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 (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 (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.
(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 administrative order.
(d) The department of ecology or local air authority may provide for trading of permits using the method described in 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.
(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 (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 (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 (a) of this subsection.
(7))) Other laws. A farmer must obtain any local
permits, licenses, or other approvals required by any other
laws, ((regulations)) rules, or ordinances. The farmer must
also honor other agreements entered into with any federal,
state, or local agency.
[Statutory Authority: RCW 70.94.650, 70.94.743, and 70.94.745. 06-16-052 (Order 04-10), § 173-430-040, filed 7/26/06, effective 8/26/06. 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.]
| Field burning | $3.75 per acre |
| Pile burning | $1.00 per ton |
(a) 2011 fee schedule. Fees starting in the calendar year 2011 are found in subsection (5) of this section.
(b) Establishing new fee schedules. Ecology and the task force will examine the fee schedule using the process in WAC 173-430-042.
(3) Calculating the fee. The fee consists of a minimum fee plus any applicable variable fee.
(a) Minimum fee. The minimum fee includes burning of the base number of acres or tons published in the fee schedule.
(b) Variable fee. Field burning and pile burning permits allowing the farmer to burn more acres or tons than the base included in the minimum fee require an additional per acre or per ton fee.
(c) The following table shows which types of burning have a variable fee.
| Type of Burning | Variable Fee |
| Field Burning | Fee applied for each additional acre. |
| Spot Burning | None - Spot burn permits must not exceed the base amount of acres published in the fee schedule. |
| Pile Burning | Fee applied for each additional ton. |
• Permitting program administration;
• Smoke management administration; and
• Research.
(a) Permitting program administration. The permitting authority may set the fee as an amount no more than the amount published in the fee schedule.
(i) The local air authority or delegated permitting authority must establish this portion of the fee by an appropriate, public process such as a local rule, ordinance, or resolution.
(ii) In areas of the state where ecology has permitting authority and has not delegated that authority, ecology will charge the following for local permitting program administration:
(A) Starting in 2011, the amount listed in subsection (6) of this section.
(B) For subsequent fee changes, the amount published in the fee schedule. Ecology will publish the fee schedule using the process in WAC 173-430-042.
(b) Smoke management administration. This portion of the fee will:
(i) Help off-set the statewide or regionwide costs of the agricultural burning program.
(ii) Help fund the education, and smoke management activities of ecology or the local air authority.
(c) Research fund. The task force will determine the research portion of the fee based on applied research needs, regional needs and the research fund budget.
(5) Permit fee schedule. Table 1 shows the permit fee schedule, starting in the calendar year 2011. This fee schedule will remain in place until ecology and the task force adjust it using the process in WAC 173-430-042. Please see http://www.ecy.wa.gov, contact ecology, or contact your local air authority for the most current fee schedule or fee distribution.
Agricultural Burning Fee Schedule, Starting Calendar Year 2011
| Fee | Minimum Fee | Variable Fee |
| Field Burning | $30 for the first 10 acres | $3.00 for each additional acre |
| Spot Burning | $30 for 10 acres or less | None |
| Pile Burning | $80 for the first 100 tons | $0.50 for each additional ton |
Agricultural Burning Fee Distribution
| Fee | Permitting Authority Administration | Research | Smoke Management |
| Field Burning Minimum Fee | $15.00 | $0 | $15.00 |
| Field Burning Variable Fee | $1.25 per acre | $0.50 per acre | $1.25 per acre |
| Spot Burning Fee | $15.00 | $0 | $15.00 |
| Pile Burning Minimum Fee | $16.00 | $16.00 | $48.00 |
| Pile Burning Variable Fee | $0.10 per ton | $0.10 per ton | $0.30 per ton |
(a) The permitting authority may keep the minimum fee as reimbursement for the costs of processing the permit application.
(b) The permitting authority will not issue refunds of less than twenty-five dollars due to the cost of processing refunds.
