WSR 98-21-038

PERMANENT RULES

PUGET SOUND

AIR POLLUTION CONTROL AGENCY

[Filed October 14, 1998, 10:23 a.m.]

Date of Adoption: October 8, 1998.

Purpose: To add the ability to use credible evidence in enforcement; clarify that all orders may be appealed to the Pollution Control Hearings Board; add definitions; include a new burn ban trigger; add amendments made by the legislature to authorize use of petroleum products for fire training; allow fire districts or county councils to add no-burn areas outside urban growth areas; and make the spray-coating rule more flexible and effective.

Citation of Existing Rules Affected by this Order: Amending Regulation I, Sections 3.17, 8.02, 8.03, and 8.04.

Statutory Authority for Adoption: Chapter 70.94 RCW.

Adopted under notice filed as WSR 98-18-087 on September 2, 1998.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

Effective Date of Rule: Thirty-one days after filing.

October 9, 1998

James Nolan

Director - Compliance

NEW SECTION

REGULATION I SECTION 3.06 CREDIBLE EVIDENCE

For the purpose of establishing whether or not a person has violated or is in violation of any provision of chapter 70.94 RCW, any rule enacted pursuant to that chapter, or any permit or order issued thereunder, nothing in this regulation shall preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test procedures or methods had been performed.

AMENDATORY SECTION

REGULATION I SECTION 3.17 APPEAL OF ORDERS

(a) Any order of the Board or Control Officer ((issued pursuant to Section 3.09 of Regulation I)) may be appealed to the Pollution Control Hearings Board if the appeal is filed with the Hearings Board and served on the Agency within 30 days after receipt of the order. This is the exclusive means of appeal of such an order.

(b) The Control Officer may stay the effectiveness of an order during the pendency of such an appeal. At any time during the pendency of such an appeal of such an order to the Hearings Board, the appellant may apply to the Hearings Board pursuant to ((C))chapter 43.21B RCW and ((C))chapter 371-08 WAC for a stay of the order or for the removal thereof.

(c) Upon failure to comply with any final order of the Board or Control Officer, the attorney for the Agency, upon request of the Board or Control Officer, may bring an action in the superior court of the county where the violation occurred or the potential violation is about to occur to obtain such relief as necessary.

NEW SECTION

REGULATION I SECTION 8.01 DEFINITIONS

The following definitions apply to this article:

(a) land-clearing fire means an outdoor fire consisting of residue of a natural character such as trees, stumps, shrubbery, or other natural vegetation arising from land-clearing projects and burned on the lands where the residue originated.

(b) outdoor fire means the combustion of material in the open or in a container with no provision for control of the combustion or control of the emissions from the combustion.

(c) period of impaired air quality means a condition declared by the Control Officer when particulates 10 microns and smaller in diameter are at an ambient level of 60 micrograms per cubic meter measured on a 24-hour average or when carbon monoxide is at an ambient level of 8 parts of contaminant per million parts of air by volume measured on an 8-hour average.

(d) residential fire means an outdoor fire no larger than 4 feet in diameter and 3 feet in height consisting of leaves, clippings, prunings, and other yard and gardening refuse originating on lands immediately adjacent and in close proximity to a human dwelling and burned on such lands by the property owner or his or her designee.

AMENDATORY SECTION

REGULATION I SECTION 8.02 PROHIBITED OUTDOOR FIRES ((- PROHIBITED TYPES))

It shall be unlawful for any person to cause or allow any outdoor fire:

(a) During any ((stage of an air pollution episode or)) period of impaired air quality; or

(b) Containing garbage, dead animals, asphalt, petroleum products (except for training as provided in Sections 8.07 and 8.08), paints, rubber products, plastics or any substance other than natural vegetation which normally emits dense smoke or obnoxious odors.((; or

(c) Other than the following types:

(1) Fires for instruction in the methods of fighting fires, provided the person(s) conducting the training fire complies with the requirements of Section 8.07 or 8.08 of this regulation;

(2) Fires associated with commercial agricultural operations, provided prior written approval has been issued by the Control Officer in accordance with Section 8.05 of this regulation;

(3) Fires for abating a forest fire hazard, to prevent a hazard, for instruction of public officials in methods of forest fire fighting, any silvicultural operation to improve forest lands, and silvicultural burning used to improve or maintain fire dependent ecosystems for rare plants or animals within state, federal, and private natural area preserves, natural resource conservation areas, parks, and other wildlife areas, provided prior written approval has been issued by the Washington Department of Natural Resources;

(4) Fires no larger than four feet in diameter and three feet in height consisting of leaves, clippings, prunings, and other yard and gardening refuse originating on lands immediately adjacent and in close proximity to a human dwelling and burned on such lands by the property owner or his or her designee, provided a permit has been issued by a fire protection agency, county, or conservation district;

(5) Fires consisting of residue of a natural character such as trees, stumps, shrubbery or other natural vegetation arising from land clearing projects, provided a permit has been issued by a fire protection agency, county, or conservation district;

(6) Fires consisting solely of charcoal, propane, natural gas, or wood used solely for the preparation of food;

(7) Fires no larger than four feet in diameter and three feet in height for campfires at designated federal, state, county or city parks and recreation areas;

(8) Fires for Indian ceremonies or for the sending of smoke signals if part of a religious ritual;

(9) Fires for abating a fire hazard, provided a fire protection agency or county has determined that no reasonable alternative is available to abate the hazard and prior written approval has been issued to the fire protection agency or county by the Control Officer.))

