HOUSE BILL NO. 391

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H0391.....................................................by WAYS AND MEANS
SMOKE MANAGEMENT/CROP RESIDUE BURNING - Amends and adds to existing law to
revise legislative findings; to provide requirements for crop residue
burning in certain counties; to provide for registration of fields with the
Department of Agriculture; to provide for authorization from the
department; to provide that required information for registration be
received by the department prior to field ignition; to authorize the
Department of Agriculture to make certain determinations and take certain
actions relating to violations of designated smoke management and crop
residue disposal provisions; to provide for penalties; to provide for
investigation and inspection; to provide for complaints; to revise
provisions relating to fees for burning of registered fields in designated
counties; to provide for payment of fees to the Department of Agriculture;
to delete reference to rulemaking by the Board of Health and Welfare
regarding fees for crop burning; to revise provisions for use of moneys
from the Agricultural Smoke Management Account; and to delete provisions
relating to a Smoke Management Advisory Board.
                                                                        
03/25    House intro - 1st rdg - to printing
03/26    Rpt prt - to Agric Aff
03/27    Rpt out - rec d/p - to 2nd rdg
03/28    2nd rdg - to 3rd rdg
03/31    3rd rdg - PASSED - 52-16-2
      AYES -- Andersen, Barraclough, Barrett, Bauer, Bedke, Bell, Black,
      Block, Bolz, Bradford, Cannon, Collins, Cuddy, Deal, Denney, Douglas,
      Eberle, Edmunson, Ellsworth, Field(23), Gagner, Garrett, Harwood,
      Jones, Kellogg, Lake, Langford, Martinez, McGeachin, McKague, Meyer,
      Miller, Moyle, Naccarato, Nielsen, Raybould, Ridinger, Ring, Roberts,
      Rydalch, Schaefer, Shirley, Skippen, Smith(30), Smith(24), Smylie,
      Snodgrass, Stevenson, Tilman, Wills, Wood, Mr. Speaker
      NAYS -- Bieter, Boe, Campbell, Clark, Eskridge, Henbest, Jaquet,
      Kulczyk, Langhorst, Mitchell, Ringo, Robison, Sali, Sayler, Shepherd,
      Trail
      Absent and excused -- Crow, Field(18)
    Floor Sponsor - Jones
    Title apvd - to Senate
04/01    Senate intro - 1st rdg - to Agric Aff
04/04    Rpt out - rec d/p - to 2nd rdg
04/07    2nd rdg - to 3rd rdg
04/10    3rd rdg - PASSED - 25-10-0
      AYES -- Bailey, Brandt, Bunderson, Burtenshaw, Calabretta, Cameron,
      Compton, Darrington, Davis, Gannon, Geddes, Goedde, Hill, Ingram,
      Little, Lodge, McKenzie, McWilliams, Noble, Pearce, Richardson,
      Sorensen, Stegner, Sweet, Williams
      NAYS -- Andreason, Burkett, Kennedy, Keough, Malepeai(Kumm), Marley,
      Noh, Schroeder, Stennett, Werk
      Absent and excused -- None
    Floor Sponsors - Burtenshaw & Williams
    Title apvd - to House
04/14    To enrol
04/15    Rpt enrol - Sp signed
04/16    Pres signed
04/17    To Governor
04/23    Governor signed
         Session Law Chapter 316
         Effective: 04/23/03

