Exempt from preproposal statement of inquiry under RCW 34.05.310(4).
Title of Rule: Northwest Air Pollution Authority Regulation (NWAPA).
Purpose: To repeal outdoor burning section 501 and to adopt new section 502 that includes outdoor burning regulations consistent with current state rules.
Statutory Authority for Adoption: Chapter 70.94 RCW.
Summary: Section to repeal: Section 501, outdoor burning regulations in section 501 are being rewritten as new section 502 reflecting associated changes to the state chapter 173-425 WAC.
New section: Section 502, new section 502 for outdoor burning replaces repealed section 501.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: James Randles, 1600 South Second Street, Mt. Vernon, 98273, (360) 428-1617 ext. 208.
Name of Proponent: Northwest Air Pollution Authority, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: See Summary above.
Proposal Changes the Following Existing Rules: See Summary above.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Not required.
RCW 34.05.328 does not apply to this rule adoption.
Hearing Location: NWAPA Hearing Room, 1600 South Second Street, Mt. Vernon, WA 98273-5202, on June 14, 2001, at 1:30 p.m.
Assistance for Persons with Disabilities: Contact Susan Cosby by May 31, 2001, (360) 428-1617 ext. 200.
Submit Written Comments to: James Randles, 1600 South Second Street, Mt. Vernon, WA 98273-5202, fax (360) 428-1620, by June 14, 2001.
Date of Intended Adoption: June 14, 2001.
April 26, 2001
SECTION 501 - OUTDOOR BURNING
SECTION 502 - OUTDOOR BURNING
502.1 PURPOSE. This section establishes a program to implement the limited burning policy authorized by sections of the Washington Clean Air Act (chapter 70.94 RCW) pertaining to outdoor burning. The limited outdoor burning policy requires Ecology and other agencies to:
A. Reduce outdoor burning to the greatest extent practical, consistent with the laws and regulations of the State of Washington.
B. Establish a permit program for limited burning, including procedures by which outdoor burning may be conducted.
C. Foster and encourage the development of reasonable alternatives to outdoor burning.
A. This section specifically applies to:
1. Residential burning.
2. Land clearing burning.
3. Recreational fires.
4. Indian ceremonial fires.
5. Weed abatement fires.
6. Fire fighting instruction fires.
7. Rare and endangered plant regeneration fires.
8. Storm or flood debris burning.
9. Other outdoor burning.
B. This section does not apply to:
1. Agricultural Burning (which is governed by chapter 173-430 WAC);
2. Any outdoor burning on lands within the exterior boundaries of Indian reservations (unless provided for by intergovernmental agreements); and
3. Silvicultural burning (which is governed by chapter 332-24 WAC, the Washington state smoke management plan, and various laws including chapter 70.94 RCW).
502.3 DEFINITIONS. Unless a different meaning is clearly required by context, words and phrases used in this section shall have the following meanings:
A. AGRICULTURAL BURNING - means outdoor burning regulated under Chapter 173-430 WAC, including, but not limited to, any incidental agricultural burning or agricultural burning for pest or disease control.
B. AIR POLLUTION EPISODE - means a period when a forecast, alert, warning, or emergency air pollution stage is declared, as stated in Chapter 173-435 WAC.
C. COMMERCIAL OUTDOOR BURNING - means outdoor burning conducted as part of any commercial or business operation.
D. CONSTRUCTION/DEMOLITION DEBRIS - means any material manufactured for or resulting from the construction, renovation, or demolition of buildings, roads, and other man-made structures.
E. FIRE FIGHTER INSTRUCTION FIRES - means fires for instruction in methods of fire fighting, including, but not limited to, training to fight structural fires, aircraft crash rescue fires, and forest fires.
F. FIREWOOD - means bare, untreated wood used as fuel in a solid fuel burning device, Indian ceremonial fire, or recreational fire.