[]
| Field burning | $3.75 per acre |
| Pile burning | $1.00 per ton |
(3) Process for adjusting the fee schedule for agricultural burning. The process for adjusting the fee schedule requires the following two steps:
• The task force must determine the fee schedule using the process established in subsection (4) of this section;
• If the task force decides to adjust the fee schedule, ecology will finalize the new fee schedule through the process established in subsection (6) of this section.
(4) Task force process to determine agricultural burning fees. The task force may examine the agricultural burning fee schedule once a year using the process outlined in this section. However, the task force must examine the agricultural burning fee schedule at least every two years. The task force process for examining the agricultural burning fee schedule must include the following:
(a) Ecology will submit, to the task force, a summary of the costs of the permit and smoke management programs before the first task force meeting of the year.
(b) The agenda for the first task force meeting of the year must include examining the current fee schedule.
(c) Ecology will notify stakeholders and permit holders of time, date, location, and agenda for the task force meeting.
(d) Based on the information provided by ecology, under (a) of this subsection, the task force will decide if they need to adjust the agricultural burning fee schedule.
(e) If the task force decides to adjust the agricultural burning fee schedule, they must determine the new fee schedule at a regularly scheduled meeting.
(5) Examining the fee schedule more frequently. The task force may examine the agricultural burning fee schedule more frequently than every two years, if all of the following occurs:
(a) The task force determines the fee schedule during one of their regularly scheduled meetings.
(b) Ecology finalizes the fee schedule using the process in subsection (6) of this section.
(6) Ecology process to finalize fees set by the task force. After the task force determines a new fee schedule, ecology will:
(a) Post the proposed fee schedule on the agency web site for public review and comment.
(b) Publish a notice of a public hearing.
(i) The notice will include all of the following:
• Time;
• Date;
• Location;
• Last day ecology will accept written comments.
(ii) At a minimum, ecology will publish the notice in the following locations:
(A) Washington State Register.
(B) Ecology web site.
(c) Hold a public hearing at least twenty days after completing the actions in (a) and (b) of this subsection.
(d) Accept written comments on the proposed fee schedule. Ecology must receive comments by the time and date specified in the hearing notice, or a later time and date established at the hearing.
(e) Consider comments received and provide a written response to comments to the task force and anyone who commented.
(f) Ecology will finalize the fee schedule by December 1st of the calendar year before it becomes effective.
(g) Ecology will publish the fee schedule by:
(i) Notifying stakeholders and permit holders of the new fees.
(ii) Posting a response to comments on the ecology web site.
(7) Effective date of the new fee schedule. The new fee schedule becomes effective January 1st of the calendar year after it is finalized.
[]
(1) Beginning in 1997 and until approved alternatives become available, each farmer is 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:
(a) Two-thirds of the number of acres the farmer burned under a valid permit issued in 1995; or
(b) 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.
(2) Exemptions to the requirements for burning of field and turf grasses grown for seed (subsection (1) of this section). 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 or turf grasses grown for seed. Under this subsection, relief from the acreage/emissions reduction requirements of subsection (1) of this section is limited to no more than five percent of the acreage in production on May 1, 1996, and is also subject to the following provisions:
(a) The exemption request must be certified by an agronomic professional;
(b) The farmer must be able to show full compliance with the emissions reductions in subsection (1) of this section for the acreage not exempted; and
(c) The farmer must be in full compliance with permit requirements for other crops under WAC 173-430-040.
(3) 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 70.94.6532, until another method(s) is shown to be better and meets with the intent of RCW 70.94.6532(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 order.
(4) Ecology or the local air authority may provide for trading of permits using the method described in 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 or turf grasses grown for seed.
(a) Ecology or the local air authority may develop a system that allows the trading of permits by:
(i) Adding a signed transfer line to the written permit that provides for a signature for the current holder of the permit;
(ii) 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;
(iii) 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
(iv) Assuring that the permits are used only once in a calendar year.
(b) 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.
(c) Ecology and the local air authorities may add restrictions to the transfer of permits closer to areas with higher population densities.
(d) 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 1st of the year during which the transaction takes place.
