WAC 173-430-040   Agricultural burning requirements.  (1) Agricultural burning is allowed when it is reasonably necessary to carry out the enterprise. A farmer can show it is reasonably necessary when it meets the criteria of the best management practices and no practical alternative is reasonably available. In certain circumstances, ecology may certify an alternative to burning. Where the certified alternative is reasonably available, burning is not allowed. Certified alternatives are described in WAC 173-430-045.

     (2) For allowed agricultural burning, the department of ecology or local air authorities with jurisdiction will make daily or specific fire burn calls (during times of anticipated burning) and use metering when necessary to minimize the potential for adverse air quality impacts. Metering is a technique of limiting emission from burning at specific times and places by taking into account potential emission rates, forecasted weather (dispersion), and current and projected air quality. The burn decision process will consider: The potential number of burns and their expected size(s) and duration(s); recent and current ambient concentrations of pollutants; other potential emissions sources; and evaluations and judgments about how foreseeable meteorological conditions will affect concentrations of pollutants in the air sheds.

     (a) For the purposes of this section: The smoke management index is a set of conditions that guide the production of certain reports as described in (c) of this subsection and evaluations as described in (d) of this subsection. The smoke management index is not an air quality standard as defined in RCW 70.94.030(4) and further identified in RCW 70.94.331. The smoke management index is not an emission standard as defined in RCW 70.94.030(9) and further identified in RCW 70.94.331. The smoke management index is not an air pollution episode as described in RCW 70.94.710.

     (b) Ecology and local air authorities making daily or specific fire burn calls in areas where PM2.5 concentrations are regularly monitored will follow the procedures in (c) of this subsection at the time of making the burn decision whenever either of the following smoke management index conditions exist:

     (i) A most recent daily average (twenty-four-hour) PM2.5 concentration was equal to or greater than 16 micrograms per cubic meter. This is division between "good" and "moderate" classifications of the U.S. Environmental Protection Agency's Air Quality Index (AQI) for particulate matter based on the National Ambient Air Quality Standard of 65 micrograms per cubic meter.

     (ii) A two-hour rolling average PM2.5 concentration, during the most recent twenty-four to thirty hours was equal to or greater than the regional seasonal average PM2.5 concentration plus 15 micrograms per cubic meter.

     (c) In authorizing additional burning, a determination will be documented explaining that the decision to allow additional burning is not expected to result in a further significant deterioration of air quality. The determination will be entered on a standard form noting the date, time, the location of the additional burning, the size of the burn(s), and a brief explanation of the opinion as to why the additional burning is not expected to result in a further, significant reduction of air quality. The purpose of the determination and recordkeeping requirements of this section is to enhance agency and public understanding of the effectiveness of the daily burn and metering decision-making process, and to improve its application over time. A notice of such determinations will be made by ecology or a local air authority with jurisdiction at the time the daily burn decision is communicated. Ecology or a local air authority with jurisdiction will also periodically make the determination forms conveniently available to the public.

     (d) Following a determination described in (c) of this subsection and a deterioration of air quality to levels equal to or greater than a two-hour rolling average concentration of the regional seasonal average PM2.5 concentration plus 25 micrograms per cubic meter in the specific area during the twenty hours following such determination, ecology or the local air authority with jurisdiction will evaluate the deterioration and document any findings and opinions regarding why the deterioration occurred. Ecology or the local air authority with jurisdiction will make evaluations under this subsection conveniently available to the public.

     (e) Ecology or a local air authority with jurisdiction may evaluate emission dispersion impacts in the regular course of business. In addition, ecology or the local air authority with jurisdiction will produce an annual report summarizing determinations and evaluations pursuant to the smoke management index.

     (f) Pursuant to RCW 70.94.473 and 70.94.775, no burning shall be authorized when an air quality alert, warning, emergency or impaired air quality condition has been issued.

