wa-law.org > bill > 2023-24 > SB 6121 > Substitute Bill
The legislature finds that the use of distributed, small-scale portable flame cap kilns for silvicultural and agricultural management of natural vegetation is consistent with the sustainable agriculture goals of the climate commitment act under RCW 70A.65.260, the sustainable farms and fields grant program identified in RCW 89.08.615, the use of fire in controlled burns to eliminate sources of fuel identified in RCW 76.04.167(3), and the forest restoration goals identified in RCW 70A.65.270. Therefore, the legislature finds that the use of distributed portable flame cap kilns is a necessary component of an integrated land management strategy that:
Reduces greenhouse gas emissions;
Produces durable biogenic carbon storage, either in situ or for distribution elsewhere; and
Minimizes air quality impacts from open burning.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
"Air contaminant" means dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substance, or any combination thereof.
"Air pollution" is presence in the outdoor atmosphere of one or more air contaminants in sufficient quantities and of such characteristics and duration as is, or is likely to be, injurious to human health, plant or animal life, or property, or which unreasonably interfere with enjoyment of life and property. For the purpose of this chapter, air pollution shall not include air contaminants emitted in compliance with chapter 17.21 RCW.
"Air quality standard" means an established concentration, exposure time, and frequency of occurrence of an air contaminant or multiple contaminants in the ambient air which shall not be exceeded.
"Ambient air" means the surrounding outside air.
"Authority" means any air pollution control agency whose jurisdictional boundaries are coextensive with the boundaries of one or more counties.
"Best available control technology" (BACT) means an emission limitation based on the maximum degree of reduction for each air pollutant subject to regulation under this chapter emitted from or that results from any new or modified stationary source, that the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such a source or modification through application of production processes and available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for control of each such a pollutant. In no event shall application of "best available control technology" result in emissions of any pollutants that will exceed the emissions allowed by any applicable standard under 40 C.F.R. Part 60 and Part 61, as they exist on July 25, 1993, or their later enactments as adopted by reference by the director by rule. Emissions from any source utilizing clean fuels, or any other means, to comply with this subsection shall not be allowed to increase above levels that would have been required under the definition of BACT as it existed prior to enactment of the federal clean air act amendments of 1990.
"Best available retrofit technology" (BART) means an emission limitation based on the degree of reduction achievable through the application of the best system of continuous emission reduction for each pollutant that is emitted by an existing stationary facility. The emission limitation must be established, on a case-by-case basis, taking into consideration the technology available, the costs of compliance, the energy and nonair quality environmental impacts of compliance, any pollution control equipment in use or in existence at the source, the remaining useful life of the source, and the degree of improvement in visibility that might reasonably be anticipated to result from the use of the technology.
"Board" means the board of directors of an authority.
"Control officer" means the air pollution control officer of any authority.
"Department" or "ecology" means the department of ecology.
"Emission" means a release of air contaminants into the ambient air.
"Emission standard" and "emission limitation" mean a requirement established under the federal clean air act or this chapter that limits the quantity, rate, or concentration of emissions of air contaminants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice, or operational standard adopted under the federal clean air act or this chapter.
"Fine particulate" means particulates with a diameter of two and one-half microns and smaller.
[Empty]
"Lowest achievable emission rate" (LAER) means for any source that rate of emissions that reflects:
The most stringent emission limitation that is contained in the implementation plan of any state for such class or category of source, unless the owner or operator of the proposed source demonstrates that such limitations are not achievable; or
The most stringent emission limitation that is achieved in practice by such class or category of source, whichever is more stringent.
In no event shall the application of this term permit a proposed new or modified source to emit any pollutant in excess of the amount allowable under applicable new source performance standards.
"Modification" means any physical change in, or change in the method of operation of, a stationary source that increases the amount of any air contaminant emitted by such source or that results in the emission of any air contaminant not previously emitted. The term modification shall be construed consistent with the definition of modification in Section 7411, Title 42, United States Code, and with rules implementing that section.
"Multicounty authority" means an authority which consists of two or more counties.
"New source" means (a) the construction or modification of a stationary source that increases the amount of any air contaminant emitted by such source or that results in the emission of any air contaminant not previously emitted, and (b) any other project that constitutes a new source under the federal clean air act.
"Permit program source" means a source required to apply for or to maintain an operating permit under RCW 70A.15.2260.
"Person" means an individual, firm, public or private corporation, association, partnership, political subdivision of the state, municipality, or governmental agency.
"Reasonably available control technology" (RACT) means the lowest emission limit that a particular source or source category is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. RACT is determined on a case-by-case basis for an individual source or source category taking into account the impact of the source upon air quality, the availability of additional controls, the emission reduction to be achieved by additional controls, the impact of additional controls on air quality, and the capital and operating costs of the additional controls. RACT requirements for a source or source category shall be adopted only after notice and opportunity for comment are afforded.