(e) Acreage that is exempted under subsection (5) of this section is not eligible for the trading system.
(f) 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.
(5) 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 subsection (1) of this section provided:
(a) 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 subsection (1) of this section; and
(b) In no case will the emission reduction requirement for the field and turf grass grown for seed be less than that required in subsection (1) of this section.
[]
The Washington Clean Air Act prohibits open burning of field and turf grasses grown for seed whenever ecology has concluded, through a process spelled out in the act, that any procedure, program, technique, or device constitutes a practical alternate agricultural practice to open burning, and that alternate is reasonably available.
(2) Has ecology certified practical alternatives to open burning of field or turf grasses grown for seed?
Yes. Ecology concludes that mechanical residue
management constitutes a practical alternate agricultural
practice to the open burning of field ((and/))or turf grasses
grown for seed. Mechanical residue management means removing,
including arranging for removal of, the residue using
nonthermal, mechanical techniques including, but not limited
to: Tilling, swathing, chopping, baling, flailing, mowing,
raking, and other substantially similar nonthermal, mechanical
techniques. Ecology further concludes that mechanical residue
management is practical throughout all phases of seed
production including:
(a) When the field is planted (establishment);
(b) When the field is producing seed (harvest years);
(c) When the field is prepared for replanting (tear-out).
(3) Are the alternatives to open burning that have been certified by ecology reasonably available?
Ecology concludes that mechanical residue management is reasonably available throughout the state wherever baling can be used. Baling is the process of gathering the residue and moving it off the field. Typically, a machine known as a "baler" is used to gather and bundle residue that is already cut.
Based on this conclusion, the open burning of field
((and/))or turf grasses grown for seed is prohibited except as
described in subsection (4) of this section. This rule does
not require the use of any particular practice or technique.
A farmer may use any alternate practice that does not involve
field burning.
(4) Under what circumstances may open burning of field or turf grasses grown for seed be allowed?
(a) Where a farmer establishes that mechanical residue management is not reasonably available on specific portions of a field under specific production conditions due to slope. In a request for a waiver, a farmer must certify in writing to ecology or local air authority the following:
(i) Baling is not reasonably available due to slope. A farmer must explain why baling is not reasonably available, referring to specific facts supporting this belief. Unacceptable facts include, but are not limited to, general statements about burning as a tool for the routine control of weed and disease, for seed propagation purposes, or as a less costly alternative to mechanical residue management. A farmer may use statements from three separate businesses providing baling services as part of their commercial operation to support the belief that baling is not reasonably available due to slope. In the statements, the businesses must certify that they are independent from the farmer and have no financial interest in the farmer's operation;
(ii) Current harvest practices have not diminished the ability to use mechanical residue management;
(iii) ((Field production is after the first harvest
season and prior to the fourth harvest season;
(iv))) The ground or portions of the field have not been burned three years in a row in the three years preceding the request for a waiver;
(((v))) (iv) The ground or portions of the field will
remain, without replanting, in grass production at least
through the next harvest season following burning;
(((vi))) (v) Residue from any neighboring fields or
portions of fields under the control of the farmer will be
removed ((prior to)) before burning and reasonable precautions
will be taken to prevent fire from spreading to areas where
burning is not allowed; and
(((vii))) (vi) Adjustments in field rotations and
locations cannot be made at any time during the rotational
cycle and could not have been made when planted to allow the
use of mechanical residue management techniques.