     (g) For purposes of protecting public health (not eliminating agricultural burning), if an area exceeds or threatens to exceed unhealthy air pollution levels, the permitting authority may limit the number of acres, on a pro rata basis as provided by RCW 70.94.656 and/or by RCW 70.94.650.

     (3) Except as described in WAC 173-430-020(5), all agricultural burning requires a permit.

     (a) Ecology or local air authorities with jurisdiction will provide agricultural burning application forms for agricultural burning.

     (b) To qualify for an agricultural burning permit the farmer must be an agricultural operation or government entity with specific agricultural burning needs, such as irrigation districts, drainage districts, and weed control boards.

     (c) A farmer must fill out the information requested on a permit application, pay the permitting fee, and submit it to the permitting authority for review and approval prior to burning.

     (i) The application must describe the reason for burning and include at least the following information: Name and address of the person or corporation responsible for the burn, the specific location (county; legal description: Section, township, range, block and unit number), the crop type, the type or size of the burn, driving directions to the burn, specific reason for the burn, the target date for burning, a map, signature of the responsible party, and any additional information required by the permitting authority. Each permitting authority may require additional information on the application.

     (ii) All applications must comply with other state or local regulations.

     (d) The permitting authority must evaluate the application, and approve the permit prior to burning.

     (e) Permit decisions including the issuance, denial, or conditioning must be based on consideration of air quality conditions in the area affected by the proposed burning, the time of year, meteorological conditions, the size and duration of the proposed burning activity, the type and amount of vegetative material to be burned, the applicant's need to carry out such burning, existence of extreme burning conditions, risk of escape onto property owned by another, and the public's interest in the environment.

     (f) Ecology or its delegate, or a local air authority with jurisdiction, or its delegate must approve or deny the permit in part or in whole based on information in the application.

     (g) Ecology and its delegate or a local air agency with jurisdiction or its delegate may issue permits for appropriate agricultural burning activities in nonattainment areas, maintenance areas, and urban growth areas as described in RCW 70.94.743.

     (4) All agricultural burning permits require a fee. Maximum fee level is set by statute at two dollars and fifty cents per acre (RCW 70.94.650(2)) and is established by the agricultural burning practices and research task force (RCW 70.94.650(4)). The fee is the greater of a minimum fee level or a variable fee level.

     (a) Minimum fee levels:

     (i) Twenty-five dollars per calendar year per agricultural operation based on burning up to ten acres or equivalent;

     (ii) Fifty dollars for orchard tear-out burning per calendar year per agricultural operation based on burning debris from up to twenty acres or equivalent.

     (b) The variable fee level (based on the acreage or equivalent):

     (i) Through the calendar year 2007, the fee is two dollars per acre.

     (ii) Beginning in calendar year 2008, the fee is two dollars and twenty-five cents per acre.

     (c) Permit fee uses. The permit fee is used to off-set the cost of administering and enforcing the agricultural burning permit program. There are three components: Local administration, research, and ecology administration.

     (i) Local permitting program administration. The permitting authority may set the fee as an amount per agricultural operation per calendar year, a set amount per fire, or a set rate no greater than one dollar and twenty-five cents per acre burned. The permitting authority must establish this portion of the fee by an appropriate, public process such as a local rule, ordinance, or resolution. In areas of the state where the department has not delegated permitting authority, this portion of the fee shall be one dollar and twenty-five cents per acre burned.

     (ii) Ecology administration. This portion of the fee shall be used to off-set the statewide administrative, education, and oversight costs of the department for the agricultural burning program.

     (iii) Research fund. The agricultural burning applied research portion of the fee shall be no greater than one dollar per acre burned. The amount assessed may be less than one dollar per acre burned as periodically determined by the agricultural burning practices and research task force based on applied research needs, regional needs and the research fund budget. The agricultural burning practices and research task force may also establish discounted assessment rates based on the use of best management practices.

