Ms. Karen Lindholdt
Center for Justice
35 West Main, Suite 300
Spokane, Washington 99201
Re: RCW 34.05.330(3) appeal of the January 12, 2001 denial
by the Washington Department of Ecology (the "Department")
of that certain petition to adopt a regulation regarding
wheat stubble burning, dated November 14, 2000 (the
"Petition").
Thank you for your letter dated February 5, 2001 and received by
my office on February 6, 2001, appealing the Department's January
12, 2001 decision denying the Petition.
Pursuant to RCW 34.05.330(3), I have carefully reviewed your
appeal, including all attachments submitted, and the relevant
statutes and regulations, and affirm the Department's decision.
It is my policy to intervene in matters presented to me under RCW 34.05.330(3) only when I believe the agency whose decision is at
issue has abused its discretion or acted arbitrarily or
capriciously. It is also my policy not to second-guess the
thoughtful and deliberate decisions of a state agency, so long as
those decisions are well founded and proper under the law. This
is an extremely high standard of review.
I have concluded that the Department complied with its
obligations under the Washington Clean Air Act, RCW 70.94 and has
a proper basis under that statute to deny the petition. I have
responded to each of your arguments in turn:
1. The Department has a legal duty to promulgate rules and adopt
regulations for wheat stubble burning in accordance with
Washington's Clean Air Act.
The Department has adopted regulations - Ch. 173-430 WAC - concerning agricultural burning. These regulations establish
requirements that correspond to the State Clean Air Act (RCW 70.94), directives for application of Best Management Practices,
use of permits by all growers choosing to burn, and criteria for
granting such permits. You assert that the Department must base
its regulations on a health-based assessment or cost-benefit
analysis of wheat stubble burning. As Mr. Fitzsimmons' denial of
your petition notes, the Department has not ruled out future
rule-making, but believes its current approach complies with the
Act. The Department is applying its regulations in taking
enforcement action, in controlling the discretion of local
authorities to determine acceptable days for burning, and in
conducting research on emissions from wheat stubble burning.
Thus, amendment of the rule is a discretionary act and the
Department is justified in choosing to delay acting until it is
fully prepared to do so in an effective and efficient manner.
2. The Department's regulations are ineffective and Washington
residents are suffering irreparable harm.
The Department has been making improvements to its wheat stubble
burn reduction program for several years. Most recently, the
agency added additional staff and equipment to its Eastern
Regional Office for the specific purpose of enhancing enforcement
of burn limitations, added monitoring stations to gather more
complete data about particulates, and incorporated wind direction
as a specific determinant of allowable burn days. Reductions in
burned acreage and increases in enforcement actions counter the
assertion that the regulations - supplemented by the voluntary
agreement with the Washington Association of Wheat Growers - are
ineffective.
While I sympathize with the many area residents, including those
you represent, who have suffered health effects from field
burning smoke, emissions from wheat field burning has not
violated the current standards for particulates adopted by the
Department. As recently as last month, an official with the
United States Environmental Protection Agency stated that
Washington's agricultural burning reduction program is the best
in the region, and said it was unlikely that other adjacent
states' programs could be brought up to Washington's level.
3. The Department's reasons for denying your petition are
inaccurate and not supported by the record.
You contend that because Department Director Tom Fitzsimmons
entered into a voluntary Memorandum of Understanding with the
Washington Association of Wheat Growers and declined to concur
with a mediated agreement reached by Save our Summers and
Department staff, he has demonstrated an appearance of a conflict
of interest and has chosen to exclusively represent the wheat
farmers. It is fully within the Department's discretion to seek
approaches to pollution reduction that are acceptable to the
regulated community as well as the affected public. While in
this instance your clients are dissatisfied with the approach
taken, the strategy that the Department has taken and explained
by Mr. Fitzsimmons in his denial, are valid under state and
federal law and rule.
Thank you for your extensive efforts to improve air quality and
public health. While the state has not taken all the steps you
would choose, it appears that much of the recent progress in
limiting wheat field burning has benefited from the pressure you
have exerted and your sustained commitment.
Sincerely,
Gary Locke
Governor
cc: Dennis W. Cooper, Code Reviser
Tim Martin, Co-Chief Clerk, House of Representatives
Cindy Zehnder, Co-Chief Clerk, House of Representatives
Tony Cook, Secretary of the Senate
Tom Fitzsimmons, Department of Ecology