(b) Where a farmer establishes that extreme conditions exist. Ecology or a local air authority, at their discretion, may grant a request for a waiver for extreme conditions. The farmer must certify in writing the following:
(i) Why mechanical residue management is not reasonably available, referring to specific facts supporting this belief. Unacceptable facts include, but are not limited to, general statements about burning as a tool for the routine control of weed and disease, for seed propagation purposes, or as a less costly alternative to mechanical residue management;
(ii) He/she did not cause or create the condition to purposefully avoid using mechanical residue management techniques;
(iii) ((Field production is after the first harvest
season and prior to the fourth harvest season;
(iv))) The ground or portions of the field have not been burned three years in a row in the three years preceding the request for a waiver;
(((v))) (iv) The field will remain, without replanting,
in grass production at least through the next harvest season
following burning;
(((vi))) (v) Residue from any neighboring fields or
portions of fields under the control of the farmer will be
removed prior to burning and that reasonable precautions will
be taken to prevent fire from spreading to areas where burning
is not allowed; and
(((vii))) (vi) Adjustments in field rotations and
locations cannot be made at any time during the rotational
cycle, and could not have been made when planted to allow the
use of mechanical residue management techniques.
(c) Where a farmer demonstrates to ecology or local air authority that his/her small agricultural operation is eligible for mitigation.
For 1998 only, ecology or a local air authority may allow burning on a small agricultural operation. A small agricultural operation owner has a gross 1997 revenue from all agricultural operations of less than $300,000. A farmer must show information of sufficient quantity and quality to ecology or a local air authority to establish gross revenue from agricultural operations. A small farm owner may burn current acreage up to 25% of 1997 acreage burned under a valid permit. Fields taken out of production after the 1997 harvest season and in 1998 cannot be counted in the determination of 1997 acreage burned for the purpose of eligible burn acreage.
(d) Where a request for a waiver is approved under (a), (b), and (c) of this subsection, the following additional limitations also apply:
Total burn acreage must not exceed 1/3 of a farmer's
acreage in production on May 1, 1996. Permits issued
((pursuant to)) under (a), (b), or (c) of this subsection are
not eligible for the permit trading program identified in WAC 173-430-040.
(5) What is the process for a farmer to request a waiver for circumstances described in subsection (4) of this section?
(a) A farmer submits a request for a waiver.
Sixty days ((prior to)) before the planned burn date, a
farmer must submit in writing a request to ecology or a local
air authority. In the request, the farmer must identify the
circumstances and meet the specific requirements of subsection
(4)(a), (b), ((and/))or (c) of this section. Ecology or the
local air authority may require the request to be submitted on
a form or in a format provided by ecology or the local air
authority.
(b) Ecology or local air authority evaluates the request for a waiver.
Upon receiving a request for a waiver, ecology or the
local air authority will determine if the necessary documents
and information provided is complete enough to evaluate the
request. If incomplete, ecology or local air authority will
advise the farmer and suspend further evaluation until the
request for a waiver is complete. The documents and
information identified as necessary to complete the request
must be delivered to ecology or the local air authority at
least thirty days ((prior to)) before burning. Once a request
for a waiver is deemed complete, ecology or the local air
authority will evaluate the request and decide whether the
burning waiver is appropriate. As part of the evaluation,
ecology or the local air may conduct an on-site inspection.
If ecology or local air authority denies a request for a waiver, the reasons will be provided to the farmer in writing. If approved, ecology or the local air authority will notify the farmer by convenient means. Ecology will also notify the appropriate delegated authority.
(c) The farmer applies for an agricultural burning permit.
If ecology or local air authority approves a request for
a waiver, the farmer must complete a permit application and
pay the fee as described in WAC 173-430-040. A delegated
authority must receive written authorization from ecology that
a waiver has been approved ((prior to)) before processing a
permit application.
[Statutory Authority: RCW 70.94.656. 98-12-016 (Order 97-45), § 173-430-045, filed 5/26/98, effective 6/26/98.]
(2) The ((Ag)) task force may establish an agricultural
burning general best management practice and crop-specific
best management practices as appropriate. The ((Ag)) task
force will work in conjunction with conservation districts and
extension agents or other local entities in developing best
management practices. The ((Ag)) task force may review and
approve crop-specific best management practices which have
been developed or recommended by an individual or group.
(3) Approved best management practices information will
be available from permitting authorities. The ((Ag)) task
force, as it deems necessary, will hold public workshops on
best management practices that have changed or are new and
will periodically review the best management practices
starting three years after approval.