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 391
                                                                        
                                BY WAYS AND MEANS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO SMOKE MANAGEMENT  AND  CROP  RESIDUE  DISPOSAL;  AMENDING  SECTION
  3        22-4801,  IDAHO  CODE, TO REVISE LEGISLATIVE FINDINGS AND INTENT; AMENDING
  4        SECTION 22-4803, IDAHO CODE, TO PROVIDE FOR CERTAIN OPEN BURNING  IN  COM-
  5        PLIANCE  WITH  DESIGNATED  PROVISIONS  WHEN  NO  OTHER ECONOMICALLY VIABLE
  6        ALTERNATIVES TO BURNING ARE AVAILABLE, TO PROVIDE  REQUIREMENTS  FOR  CROP
  7        RESIDUE BURNING IN SPECIFIED COUNTIES, TO PROVIDE FOR REGISTRATION OF CER-
  8        TAIN  FIELDS  WITH THE IDAHO DEPARTMENT OF AGRICULTURE, TO REQUIRE CERTAIN
  9        AUTHORIZATION FROM THE DEPARTMENT AND TO PROVIDE THAT REQUIRED INFORMATION
 10        FOR REGISTRATION MUST BE RECEIVED BY THE DEPARTMENT PRIOR TO  FIELD  IGNI-
 11        TION;  AMENDING CHAPTER 48, TITLE 22, IDAHO CODE, BY THE ADDITION OF A NEW
 12        SECTION 22-4803A, IDAHO CODE, TO AUTHORIZE THE DEPARTMENT  OF  AGRICULTURE
 13        TO MAKE CERTAIN DETERMINATIONS AND TAKE CERTAIN ACTIONS RELATING TO VIOLA-
 14        TIONS OF DESIGNATED SMOKE MANAGEMENT AND CROP RESIDUE DISPOSAL PROVISIONS,
 15        TO PROVIDE FOR VIOLATIONS, TO PROVIDE PENALTIES, TO PROVIDE PROCEDURES, TO
 16        PROVIDE FOR MONEYS COLLECTED FOR VIOLATIONS, TO PROVIDE FOR INVESTIGATIONS
 17        AND INSPECTIONS, TO PROVIDE A STATUTE OF LIMITATIONS FOR CERTAIN CIVIL AND
 18        ADMINISTRATIVE  PROCEEDINGS,  TO  PROVIDE  FOR COMPLAINTS, TO PROVIDE THAT
 19        AUTHORIZED CROP RESIDUE BURNING SHALL NOT CONSTITUTE A NUISANCE  OR  TRES-
 20        PASS  AND  TO  PROVIDE THAT DESIGNATED PROVISIONS RELATING TO CROP RESIDUE
 21        BURNING SHALL NOT BE CONSTRUED TO CREATE CERTAIN PRIVATE CAUSES OF ACTION;
 22        AND AMENDING SECTION 22-4804, IDAHO CODE, TO PROVIDE FOR REGISTERED  COUN-
 23        TIES, TO STRIKE REFERENCE TO REGISTRATION OF FIELDS WITH THE DEPARTMENT OF
 24        ENVIRONMENTAL  QUALITY,  TO REVISE PROVISIONS RELATING TO FEES FOR BURNING
 25        OF REGISTERED FIELDS IN DESIGNATED COUNTIES, TO  PROVIDE  FOR  PAYMENT  OF
 26        FEES  TO  THE DEPARTMENT, TO PROVIDE FOR THE REMITTANCE OF THE FEES BY THE
 27        DEPARTMENT TO THE STATE TREASURER, TO STRIKE REFERENCE TO CERTAIN RULEMAK-
 28        ING BY THE BOARD OF HEALTH AND WELFARE RELATING TO FEES FOR CROP  BURNING,
 29        TO PROVIDE FOR USE BY THE DEPARTMENT OF MONEYS FROM THE AGRICULTURAL SMOKE
 30        MANAGEMENT  ACCOUNT,  TO  REVISE  PROVISIONS RELATING TO THE USE OF MONEYS
 31        FROM THE AGRICULTURAL SMOKE MANAGEMENT ACCOUNT FOR RESEARCH AND TO  STRIKE
 32        PROVISIONS RELATING TO A SMOKE MANAGEMENT ADVISORY BOARD; AND DECLARING AN
 33        EMERGENCY.
                                                                        
 34    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 35        SECTION  1.  That  Section 22-4801, Idaho Code, be, and the same is hereby
 36    amended to read as follows:
                                                                        
 37        22-4801.  LEGISLATIVE FINDINGS AND INTENT. The legislature finds that  the
 38    current  knowledge and technology support the practice of burning crop residue
 39    to control disease, weeds, pests, and to enhance crop  rotations.  It  is  the
 40    intent  of  the legislature to promote agricultural activities. Currently some
 41    of those activities include crop residue burning while at the same  time  pro-
 42    tecting  public  health. The legislature finds that due to the climate, soils,
 43    and crop rotations unique to north Idaho counties, crop residue burning  is  a
                                                                        