G. IMPAIRED AIR QUALITY - for purposes of outdoor burning, means a condition declared by Ecology or the Authority when meteorological conditions are conducive to an accumulation of air contaminants, concurrent with at least one of the following criteria (WAC 173-433-140):
1. Particulate that is ten microns and smaller in diameter (PM-10) at or above an ambient level of sixty micrograms per cubic meter measured on a 24-hour average (RCW 70.94.473); or
2. Carbon monoxide at or above an ambient level of eight parts of contaminant per million parts of air by volume (ppm) measured on an eight-hour average; or
3. Particulate that is two and one-half microns or smaller in diameter (PM2.5) at or above an ambient level of 15 micrograms per cubic meter of air measured on a 24-hour average; or
4. Air quality that threatens to exceed other limits established by the Authority.
H. INDIAN CEREMONIAL FIRE - means fires necessary for Native American ceremonies (i.e., conducted by and for Native Americans) if part of a religious ritual.
I. LAND CLEARING BURNING - means outdoor burning of trees, stumps, shrubbery or other natural vegetation from landclearing projects (i.e., projects that clear the land surface so it can be developed, used for a different purpose, or left unused). (RCW 70.94.750(2)).
J. NATURAL VEGETATION - means unprocessed plant material from herbs, shrubbery, and trees, including grass, weeds, leaves, clippings, prunings, brush, branches, roots, stumps, and trunk wood.
K. NONATTAINMENT AREA - means a clearly delineated geographic area which has been designated by the Environmental Protection Agency because it does not meet (or it contributes to ambient air quality in a nearby area that does not meet) a national ambient air quality standard or standards for one or more of the criteria pollutants, which include carbon monoxide, particulate matter (PM-10 and PM2.5), sulfur dioxide, nitrogen dioxide, lead, and ozone.
L. NONURBAN AREAS - means unincorporated areas within a county that are not designated as an urban growth area.
M. NUISANCE - for purposes of outdoor burning, means an emission of smoke or any other emission from an outdoor fire that interferes with the use and enjoyment of the property upon which it is deposited.
N. OTHER OUTDOOR BURNING - means outdoor burning other than agricultural burning, silvicultural burning, residential burning, land clearing burning, storm or flood debris burning, tumbleweed burning, weed abatement fires, fire fighting instruction fires, rare and endangered plant regeneration fire, Indian ceremonial fires, and recreational fires. It includes, but is not limited to, any outdoor burning necessary to protect public health and safety.
O. OUTDOOR BURNING - means the combustion of any material in an open fire or in an outdoor container, other than an incinerator, furnace, or other combustion device approved in advance by the Authority, without providing for the control of combustion or the control of emissions from the combustion. Outdoor burning means all types of outdoor burning except agricultural burning and silvicultural burning.
P. PERMITTING AGENCY - means the agency responsible for issuing permits for a particular type of burning (including adopting a general permit) and/or enforcing all requirements of this section unless another agency agrees to be responsible for certain enforcement activities in accordance with WAC 173-425-060 (1)(a) and (6).
Q. POLLUTANTS EMITTED BY OUTDOOR BURNING - means carbon monoxide, carbon dioxide, particulate matter, sulfur dioxide, nitrogen oxides, lead, and various volatile organic compounds and toxic substances.
R. REASONABLE ALTERNATIVE - means a method for disposing of organic refuse (such as natural vegetation) that is available, reasonably economical, and less harmful to the environment than burning, including but not limited to, waste reduction, recycling, energy recovery or incineration, and landfill disposal.
S. RECREATIONAL FIRE - means cooking fires, campfires, and bonfires using charcoal or firewood that occur in designated areas or on private property for cooking, pleasure, or ceremonial purposes. Fires used for debris disposal purposes are not considered recreational fires.
T. RESIDENTIAL BURNING - means the outdoor burning of leaves, clippings, prunings and other yard and gardening refuse originating on the maintained area of residential property (i.e. lands immediately adjacent and in close proximity to a human dwelling) and burned on such lands by the property owner and/or any other responsible person.
U. RESPONSIBLE PERSON - means any person who has applied for and received a permit for outdoor burning, or any person allowing, igniting or attending to an outdoor fire, or any person who owns or controls property on which an outdoor fire occurs.
V. SILVICULTURAL BURNING - means outdoor burning on any unimproved land the Department of Natural Resources protects pursuant to RCW 70.94.030(20), RCW 70.94.660, RCW 70.94.690 and pursuant to Chapter 76.04 RCW.