"Silvicultural burning" means burning of wood fiber on forestland or combustion of natural vegetation from silvicultural activities consistent with the provisions of RCW 70A.15.5120.
"Source" means all of the emissions units including quantifiable fugitive emissions, that are located on one or more contiguous or adjacent properties, and are under the control of the same person, or persons under common control, whose activities are ancillary to the production of a single product or functionally related group of products.
"Stationary source" means any building, structure, facility, or installation that emits or may emit any air contaminant.
"Trigger level" means the ambient level of fine particulates, measured in micrograms per cubic meter, that must be detected prior to initiating a first or second stage of impaired air quality under RCW 70A.15.3580.
"Flame cap kiln" means an outdoor container used for the combustion of natural vegetation from silvicultural or agricultural activities that meets the following requirements:
Has a solid or sealed bottom including, but not limited to, mineral soils, so that all air for combustion comes from above;
Is completely open on top with no restrictions;
Is a shallow container where the width is greater than the height; and
Has a volume of 10 cubic meters or less.
Any person who proposes to set fires in the course of agricultural activities shall obtain a permit from an air pollution control authority, the department of ecology, or a local entity delegated permitting authority under RCW 70A.15.5100. General permit criteria of statewide applicability shall be established by the department, by rule, after consultation with the various air pollution control authorities. For the purposes of this section, agricultural burning includes the combustion of natural vegetation from agricultural activities in portable flame cap kilns, provided that the biomass does not contain any prohibited materials as defined in RCW 70A.15.5010(1).
Permits shall be issued under this section based on seasonal operations or by individual operations, or both.
Incidental agricultural burning consistent with provisions established in RCW 70A.15.5070 is allowed without applying for any permit and without the payment of any fee.
The department of ecology, local air authorities, or a local entity with delegated permit authority shall:
Condition all permits to ensure that the public interest in air, water, and land pollution and safety to life and property is fully considered;
Condition all burning permits to minimize air pollution insofar as practical;
Act upon, within seven days from the date an application is filed under this section, an application for a permit to set fires in the course of agricultural burning for controlling diseases, insects, weed abatement, or development of physiological conditions conducive to increased crop yield;
Provide convenient methods for issuance and oversight of agricultural burning permits; and
Work, through agreement, with counties and cities to provide convenient methods for granting permission for agricultural burning, including telephone, facsimile transmission, issuance from local city or county offices, or other methods.
A local air authority administering the permit program under subsection (2) of this section shall not limit the number of days of allowable agricultural burning, but may consider the time of year, meteorological conditions, and other criteria specified in rules adopted by the department to implement subsection (2) of this section.
In addition to following any other requirements established by the department to protect air quality pursuant to other laws, applicants for permits must show that the setting of fires as requested is the most reasonable procedure to follow in safeguarding life or property under all circumstances or is otherwise reasonably necessary to successfully carry out the enterprise in which the applicant is engaged, or both. Nothing in this section relieves the applicant from obtaining permits, licenses, or other approvals required by any other law.
The department of ecology, the appropriate local air authority, or a local entity with delegated permitting authority pursuant to RCW 70A.15.5100 at the time the permit is issued shall assess and collect permit fees for burning under this section. All fees collected shall be deposited in the air pollution control account created in RCW 70A.15.1010, except for that portion of the fee necessary to cover local costs of administering a permit issued under this section. Fees shall be set by rule by the permitting agency at the level determined by the task force created by subsection (6) of this section, but fees for field burning shall not exceed $3.75 per acre to be burned or, in the case of pile burning, shall not exceed $1.00 per ton of material burned.
An agricultural burning practices and research task force shall be established under the direction of the department. The task force shall be composed of a representative from the department who shall serve as chair; one representative of eastern Washington local air authorities; three representatives of the agricultural community from different agricultural pursuits; one representative of the department of agriculture; two representatives from universities or colleges knowledgeable in agricultural issues; one representative of the public health or medical community; and one representative of the conservation districts. The task force shall:
Identify best management practices for reducing air contaminant emissions from agricultural activities and provide such information to the department and local air authorities;
Determine the level of fees to be assessed by the permitting agency pursuant to subsection (5) of this section, based upon the level necessary to cover the costs of administering and enforcing the permit programs, to provide funds for research into alternative methods to reduce emissions from such burning, and to the extent possible be consistent with fees charged for such burning permits in neighboring states. The fee level shall provide, to the extent possible, for lesser fees for permittees who use best management practices to minimize air contaminant emissions;
Identify research needs related to minimizing emissions from agricultural burning and alternatives to such burning; and
Make recommendations to the department on priorities for spending funds provided through this chapter for research into alternative methods to reduce emissions from agricultural burning.