                                           2
                                                                        
  1    prevalent  agricultural practice and that there is an environmental benefit to
  2    protecting water quality from the growing of certain crops in  environmentally
  3    sensitive areas. It is the intent of the legislature to reduce the loss to the
  4    state of its agricultural resources by providing a safe harbor to farmers when
  5    burning crop residues in compliance with this chapter and limiting the circum-
  6    stances  under  which agricultural operations may be exposed to claims outside
  7    of the lawful framework for crop residue burning. The director  of  the  Idaho
  8    department  of agriculture may promulgate rules relating to crop residue burn-
  9    ing under this chapter. Further, the legislature encourages the Idaho  depart-
 10    ment of agriculture and the Idaho department of environmental quality to coop-
 11    erate  with  local  communities and the agricultural community and in order to
 12    establish voluntary smoke management and crop residue  burning  programs.  The
 13    legislature  encourages  the  Idaho department of agriculture and the agricul-
 14    tural community to pursue alternative means to crop residue disposal.  Nothing
 15    in  this  chapter shall prohibit the Idaho department of environmental quality
 16    from enforcing the environmental protection and health act, chapter  1,  title
 17    39,  Idaho Code, and the rules promulgated pursuant thereto, as they relate to
 18    air quality and protection of the state and national ambient air quality stan-
 19    dards.
                                                                        
 20        SECTION 2.  That Section 22-4803, Idaho Code, be, and the same  is  hereby
 21    amended to read as follows:
                                                                        
 22        22-4803.  AGRICULTURAL FIELD BURNING. (1) The open burning of crop residue
 23    grown  in  agricultural fields shall be an allowable form of open burning when
 24    the provisions of this chapter, and any rules  promulgated  pursuant  thereto,
 25    and  the  environmental  protection  and health act, and any rules promulgated
 26    pursuant thereto, are met, and when no other agricultural economically  viable
 27    alternatives  to burning are available, as determined by the director, for the
 28    purpose of:
 29        (a)  Disposing of crop residues;
 30        (b)  Developing  physiological  conditions  conducive  to  increased  crop
 31        yields; or
 32        (c)  Controlling diseases, insects, pests or weed infestations.
 33        (2)  The following provisions shall apply to all agricultural field  burn-
 34    ing:
 35        (a)  In  order  to  minimize  impacts upon populated areas of the counties
 36        designated in subsection (3) of this section, aAny person conducting  crop
 37        residue  burning  must  make  every  reasonable  effort  to burn only when
 38        weather conditions are conducive to adequate  smoke  dispersion,  and  the
 39        burning  does  not  emit  particulates  or other material which exceed the
 40        state and federal ambient air quality standards; and
 41        (b)  The open burning of crop residue shall  be  conducted  in  the  field
 42        where it was generated.
 43        (3)  In Kootenai, and Benewah, Boundary, Bonner, Shoshone, Latah, Clearwa-
 44    ter, Nez Perce, Lewis and Idaho counties, the legislature finds that there are
 45    a  great  many cereal grain, field grass, forage grass, and turf grass fields,
 46    and it is a practice to burn these fields to control disease, weeds and  pests
 47    in  these  counties.  Therefore, in Kootenai and Benewah the counties specifi-
 48    cally identified in this subsection, no person shall conduct or allow any crop
 49    residue burning without first registering each field with the  DEQ  department
 50    each  year  burning  is  conducted. Approved forms for registering fields when
 51    needed may be obtained at the DEQ's Coeur d'Alene office,  and  without  first
 52    receiving  authorization from the department that the conditions of subsection
 53    (2)(a) of this section are met. This provision is not  met  unless  the  forms
                                                                        
                                           3
                                                                        
  1    contain all required information and are required by the department for regis-
  2    tration is received by the DEQ department prior to field ignition.
  3        (4)  The  use  of  reburn  machines,  propane flamers, or other devices to
  4    ignite or reignite a field for the purpose of crop residue  burning  shall  be
  5    considered an allowable form of open burning when the provisions of this chap-
  6    ter,  and any rules promulgated pursuant thereto, the environmental protection
  7    and health act, and any rules promulgated thereto, are met.
                                                                        
  8        SECTION 3.  That Chapter 48, Title 22, Idaho Code, be,  and  the  same  is
  9    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 10    ignated as Section 22-4803A, Idaho Code, and to read as follows:
                                                                        
