WSR 10-09-103



[ Order 10-05 -- Filed April 21, 2010, 9:42 a.m. ]

     Subject of Possible Rule Making: Department of ecology (ecology) will update chapter 173-430 WAC, Agricultural burning to:

Adjust the field burning fee to cover the costs of administering and enforcing the permit programs,
Change the pile burning fee to a per ton fee rather than a per acre fee,
Address the finding in Ted Rasmussen Farms, LLC v. State of Washington, Department of Ecology, Docket # 22989-1-III (Rasmussen v. Ecology),
Make housekeeping changes for consistency with the authorizing statute.

     Statutes Authorizing the Agency to Adopt Rules on this Subject: Chapter 70, Laws of 2010 (SSB 6556) authorizes ongoing fee increases until the fee reaches the cap, RCW 70.94.6528.

     Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: The legislature authorizes ongoing agricultural burning fee increases until the fee reaches the $3.75 cap per acre for field burning and $1.00 per ton for pile burning.

     RCW 70.94.6528 (6)(b) directs the agricultural burning practices and research task force (task force) to set fees at a level to "cover the cost of administering and enforcing the programs" and provide research funds. Current fees only cover about 25% of costs. Increasing fees would bring the program closer to cost recovery. Since the state's general fund deficit could limit the amount of money available to subsidize the program, an agricultural burning permit program that pays for itself may prevent cuts to the program. This rule making will evaluate options for setting the fees in 2012 and later including the following:

Establishing a process to set the fee outside of rule making,
Including a fee structure for several years in the rule.

     Additionally, SSB 6556 (2010) introduced a per-ton fee for pile burns to replace the per-acre fee. The volume of piled material burned exceeds the volume of crop residue from a field of the same size. So, this fee structure provides a closer link to the amount of the fee and the quantity of material burned.

     Rasmussen v. Ecology requires ecology to remove language it found as outside of ecology's regulatory authority. Additionally, the rule requires a few housekeeping changes.

     Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: This rule making does not involve any federal agencies. Ecology will keep the department of natural resources and the department of agriculture updated on the progress of the rule making via a listserv and web site updates. Additionally, ecology will work with the local air authorities through the public meetings held by the task force.

     Process for Developing New Rule: Internal staff will draft the proposed rule. The agricultural burning practices and research task force will have the opportunity to review draft rule language. The public and interested parties will have the opportunity to comment on the proposed rule. Ecology will provide proposed amendments to interested parties, post them on the agency web site, and hold at least one public hearing.

     Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting Richelle Perez, Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-7528, fax (360) 407-7534, e-mail, web site

April 20, 2010

Stuart Clark

Air Quality Program Manager

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