W. STORM OR FLOOD DEBRIS BURNING - means fires consisting of natural vegetation deposited on lands by storms or floods, within the previous two years, in which an emergency was declared or proclaimed in the area by the city, county, or state government and burned on such lands by the property owner or his or her designee.
X. URBAN GROWTH AREA - means an area defined by RCW 36.70A.030.
Y. WEED ABATEMENT FIRES – means any outdoor burning to dispose of weeds that is not regulated under chapter 173-430 WAC, the Agricultural Burning rule.
502.4 PROHIBITIONS AND RESTRICTIONS APPLYING TO ALL OUTDOOR BURNING. The following general requirements apply to all outdoor burning regulated by this section, including any outdoor burning allowed without a permit, unless a specific exception is stated in this section.
A. No person may cause or allow an outdoor fire in an area where the type of burning involved is prohibited under WAC 173-425-040, or where it requires a permit under WAC 173-425-060(2), unless a permit has been issued and is in effect.
B. A fire protection agency, county, or conservation district may enforce its own controls that are stricter than those set forth in this section.
C. PROHIBITED MATERIALS. It shall be unlawful for any person to cause or allow any outdoor fire containing garbage, dead animals, asphalt, petroleum products, paints, rubber products, plastics, paper (other than what is necessary to start a fire), cardboard, treated wood, construction/demolition debris, metal or any substance other than natural vegetation. Except as follows when authorized by the Authority:
1. Aircraft crash rescue training fires approved and conducted in compliance with RCW 70.94.650(5) may contain uncontaminated petroleum products. (RCW 70.94.650(6)
2. Other fire fighting instruction fires, including those that are exempt from permits under WAC 173-425-060 (2)(f), and other outdoor burning necessary to protect public health and safety (RCW 70.94.650(7), containing limited prohibited materials, may be allowed by Ecology or the Authority.
3. Diseased animals and other infested material when ordered by a duly authorized health officer, as required, to keep the infestation from spreading.
4. Dangerous material when ordered by a fire protection agency to dispose of materials presenting danger to life, property, or public welfare may be burned, if no approved practical alternative method of disposal is available.
D. HAULED MATERIAL. No outdoor fire may contain material (other than firewood) that has been hauled from an area where outdoor burning of the material is prohibited.
1. Any outdoor burning of material hauled from areas where outdoor burning of the material is allowed requires an appropriate permit.
2. Any property used for the purpose of outdoor burning, where outdoor burning of the material is allowed on an on-going basis, must:
a. Be limited to the types of burning listed in WAC 173-351-200 (5)(b) (criteria for municipal solid waste landfills), and
b. Approved in accordance with other laws, including WAC 173-304 (Minimum functional standards for solid waste handling and WAC 173-400 (General regulations for air pollution sources). (RCW 70.94.745(6)
E. CURTAILMENTS. During episodes or periods of impaired air quality, the person responsible for the fire must contact the permitting agency and/or any other designated source for information on the burning conditions for each day.
1. No outdoor fire shall be ignited in a geographical area:
a. Where Ecology has declared an air pollution episode; (RCW 70.94.775(2) and 70.94.780) or
b. Where Ecology or the Authority has declared impaired air quality.
c. Defined as Island County if impaired air quality is declared in both Skagit and Whatcom counties.
d. Where the appropriate fire protection authority has declared a fire danger burn ban, unless the Authority grants an exception.
2. The person responsible for an outdoor fire must extinguish the fire when an air pollution episode, or impaired air quality condition, or fire danger burn ban that applies to the burning, is declared.
3. Smoke visible from all types of outdoor burning, except land clearing burning, after a time period of three hours has elapsed from the time an air pollution episode, impaired air quality, or fire danger burn ban is declared will constitute prima facie evidence of unlawful outdoor burning.
4. Smoke visible from land clearing burning after a time period of eight hours has elapsed from the time an air pollution episode, impaired air quality, or fire danger burn ban is declared, will constitute prima facie evidence of unlawful outdoor burning.
F. UNLAWFUL OUTDOOR BURNING/NUISANCE: It is unlawful for any person to cause or allow outdoor burning that causes an emission of smoke or any other air contaminant that is detrimental to the health, safety, or welfare of any person, that causes damage to property or business, or that causes a nuisance.
1. Any person affected by outdoor burning may file a complaint with the permitting agency or other designated enforcing agency.