     (iv) The chart below shows the permit fee break-out per category:

Fee Level	Section	Local Administration	Research	Ecology Administration
$25.00	WAC 173-430-040 (4)(a)(i)	$12.50	$12.50	-0-
$50.00	WAC 173-430-040 (4)(a)(ii)	$12.50	$12.50	$25.00
2006 - $2.00 per acre	WAC 173-430-040 (4)(b)(i)	Up to $1.25 per acre	50 cents per acre	25 cents per acre
2007 - $2.00 per acre	WAC 173-430-040 (4)(b)(i)	Up to $1.25 per acre	25 cents per acre	50 cents per acre
2008 and beyond - $2.25 per acre	WAC 173-430-040 (4)(b)(ii)	Up to $1.25 per acre	50 cents per acre	50 cents per acre

     (d) A farmer must pay the fee when submitting the application. Refunds are allowed for portions not burned provided the adjusted fee after subtracting refunds is no less than twenty-five dollars.

     (e) The agricultural burning practices and research task force may set acreage equivalents, for nonfield style agricultural burning practices, based on the amount of emissions relative to typical field burning emissions. Any acreage equivalents, established by rule, shall be used in determining fees. For agricultural burning conducted by irrigation or drainage districts, each mile of ditch (including banks) burned is calculated on an equivalent acreage basis.

     (5) All agricultural burning permits must include conditions intended to minimize air pollution.

     (a) A farmer must comply with the conditions on the agricultural burning permit.

     (b) Permits must be conditioned to minimize emissions and impacts insofar as practical, including denial of permission to burn during periods of adverse meteorological conditions. When necessary as determined by ecology or the local air authorities to ensure compliance with the act, permit conditions will include the use of a daily burn decision, permit specific decisions and/or metering.

     (c) The permitting authority must act on a complete application (as determined by the agency) within seven days of receipt.

     (i) The permitting authority must evaluate the application and approve or deny all or part of it.

     (ii) The permitting authority must evaluate the application to determine if the requested burning is within the general or crop-specific best management practices.

     (iii) If the application is denied, the reason must be stated.

     (6) Additional requirements for burning of field and turf grasses grown for seed.

     The department of ecology will proceed with the process to certify alternatives to burning as identified in RCW 70.94.656(3). In addition to the certification process, ecology is also limiting the number of acres allowed to be burned as specified in RCW 70.94.656(4).

     (a) Beginning in 1997 and until approved alternatives become available, each farmer shall be limited to burning no more than one-third of the number of acres in grass seed production on May 1, 1996. "In production" means planted, growing and under the control of the farmer.

     Without regard to any previous burn permit history, in 1996, each farmer shall be limited to burning the greater of:

     (i) Two-thirds of the number of acres the farmer burned under a valid permit issued in 1995; or

     (ii) Two-thirds of the number of acres in grass seed production on May 1, 1996. "In production" means planted, growing and under the control of the farmer.

     (b) Exemptions to the requirements for burning of field and turf grasses grown for seed ((a) of this subsection). A farmer may request an exemption for extraordinary circumstances, such as property where a portion(s) of the field is oddly shaped or where the slope is extremely steep. This provision does not apply to WAC 173-430-045 Alternatives to burning field and/or turf grasses grown for seed. Under this subsection, relief from the acreage/emissions reduction requirements of (a) of this subsection shall be limited to no more than five percent of the acreage in production on May 1, 1996, and is also subject to the following provisions:

     (i) The exemption request must be certified by an agronomic professional;

     (ii) The farmer must be able to show full compliance with the emissions reductions in (a) of this subsection for the acreage not exempted; and

     (iii) The farmer must be in full compliance with permit requirements for other crops under WAC 173-430-040.

     (c) Measurement for emission reduction for grass seed field and turf grass. Ecology will use acres as the basis for determining emission reductions as provided by RCW 70.94.656, until another method(s) is shown to be better and meets with the intent of RCW 70.94.656(4). Ecology will investigate alternate methods, as they become available. If ecology finds that an alternate method is appropriate and meets the criteria, it may certify this method using an administrative order.

