WSR 01-08-020


[ Filed March 27, 2001, 11:00 a.m. ]

March 23, 2001

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.


Gary Locke


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

Washington State Code Reviser's Office