AMENDATORY SECTION

REGULATION I SECTION 8.03 ((OUTDOOR FIRES - PROHIBITED AREAS)) RESIDENTIAL AND LAND-CLEARING FIRES

(((a) It shall be unlawful for any person to cause or allow any outdoor fire as described in Section 8.02(c)(4) or (5) of this Regulation in any area in which the applicable fire protection agency, county, or conservation district has determined not to issue burning permits for outdoor fires pursuant to RCW 70.94.745, RCW 70.94.750, RCW 70.94.775, and/or RCW 70.94.780.))

(((b))) (a) It shall be unlawful for any person to cause or allow any ((outdoor)) residential or land-clearing fire ((as described in Section 8.02(c)(4) or (5) of this Regulation)) within the Urban Growth Areas as defined by RCW 36.70A.030 for Snohomish, King, and Pierce Counties. In addition, after December 31, 2000, it shall be unlawful for any person to cause or allow any residential or land-clearing fire within the Urban Growth Area as defined by RCW 36.70A.030 for Kitsap County.

(b) It shall be unlawful for any person to cause or allow any residential or land-clearing fire in any area outside the Urban Growth Area where the Board of Fire Commissioners for a fire district or the County Council has adopted an ordinance or resolution requesting that the Agency prohibit residential or land-clearing fires. In adopting such an ordinance or resolution, the Board of Fire Commissioners for a fire district or the County Council should consider the population density in the area and the availability of reasonably economical alternatives to outdoor burning.

(c) Residential and land-clearing fires are allowed in areas other than those described in Sections 8.03 (a) and (b), except that it shall be unlawful for any person to cause or allow any residential or land-clearing fire in any area where the applicable fire district does not issue permits for outdoor fires.

AMENDATORY SECTION

REGULATION I SECTION 8.04 GENERAL CONDITIONS

(a) The provisions of Sections 9.03, 9.05, and 9.15 of Regulation I shall not apply to outdoor fires.

(b) Nothing contained in Article 8 shall be construed to allow outdoor fires in those areas in which open burning is prohibited by laws, ordinances, or regulations of the state or any city, county, or fire district.

(c) Nothing contained in Article 8 shall relieve the applicant from obtaining permits required by any state or local fire protection agency or from compliance with ((Section 11.101 of)) the Uniform Fire Code.

NEW SECTION

REGULATION I SECTION 8.06 ALLOWABLE OUTDOOR FIRES

The following types of outdoor fires are allowed throughout King, Pierce, Kitsap, and Snohomish counties (including Urban Growth Areas), except during periods of impaired air quality:

(a) Fires for abating a forest fire hazard, to prevent a hazard, for instruction of public officials in methods of forest fire fighting, any silvicultural operation to improve forest lands, and silvicultural burning used to improve or maintain fire dependent ecosystems for rare plants or animals within state, federal, and private natural area preserves, natural resource conservation areas, parks, and other wildlife areas, provided prior written approval has been issued by the Washington Department of Natural Resources;

(b) Fires no larger than 4 feet in diameter and 3 feet in height consisting of wood used solely for the preparation of food. (The use of gas or charcoal barbecues is allowed at all times, including periods of impaired air quality.);

(c) Fires no larger than 4 feet in diameter and 3 feet in height for campfires at designated federal, state, county, or city parks and recreation areas;

(d) Fires for Indian ceremonies or for the sending of smoke signals if part of a religious ritual;

(e) Fires for abating a fire hazard or a public health or safety hazard, provided a fire protection agency, city, or county has determined that no reasonable alternative is available to abate the hazard and prior written approval has been issued to the fire protection agency, city, or county by the Control Officer;

(f) Fires for disposing of storm or flood-related natural vegetation, provided a fire protection agency, city, or county has made a determination that no reasonable alternative is available to dispose of the natural vegetation and prior written approval has been issued to the fire protection agency, city, or county by the Control Officer;

(g) Fires associated with commercial agricultural operations, provided prior written approval has been issued by the Control Officer in accordance with Section 8.05 of this regulation; and

(h) Fires for instruction in the methods of fighting fires, provided the person(s) conducting the training fire complies with the requirements of Sections 8.07 and 8.08 of this regulation.