DEPARTMENT OF ECOLOGY

[Order 18-08—Filed December 4, 2018, 11:35 a.m.]

Preproposal statement of inquiry was filed as WSR 18-13-112.

Title of Rule and Other Identifying Information: Chapter 173-430 WAC, Agricultural burning, this rule implements the agricultural burning program in Washington state.

For more information on this rule making visit https://ecology.wa.gov/Regulations-Permits/Laws-rules-rulemaking/Rulemaking/WAC173-430.

Hearing Location(s): On January 8, 2019, at 3:30 p.m., webinar and in-person at 300 Desmond Drive S.E., Lacey, WA 98503. Presentation, question and answer session followed by the hearing. We are also holding this hearing via webinar. This is an online meeting that you can attend from any computer using internet access.

Join online and see instructions https://watech.webex.com/watech/onstage/g.php?MTID=e8fdd02a524383118ac3fae25dc9b54f0. For audio call U.S. toll number 1-855-929-3239 and enter access code 809 005 897. Or to receive a free call back, provide your phone number when you join the event.

Date of Intended Adoption: March 1, 2019.

Submit Written Comments to: Jacob Berkey, Department of Ecology, Air Quality Program, P.O. Box 47600, Olympia, WA 98504-7600, online http://ac.ecology.commentinput.com/?id=H37VT, by January 15, 2019. Submit comments by mail, online, or at the hearing(s).

Assistance for Persons with Disabilities: Contact Sultana Shah, phone 360-407-6831, TTY people with speech disability may call TTY 877-833-6341, people with impaired hearing may call Washington relay service 711, email sultana.shah@ecy.wa.gov, by January 3, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Proposing amendments to WAC 173-430-041 and 173-430-080 to:

Reasons Supporting Proposal: The Washington state auditor's office performed an accountability audit of ecology from July 1, 2014, to June 30, 2015, and issued a management letter dated October 24, 2016, with their recommendations. Amending chapter 173-430 WAC based on these recommendations.

Ecology and the agricultural burning task force adjusted the agricultural burning fees and agricultural burning fee distribution in 2012-2013, following the process specified in WAC 173-430-042. Revising the fees and fee distribution tables in WAC 173-430-041 with the current fee schedules to avoid confusion.

Changing the fund transfer schedule in WAC 173-430-080 to a schedule that works better for the conservation districts and regulated community. Also changing rule language in WAC 173-430-080 to comply with the auditor's findings about database trainings and records maintenance.

The rest of the changes are to make updates, make technical clarifications, correct errors and improve readability.


•	Address inadequacies raised in the Washington state auditor's office management letter dated October 24, 2016.
•	Incorporate the most current agriculture [agricultural] burning fee schedule and permit fee distribution to avoid confusion.
•	Identify and, where appropriate, make needed edits in chapter 173-430 WAC to make updates, technical clarifications, correct errors, and improve readability.

Statutory Authority for Adoption: Chapter 70.94 RCW, RCW 70.94.6524, 70.94.6528.

Statute Being Implemented: Chapter 70.94 RCW, Washington Clean Air Act.

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: Jacob Berkey, Department of Ecology, Air Quality Program, 300 Desmond Drive S.E., Lacey, WA 98503, 360-407-7086; Implementation and Enforcement: Kary Peterson, Department of Ecology, Air Quality Program, 4601 North Monroe, Spokane, WA 99205-1295, 509-329-3523.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. A cost-benefit analysis is not required because portions of this rule proposal meet the following exemption in RCW 34.05.328 (5)[(b)](iii), rules adopting or incorporating by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule; RCW 34.05.328 (5)[(b)](iv), rules that only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect; RCW 34.05.328 (5)[(b)](vi), rules that set or adjust fees under the authority of RCW 19.02.075 or that set or adjust fees or rates pursuant to legislative standards, including fees set or adjusted under the authority of RCW 19.80.045.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules relate only to internal governmental operations that are not subject to violation by a nongovernment party; rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect; and rules set or adjust fees under the authority of RCW 19.02.075 or that set or adjust fees or rates pursuant to legislative standards, including fees set or adjusted under the authority of RCW 19.80.045.

Is exempt under RCW 19.85.025(4).

AMENDATORY SECTION(Amending WSR 10-23-049, filed 11/10/10, effective 12/11/10)

WAC 173-430-041Agricultural burning fees.

(1) RCW 70.94.6528 provides the following maximum fees for agricultural burning:

Field burning	$3.75 per acre
Pile burning	$1.00 per ton

(2) RCW 70.94.6528(5) authorizes the agricultural burning practices and research task force (task force) to determine the level of the fee.

(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.

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.

(4) Fee components. The permit fee helps off-set the cost of administering and enforcing the agricultural burning permit program. The fee consists of three components:

• 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))http://www.ecology.wa.gov, contact ecology, or contact your local air authority for the most current fee schedule or fee distribution.

Table 1

Agricultural Burning Fee Schedule((, Starting Calendar Year 2011))

Fee	Minimum Fee	Variable Fee
Field Burning	$((30))37.50 for the first 10 acres	$((3.00))3.75 for each additional acre
Spot Burning	$((30))37.50 for 10 acres or less	None
Pile Burning	$80 for ((the first 100))piles up to 80 tons	$((0.50))1.00 for each additional ton

Note:

These numbers reflect the most recent revision of the agricultural fee schedule, which occurred on July 1, 2012, per WAC 173-430-042.

(6) Permit fee distribution. Table 2 shows the permit fee distribution((, starting in the calendar year 2011)). This distribution 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))http://www.ecology.wa.gov, contact ecology, or contact your local air authority for the most current fee schedule or fee distribution.

Table 2

Agricultural Burning Fee Distribution

Fee	Permitting Authority Administration	Research	Smoke Management
Field Burning Minimum Fee	$15.00	$0	$((15.00))22.50
Field Burning Variable Fee	$1.25 per acre	$0.50 per acre	$((1.25))2.00 per acre
Spot Burning Fee	$15.00	$0	$((15.00))22.50
Pile Burning Minimum Fee	$16.00	$16.00	$48.00
Pile Burning Variable Fee	$0.10 per ton	$0.10 per ton	$((0.30))0.80 per ton

Note:

These numbers reflect the most recent revision of the agricultural burning fee distribution schedule, which occurred on July 1, 2012, per WAC 173-430-042.

(7) Refunds. The farmer may receive a refund. The farmer may only receive a refund for the portion of the variable fee paid for the acres or tons not burned.

(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.

AMENDATORY SECTION(Amending WSR 10-23-049, filed 11/10/10, effective 12/11/10)

WAC 173-430-080Responsibilities of a permitting authority.

(1) The permitting authority is ecology or its delegate or a local air authority with jurisdiction or its delegate. The permitting authority must establish and administer an agricultural burning permit system. The minimum responsibilities are described in this section.

(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 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.

(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 must be outlined with the section number, township, and range clearly marked.

(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 smoke management administration portion of the fee to ecology.

(a) Local air authorities and delegated permitting authorities must transfer funds twice a year by ((July 15 and January 15))September 30th and March 31st.

(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))September 30th and all fall (July - December) permits by ((January 15th))March 31st.

(c) 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 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, except for spot burn permits.

(10) The permitting authority or its delegate must use the web-based database for issuing all agricultural burning permits.

(a) Local air authorities and its delegates ((must))may make arrangements with ecology to enter information into the web-based database.

(b) ((Ecology-delegated permitting authorities must attend a minimum of one database training per calendar year or as provided by))Ecology shall provide training as needed and maintain records for five years documenting each training.