 11        22-4803A.  VIOLATIONS -- PENALTIES -- INSPECTION -- COMPLAINTS. (1) If  it
 12    is  determined by the department that any person who engages in or allows crop
 13    residue burning of a field or fields required to  be  registered  pursuant  to
 14    section  22-4803(3),  Idaho  Code, has violated any provision of this chapter,
 15    that person shall be deemed to have committed a first time violation, provided
 16    that the person has not, within the previous three (3) years  been  determined
 17    by  the  department  to  have  committed a violation of the provisions of this
 18    chapter.
 19        (a)  The department shall provide the person determined to have  committed
 20        the  violation with written notice of the violation and an opportunity for
 21        a hearing pursuant to the Idaho administrative procedure act, chapter  52,
 22        title 67, Idaho Code.
 23        (b)  Any  person determined to have committed a first time violation shall
 24        be prohibited from crop residue burning for a period of one (1) year  from
 25        the  date  of  the  violation.  The  prohibition  shall include all fields
 26        located within the state of Idaho that are owned  or  controlled  by   the
 27        violating party, whether or not previously registered.
 28        (2)  Any  person,  after  having been determined to have committed a first
 29    time violation pursuant to the provisions of this section, shall be deemed  to
 30    have  committed  a  subsequent  violation  if  the person is determined by the
 31    department to have committed a subsequent violation within a  three  (3)  year
 32    period of time from the time of the first violation.
 33        (a)  Those  persons  having been determined to have committed a subsequent
 34        violation, shall be assessed a civil penalty by the department or its duly
 35        authorized agent,  in  an  amount  not  to  exceed  ten  thousand  dollars
 36        ($10,000)  for each offense, and shall be liable for reasonable attorney's
 37        fees and costs incurred by the department associated  with  assessment  of
 38        the civil penalty.
 39        (b)  Assessment  of a civil penalty as provided herein may be made in con-
 40        junction with any other department  administrative  action  and  shall  be
 41        based  on  the  severity of the offense and the degree of cooperation with
 42        the department.
 43        (c)  No civil penalty may be imposed unless the person charged  was  given
 44        notice  and opportunity for a hearing pursuant to the Idaho administrative
 45        procedure act, chapter 52, title 67, Idaho Code.
 46        (d)  In the event the department is unable to collect the  civil  penalty,
 47        or  if  any person fails to pay all or a set portion of a civil penalty as
 48        determined by the department, then the department may commence and  prose-
 49        cute  an  action to compel payment of the penalty in the district court in
 50        and for the county in which the violation occurred.
 51        (e)  Any person against whom the department has assessed a  civil  penalty
 52        under this section may, within thirty (30) days of the final action making
 53        the  assessment, appeal the assessment to the district court of the county
                                                                        
                                           4
                                                                        
  1        in which the violation is alleged by the department to have occurred.
  2        (f)  Moneys collected for violations shall be deposited in the state trea-
  3        sury and credited to the state agricultural smoke management account  cre-
  4        ated in section 22-4804, Idaho Code.
  5        (g)  The  imposition  or computation of monetary penalties shall take into
  6        account the seriousness of the violation, good  faith  efforts  to  comply
  7        with  the  law, and other mitigating factors. The director shall prepare a
  8        written report setting forth the basis upon which any monetary penalty  is
  9        imposed  and/or  computed  and  shall  retain  the report on file with the
 10        department.
 11        (3)  The director, or his designee is authorized to enter upon  public  or
 12    private  property  for the purpose of investigating or inspecting for possible
 13    violations. All inspections and investigations conducted under  the  authority
 14    of this chapter shall be performed in conformity with the prohibitions against
 15    unreasonable  searches  and  seizures contained in the fourth amendment to the
 16    constitution of the United States and section 17, article I, of the  constitu-
 17    tion of the state of Idaho.
 18        (4)  No civil or administrative proceeding may be brought to recover for a
 19    violation of any provision of this chapter or any rule promulgated pursuant to
 20    this chapter more than two (2) years after the director had knowledge or ought
 21    reasonably to have had knowledge of the violation.
 22        (5)  The  department  shall investigate all agricultural field burning and
 23    crop residue disposal complaints lodged against persons conducting burning  in
 24    Kootenai,  Benewah,  Boundary, Bonner, Shoshone, Latah, Clearwater, Nez Perce,
 25    Lewis and Idaho counties. Provided however, that should multiple complaints be
 26    lodged relating to agricultural field burning or crop residue disposal regard-
 27    ing the same location, date and  time,  then  the  department  shall  only  be
 28    required to complete one (1) investigation. A complaint must include the name,
 29    address  and  telephone number of the complainant. Complaints pursuant to this
 30    section are a public record open to public inspection and copying pursuant  to
 31    chapter 3, title 9, Idaho Code.
 32        (6)  Crop  residue  burning  conducted in accordance with section 22-4803,
 33    Idaho Code, shall not constitute a private or public nuisance or constitute  a
 34    trespass. Nothing in this chapter shall be construed to create a private cause
 35    of  action against any person who engages in or allows crop residue burning of
 36    a field or fields required to be registered pursuant  to  section  22-4803(3),
 37    Idaho  Code, provided such activities are conducted in accordance with chapter
 38    48, title 22, Idaho Code, and rules promulgated thereunder.
                                                                        