Conservation districts and the Washington State University agricultural extension program in conjunction with the department shall develop public education material for the agricultural community identifying the health and environmental effects of agricultural outdoor burning and providing technical assistance in alternatives to agricultural outdoor burning.
[Empty]
Outdoor burning that is normal, necessary, and customary to ongoing agricultural activities, that is consistent with agricultural burning authorized under this section and RCW 70A.15.5110, is allowed within the urban growth area as described in RCW 70A.15.5020 if the burning is not conducted during air quality episodes, or where a determination of impaired air quality has been made as provided in RCW 70A.15.3580, and the agricultural activities preceded the designation as an urban growth area.
Outdoor burning of cultivated orchard trees, whether or not agricultural crops will be replanted on the land, shall be allowed as an ongoing agricultural activity under this section if a local horticultural pest and disease board formed under chapter 15.09 RCW, an extension office agent with Washington State University that has horticultural experience, or an entomologist employed by the department of agriculture, has determined in writing that burning is an appropriate method to prevent or control the spread of horticultural pests or diseases.
The department of natural resources is responsible for issuing and regulating burning permits required by it relating to the following activities for the protection of life or property and for the public health, safety, and welfare:
Abating or prevention of a forest fire hazard;
Reducing the risk of a wildfire under RCW 70A.15.5020(5);
Instruction of public officials in methods of forest firefighting;
Any silvicultural operation to improve the forestlands of the state, including but not limited to forest health and resiliency, decreasing forest insect or disease susceptibility, maintaining or restoring native vegetation, or otherwise enhancing resiliency to fire; and
Silvicultural burning used to improve or maintain fire dependent ecosystems for rare plants or animals within state, federal, and private natural area preserves, natural resource conservation areas, parks, and other wildlife areas.
The department of natural resources shall not retain such authority, but it shall be the responsibility of the appropriate fire protection agency for permitting and regulating outdoor burning on lands where the department of natural resources does not have fire protection responsibility, except for the issuance of permits for reducing the risk of wildfire under RCW 70A.15.5020(5). The department of natural resources may enter into cooperative agreements with local fire protection agencies to issue permits for reducing wildfire risk under RCW 70A.15.5020(5).
Permit fees shall be assessed for wildfire risk reduction, combustion of natural vegetation from silvicultural activities in portable flame cap kilns, and for silvicultural burning under the jurisdiction of the department of natural resources and collected by the department of natural resources as provided for in this section. All fees shall be deposited in the air pollution control account, created in RCW 70A.15.1010. The legislature shall appropriate to the department of natural resources funds from the air pollution control account to enforce and administer the program under this section and RCW 70A.15.5130, 70A.15.5140, and 70A.15.5150. Fees shall be set by rule by the department of natural resources at the level necessary to cover the costs of the program after receiving recommendations on such fees from the public.
The department of natural resources, in granting burning permits for fires for the purposes set forth in RCW 70A.15.5120, shall condition the issuance and use of such permits to comply to the extent feasible with air quality standards established by the department of ecology. Such burning shall not cause the state air quality standards to be exceeded in the ambient air up to two thousand feet above ground level over critical areas designated by the department of ecology, otherwise subject to air pollution from other sources. Air quality standards shall be established and published by the department of ecology which shall also establish a procedure for advising the department of natural resources when and where air contaminant levels exceed or threaten to exceed the ambient air standards over such critical areas. The air quality shall be quantitatively measured by the department of ecology or the appropriate local air pollution control authority at established monitoring stations over such designated areas. Further, such permitted burning shall not cause damage to public health or the environment. All permits issued under this section shall be subject to all applicable fees, permitting, penalty, and enforcement provisions of this chapter. The department of natural resources shall set forth smoke dispersal objectives designed consistent with this section to minimize any air pollution from such burning and the procedures necessary to meet those objectives.
[Empty]
The department of natural resources shall encourage more intense utilization in logging and alternative silviculture practices to reduce the need for burning. The department of natural resources shall, whenever practical, encourage landowners to develop and use alternative acceptable disposal methods subject to the following priorities:
Slash production minimization;
Slash utilization;
Nonburning disposal;
Silvicultural burning; and
Use of portable flame cap kilns.
Such alternative methods shall be evaluated as to the relative impact on air, water, and land pollution, public health, and their financial feasibility.
The department of natural resources shall not issue burning permits and shall revoke previously issued permits at any time in any area where the department of ecology or local board has declared a stage of impaired air quality as defined in RCW 70A.15.3580.