2. Any agency responding to an outdoor burning complaint should attempt to determine if the burning on any particular property is unlawful.
3. Any person responsible for such unlawful outdoor burning must immediately extinguish the fire.
G. BURNING IN OUTDOOR CONTAINERS. Outdoor containers (such as burn barrels and other incinerators not regulated under WAC 173-400-070(1) used for outdoor burning, must be constructed of concrete or masonry with a completely enclosed combustion chamber and equipped with a permanently attached spark arrester constructed of iron, heavy wire mesh, or other noncombustible material with openings not larger than one-half inch, and they may only be used in compliance with this section.
H. OTHER GENERAL REQUIREMENTS
1. A person capable of extinguishing the fire must attend it at all times and the fire must be extinguished before leaving it.
2. No fires are to be within fifty feet of structures.
3. Permission from a landowner, or owner's designated representative, must be obtained before starting an outdoor fire.
502.5 OUTDOOR BURNING PERMIT PROGRAM/REQUIREMENTS
A. General Requirements.
1. The Authority may consult with fire protection authorities, conservation districts, or counties to determine if any of these agencies are capable and willing to serve as the permitting agency and/or enforcing agency for particular types of burning.
2. The Authority may enter into agreements with any capable agencies to identify the permitting agencies and enforcing agencies for each type of burning and determine the type of permit appropriate for each where a permit is required.
3. Permitting agencies may use a verbal, electronic, written, or general permits established by rule for any type of burning that requires a permit: Provided that a written permit should be used, where feasible, for certain types of burning.
4. A written permit should be used for land clearing burning, storm or flood debris burning in areas where residential burning and land clearing burning are prohibited or other outdoor burning has been banned under WAC 173-425-040 (1), (2), or (3).
5. A fire protection authority may declare a fire hazard in areas where outdoor burning is banned and in areas where outdoor burning is allowed. If outdoor burning is determined to be the most appropriate manner to abate a fire hazard, the fire protection authority must request from the Authority permission to burn. Permits issued under section 502.614 shall provide that:
a. Prohibited material shall not be burned.
b. Outdoor burning shall not be conducted during a period of impaired air quality.
c. No reasonable alternative is available.
d. No outdoor burning shall be conducted in areas that exceed federal or state ambient air quality standards for carbon monoxide and/or PM-10. Such areas shall be defined as nonattainment areas for these pollutants.
e. Failure to abide by conditions of an outdoor burning permit shall be unlawful.
f. The rule for a general permit must establish periods of time when any burning under the permit must occur and must include all appropriate conditions for burning such as requirements for good combustion and restricting burning to specific weather conditions.
B. TYPES OF BURNING THAT REQUIRE A PERMIT. Except as otherwise stated, a permit is required for the following types of outdoor burning in all areas of the state:
1. Residential burning (except in nonurban areas of any county with an unincorporated population of less than fifty thousand;
2. Land clearing burning;
3. Storm or flood debris burning;
4. Tumbleweed burning (except in counties with a population of less than two hundred fifty thousand);
5. Weed abatement fires;
6. Fire fighting instruction fires for training to fight structural fires in urban growth areas and cities with a population over ten thousand, and all other fire fighting instruction fires, EXCEPT:
a. Fire fighting instruction fires for training to fight structural fires as provided in RCW 52.12.150; and
b. Aircraft crash rescue fires as provided in RCW 70.94.650 (5); and
c. Forest fires as provided in RCW 70.94.650 (1)(b).
7. Rare and endangered plant regeneration fires;
8. Indian ceremonial fires (except on lands within the exterior boundaries of Indian reservations unless provided for by intergovernmental agreement);
9. Recreational fires with a total fuel area greater than three feet in diameter and/or two feet in height (except in the nonurban areas of counties with an unincorporated population of less than fifty thousand;
10. Other outdoor burning if specifically authorized by the local air authority or ecology.
1. Permitting agencies may charge a fee for any permit issued, provided that a fee must be charged for all permits issued for weed abatement fires and fire fighting instruction fires.
2. All fees must be set by rule and must not exceed the level necessary to recover the costs of administering and enforcing a permit program.
|TYPE OF PERMIT||FEE|
|Weed abatement||$25.00 minimum/up to ten acres
1. Permitting agencies must approve with conditions, or deny outdoor burning permits as needed to achieve compliance with this section.