     (d) The department of ecology or local air authority may provide for trading of permits using the method described in this subsection. This trading system uses a straight transfer of acres, a transfer requiring mandatory compensation, or a combination of both. If ecology or the local air authority finds that emissions resulting from trading are creating a health impact, as defined by ecology or the local air authority, the trading system, once created, may be dissolved. This provision does not apply to WAC 173-430-045 Alternatives to burning field and/or turf grasses grown for seed.

     (i) Ecology or the local air authority may develop a system that allows the trading of permits by:

     (A) Adding a signed transfer line to the written permit that provides for a signature for the current holder of the permit;

     (B) Providing a tracking system that identifies the current holder of the permit, that identifies when the permit was last used to allow burning of acreage, and that allows the name of the holder to be changed if the transfer line is signed by the current holder;

     (C) Requiring that the new holder of the permit must turn in the permit with the signed transfer line at least sixty days before the new holder plans to burn; and

     (D) Assuring that the permits are used only once in a calendar year.

     (ii) By signing the transfer line on the permit the permit holder must indicate that he or she understands that the acres transferred may no longer be burned, that a permit for the acres transferred will not be issued to the signing permit holder in future years, and that the acres being transferred were not already burned during the calendar year during which the transfer takes place.

     (iii) Ecology and the local air authorities may add restrictions to the transfer of permits closer to areas with higher population densities.

     (iv) Only permits for acreage which has not yet been burned may be transferred or traded. The seller of the permit is responsible for permanently reducing the acreage burned by the amount of acreage transferred from January 1 of the year during which the transaction takes place.

     (v) Acreage that is exempted under (e) of this subsection is not eligible for the trading system.

     (vi) The authorities are encouraged to work together to use the same system and to allow trading between authority jurisdictions so as to allow the grass seed growers to adjust to the two-thirds overall reduction in acres permitted for burning as easily as possible.

     (e) Alternate open burning practices for field and turf grass grown for seed. Ecology acknowledges that there may be practices that involve some burning, but which produce emissions quantifiably below those of open field burning. If ecology finds that a practice involves open burning and still substantially reduces emissions below open field burning, ecology may certify the alternate burning practice(s) by administrative order. Any certified practice may be used to satisfy the acreage/emissions reduction requirements of (a) of this subsection provided:

     (i) The acreage application of the practice is adjusted to reflect effectiveness in reducing emissions so as to meet or exceed the emissions reduction required by (a) of this subsection; and

     (ii) In no case shall the emission reduction requirement for the field and turf grass grown for seed be less than that required in (a) of this subsection.

     (7) Other laws. A farmer must obtain any local permits, licenses, or other approvals required by any other laws, regulations, or ordinances. The farmer must also honor other agreements entered into with any federal, state, or local agency.



[Statutory Authority: RCW 70.94.650, 70.94.743, and 70.94.745. 06-16-052 (Order 04-10), § 173-430-040, filed 7/26/06, effective 8/26/06. Statutory Authority: RCW 70.94.656. 98-12-016 (Order 97-45), § 173-430-040, filed 5/26/98, effective 6/26/98. Statutory Authority: RCW 70.94.656(4). 97-03-021 (Order 96-05), § 173-430-040, filed 1/7/97, effective 2/7/97. Statutory Authority: RCW 70.94.650. 95-03-083 (Order 94-17), § 173-430-040, filed 1/17/95, effective 2/17/95; 93-14-022 (Order 92-58), § 173-430-040, filed 6/28/93, effective 7/29/93. Statutory Authority: RCW 70.94.331. 90-19-062 (Order 90-10), § 173-430-040, filed 9/17/90, effective 10/18/90; Order DE 77-20, § 173-430-040, filed 11/9/77. Formerly WAC 18-16-040.]