(4) The ((Ag)) task force will clarify best management
practices and make interpretative decisions as needed,
considering all authoritative sources on the subject.
(a) An individual or group may request a best management practice clarification from the task force.
(b) The chair of the ((Ag)) task force may direct the
questioned practice to a subgroup of task force members,
provided that agricultural, research, and regulatory interests
are included and all task force members are notified, or may
direct it to the whole ((Ag)) task force.
(5) The ((Ag)) task force will ((modify)) change best
management practices as necessary to incorporate the latest
research.
[Statutory Authority: RCW 70.94.650. 95-03-083 (Order 94-17), § 173-430-050, filed 1/17/95, effective 2/17/95. Statutory Authority: RCW 70.94.331. 90-19-062 (Order 90-10), § 173-430-050, filed 9/17/90, effective 10/18/90; Order DE 77-20, § 173-430-050, filed 11/9/77. Formerly WAC 18-16-050.]
(2) No less than every two years, the ((Ag)) task force
will review research needs and submitted proposals and make
its recommendations to ((the department)) ecology.
[Statutory Authority: RCW 70.94.650, 70.94.743, and 70.94.745. 06-16-052 (Order 04-10), § 173-430-060, filed 7/26/06, effective 8/26/06. 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:
(a) Do not burn at night unless it is specified as a best management practice;
(b) Comply with all fire safety ((regulations)) rules of
the local fire protection agency including any no-burn
directives it may issue;
(c) Call the local air authority burning information line (if there is one) before lighting the fire;
(d) Burn only during times specified by the permitting authority;
(e) Burn when wind takes the smoke away from roads, homes, population centers, or other public areas, to the greatest extent possible;
(f) Do not burn when adverse meteorological conditions exist;
(g) Burn only natural vegetation;
(h) Do not burn or add fuel during any stage of an air pollution episode or local air quality burning ban;
(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, 70.94.743, and 70.94.745. 06-16-052 (Order 04-10), § 173-430-070, filed 7/26/06, effective 8/26/06. 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.]
(2) The permitting authority must act on a complete application (as determined by ecology or a local air authority with jurisdiction) within seven days of receipt.
(a) Local air authorities are required to use application templates and permit templates supplied by ecology. Ecology delegated authorities are required to use applications and permits supplied by ecology.
(b) A map ((is required to)) must 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, and 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)) must
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.
(d) The permitting authority must evaluate the application to determine if the requested burning is within the general or crop-specific best management practices.
(e) If the application is denied, the reason must be stated.
(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 order.
(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.
(5) The permitting authority or its delegate is responsible for responding to agricultural burning complaints.
(6) The permitting authority must collect the fee, determine the local administration portion of the fee, and issue refunds.
(a) Permitting authorities must issue a permit fee refund for permitted acres not burned 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.
(7) Delegated permitting authorities must provide ecology
with copies of all permits and supporting documentation and
transfer the research and ((ecology administration)) smoke
management administration portion of the fee to ((the
department)) ecology.
(a) 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)) Ecology 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)) ecology.
(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)) use the web-based data base for issuing all
agricultural burning permits.
(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, 70.94.743, and 70.94.745. 06-16-052 (Order 04-10), § 173-430-080, filed 7/26/06, effective 8/26/06. 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 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, or both. The delegated
permitting authority must, at a minimum, meet all of the
following criteria:
(a) Demonstrating that the responsibilities listed under permitting authority responsibilities section can be fulfilled;
(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))
ecology 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)) must 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)) ecology 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)) before implementation.
[Statutory Authority: RCW 70.94.650, 70.94.743, and 70.94.745. 06-16-052 (Order 04-10), § 173-430-090, filed 7/26/06, effective 8/26/06. Statutory Authority: RCW 70.94.650. 95-03-083 (Order 94-17), § 173-430-090, filed 1/17/95, effective 2/17/95.]
[Statutory Authority: RCW 70.94.650. 95-03-083 (Order 94-17), § 173-430-100, filed 1/17/95, effective 2/17/95.]