2. All permits must include conditions to satisfy general prohibitions and requirements that apply to all outdoor burning.
3. All permits may require other conditions, such as restricting the time period for burning, restricting permissible hours of burning, imposing requirements for good combustion practice, and restricting burning to specified weather conditions.
4. Permitting agencies may also include conditions to comply with other laws pertaining to outdoor burning.
E. RESIDENTIAL BURNING BY GENERAL PERMIT.
1. A general permit for residential burning is adopted for use:
a. Where the Authority has adopted the general permit by reference, and
b. Any designated enforcing agencies have agreed that a general permit is appropriate for residential burning, and
c. The public has been notified where the permit applies.
2. All burning under a general permit must:
a. Comply with condition (4) of this subsection.
b. Be restricted to the first and second weekends (Saturday and Sunday) in April and the third and fourth weekends in October unless the enforcing agency substitutes alternative days and adequate notice of the substitution is provided to the public. Alternative days may only be substituted if conditions on the prescribed days are unsuitable due to such things as poor air quality, high fire danger, unfavorable meteorology, likely interference with a major community event, or difficulty for enforcement.
3. The Authority may adopt a general permit for residential burning that prescribes a different set of days, not to exceed eight days per year, provided that adequate public notice of where and when the permit will apply is given.
4. The following conditions apply to all residential burning allowed, in the nonurban areas of any county with an unincorporated population of less than fifty thousand, without a permit or allowed under a general, verbal, or electronic permit. Persons unable to meet these and any other requirements must apply and receive a written permit before burning. Failure to comply with all requirements voids any applicable permit.
a. The person responsible for the fire must contact the permitting agency and/or any other designated source for information on the burning conditions of each day.
b. A fire may not be ignited, and must be extinguished, if an air pollution episode, impaired air quality condition, or fire danger burn ban that applies to the burning, is declared for the area.
c. The fire must not include prohibited materials, construction/demolition debris or any substance other than natural vegetation.
d. The fire must not include materials hauled from another property.
e. If any emission from the fire is detrimental to the health, safety, or welfare of any person, if it causes damage to property or business, or if it causes a nuisance, the fire must be extinguished immediately.
f. A person capable of extinguishing the fire must attend it at all times and the fire must be extinguished before leaving it.
g. No fires are to be within fifty feet of structures.
h. Permission from a landowner, or owner's designated representative, must be obtained before starting an outdoor fire.
i. Any burn pile must not be larger than four feet in diameter and three feet high.
j. Only one pile at a time may be burned, and each pile must be extinguished before lighting another.
k. If an outdoor container is used for burning, it must be constructed of concrete or masonry with a completely enclosed combustion chamber and equipped with a permanently attached spark arrester constructed of iron, heavy wire mesh, or other noncombustible material with openings not larger than one-half inch.
l. No fire is permitted within five hundred feet of forest slash.
F. FIELD RESPONSE AND ENFORCEMENT
1. Any agency that issues permits, or adopts a general permit for any type of burning in an area, is responsible for field response to outdoor burning complaints and enforcement of all permit conditions and requirements unless another agency has agreed to be responsible.
2. Except for enforcing Section 502.4.D.1.e, the Authority will be responsible for enforcing any requirements that apply to burning that are prohibited or exempt from permits in areas of its jurisdiction, unless another agency agrees to be responsible. 3. Permitting agencies and enforcing agencies may require that corrective action be taken, and may assess penalties to the extent allowed under their authority if they discover noncompliance.
4. A fire protection authority called to respond to, control, or extinguish an illegal or out-of-control fire may charge, and recover from the person responsible for the fire, the costs of its response and control action. The NWAPA may assist a fire protection authority, in fire suppression cost recovery, when assessing a penalty associated with a Notice of Violation.
502.6 AREAS AND TYPES OF PROHIBITED OUTDOOR BURNING.
A. Nonattainment areas. Residential burning and land clearing burning may not be allowed in any areas of the state that exceed federal or state ambient air quality standards for pollutants emitted by outdoor burning as identified in WAC 173-425-040(1).