 39        SECTION 4.  That Section 22-4804, Idaho Code, be, and the same  is  hereby
 40    amended to read as follows:
                                                                        
 41        22-4804.  KOOTENAI AND BENEWAH REGISTERED COUNTIES -- AGRICULTURAL BURNING
 42    FEES -- ACCOUNT -- RULES -- RESEARCH -- MANAGEMENT PROGRAM. (1) Any person who
 43    registers  a field with the DEQ for agricultural burning in Kootenai, or Bene-
 44    wah, Boundary, Bonner, Shoshone, Latah, Clearwater, Nez Perce, Lewis or  Idaho
 45    counties  shall pay to the DEQ department a fee of one dollar ($1.00) per acre
 46    of cropland to be burned. The DEQ department shall remit all fees  monthly  to
 47    the  state  treasurer,  who shall deposit the moneys in the state agricultural
 48    smoke management account which is hereby created. The board of health and wel-
 49    fare may, upon the recommendation of the DEQ, adopt rules pertaining to:
 50        (a)  Collection, handling, and refund of fees  established  in  subsection
 51        (1) of this section; and
 52        (b)  Disbursement  of funds from the account as provided in subsection (2)
 53        of this section.
                                                                        
                                           5
                                                                        
  1        (2)  The DEQ department may use moneys from the agricultural smoke manage-
  2    ment account as appropriated annually by the legislature for:
  3        (a)  Research to:
  4             (i)   Develop alternative crops which do not require burning;
  5             (ii)  Improve burning and cultural  practices  for  crops  which  may
  6             require burning; and
  7             (iii) Explore alternatives to burning; and
  8             (iv)  If appropriate, study and evaluate any public health impacts of
  9             burning; and
 10        (b)  Supplementation  of appropriated general account moneys for implemen-
 11        tation of agricultural smoke management  programs  referenced  in  section
 12        22-4801, Idaho Code.
 13        (3)  A smoke management advisory board is established in the DEQ to advise
 14    the DEQ administrator or his designee in the administration and enforcement of
 15    the  provisions of this section by overseeing the funds provided and to review
 16    and recommend research programs. The board shall consist of six  (6)  members:
 17    three (3) from the agricultural community and three (3) nonagriculturists from
 18    the  general public, appointed by the governor and to serve at the pleasure of
 19    the governor. The seventh member shall be ex officio and shall be the adminis-
 20    trator of the DEQ or his designee.
 21        (4)  The board shall, on the first day of each July or as soon  thereafter
 22    as  practicable,  elect a chairman and a vice chairman from among its members,
 23    and these officers shall hold office until their successors  are  elected.  As
 24    soon  as  the  board  has elected it officers, the secretary shall certify the
 25    results of the election to the administrator of the DEQ.  The  chairman  shall
 26    preside  at all meetings of the board and the secretary shall make a record of
 27    the proceedings which shall be preserved in the offices of  the  DEQ.  If  the
 28    chairman  is  absent  from  any meeting of the board, his duties shall be dis-
 29    charged by the vice chairman. All members of the board present  at  a  meeting
 30    shall  be  entitled  to  vote on any question, matter, or thing which properly
 31    comes before it.
                                                                        
 32        SECTION 5.  An emergency existing  therefor,  which  emergency  is  hereby
 33    declared to exist, this act shall be in full force and effect on and after its
 34    passage and approval.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE
                             RS 13227
This legislation will amend the Smoke Management and Crop Residue
Disposal Act of 1999 by expanding the program from Kootenai and
Benewah counties to all ten (10)of the north Idaho counties.  It
will clarify the legislative intent.  It will provide penalties
for violation of the Act and transfer the operation and
enforcement from the Department of Environmental Quality to the
Department of Agriculture.

There is created a safe harbor provision for growers who obey the
law and all the rules written pursuant to the Act.

There also is a clarification as to what the Department of
Agriculture must due in operating the program and an addition to
the purposes for which the money generated can be used.

This legislation will become effective upon approval of the
Governor.

                          FISCAL IMPACT

There will be no impact on the general fund.  All fees generated
will be dedicated to the Smoke Management Fund and administered
by the Department of Agriculture.

Based on historical information, the Department of Agriculture
estimates that approximately $70,000 per year will be generated.









Contact
Name: Rep. Doug Jones 
Phone: (208) 332-1000





STATEMENT OF PURPOSE/FISCAL NOTE                    H 391