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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
|||| 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
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