B. Urban Growth Areas. Residential burning and land clearing burning may not be allowed in any urban growth areas except as follows:
1. Residential burning and land clearing burning may be allowed, until December 31, 2006, in urban growth areas for incorporated cities with a population of less than five thousand that are neither within nor contiguous with any areas identified in section 502.6.A.
2. Residential burning and land clearing burning may be allowed, until December 31, 2006, in urban growth areas that do not include an incorporated city.
C. Cities over 10,000 population. Residential burning and land clearing burning may not be allowed in any cities having a population greater than ten thousand people after December 31, 2000.
D. High density areas. Land clearing burning may not be allowed in any area having a general population density of one thousand or more persons per square mile after December 31, 2000, if the area is contiguous with any area where land clearing burning has already been, or must be, prohibited under subsection (A), (B), or (C) of this section. Land clearing burning may not be allowed in any other areas having this density after December 31, 2006.
E. Areas with a reasonable alternative to burning. Residential burning, land clearing burning, storm or flood debris burning, tumbleweed burning, weed abatement fires and other outdoor burning of organic refuse may not be allowed in any area of the state, including the areas identified in subsections 502.6.A-502.6.D, when a reasonable alternative for that type of burning is found to exist. A reasonable alternative for a particular type of burning exists when the alternative is available and reasonably economical and less harmful to the environment as defined in (WAC 173-425-040(5).
F. By December 31, 2000 and at least every third year thereafter, each local air authority, and ecology in cooperation with counties must determine whether any reasonable alternative for a particular type of burning, where burning of that type is allowed, exists. Determinations for other outdoor burning must be made on a permit-by-permit basis to determine whether an alternative is available and reasonably economical and less harmful to the environment. A reasonable alternative exists when the option is available, reasonably economical, and less harmful to the environment as stated in WAC 173-425-040(5).
502.7 ADDITIONAL REQUIREMENTS FOR LAND CLEARING BURNING. The following "best available burning practices" shall be used when land clearing burns are conducted on land not subject to the Forest Protection Assessment (RCW 76.04.610). Land clearing burning conducted on lands subject to the Forest Protection Assessment is regulated by the Washington Department of Natural Resources under WAC 332-24-201.
A. No land clearing fire shall be larger than fifty (50) feet in diameter and be located less than five times the fire diameter size from any structure.
B. At least one fan rated and operated at 6,000 cubic feet per minute must be on site for each twenty-five (25) feet of fire diameter and must be used to facilitate ignition and burning.
C. Material for a fire must be free of excess dirt and machine stacked by an excavator or equivalent machine, which must be on site and employed until fire is fully extinguished. The ratio of stack height to burn pile diameter shall be as high as possible but no less than 1:2.
D. The number of fires per parcel, defined as a single, integrated, land area that is being cleared by a party, shall not exceed more than two piles per excavator, except that, two additional fires may be lit when the two fires are approximately seventy-five percent consumed.
E. A person qualified to operate stacking or equivalent machinery shall be present at the immediate fire site during burning.
F. Burning shall be conducted in such a manner as to prevent any smoke and/or particulate matter from being emitted that is or is likely to restrict visibility on a public road or airport landing strip.
G. Outdoor fires for the purpose of land clearing burning must have a written permit from the appropriate fire permitting agency. Not withstanding the restrictions listed in sections 502.6.A through 502.6.G above, all land clearing fires must meet any additional conditions listed on the permit and all other applicable air pollution regulations.
H. No fires shall be permitted for the burning of material generated from land clearing projects located in areas where a burn ban exists.
I. It shall be unlawful for any person to cause or allow the burning of material generated from land clearing projects located in areas where a burn ban exists.
J. It shall be unlawful for any person to cause or allow the burning of any land clearing material that has not been generated on that site.
502.8 Additional requirements for commercial establishments.
A. No outdoor burning is allowed at permanently located commercial establishments excluding land clearing operations. The Northwest Air Pollution Authority may issue fire permits on a case-by-case basis for extenuating circumstances e.g., mitigating an immediate threat to human health or safety.
PASSED: June 14, 2001.
Reviser's note: The typographical errors in the above material occurred in the copy filed by the Northwest Air Pollution Authority and appear in the Register pursuant to the requirements of RCW 34.08.040.