2005 Legislation
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HOUSE BILL NO. 35 – Smoke mngmnt/crop residue disposal

HOUSE BILL NO. 35

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H0035...............................................by AGRICULTURAL AFFAIRS
SMOKE MANAGEMENT AND CROP RESIDUE DISPOSAL - Amends existing law relating
to smoke management and crop residue disposal to revise legislative
findings; to remove language referencing specified counties; to provide
that the Department of Agriculture shall investigate complaints lodged
against persons conducting burning in the state of Idaho; and to require
persons registering a field for agricultural burning in the state of Idaho
to pay a specified fee.
                                                                        
01/25    House intro - 1st rdg - to printing
01/26    Rpt prt - to Agric Aff

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 35
                                                                        
                             BY AGRICULTURAL AFFAIRS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO SMOKE MANAGEMENT  AND  CROP  RESIDUE  DISPOSAL;  AMENDING  SECTION
  3        22-4801,  IDAHO  CODE,  TO  REVISE  LEGISLATIVE FINDINGS; AMENDING SECTION
  4        22-4803, IDAHO CODE, TO REMOVE LANGUAGE  REFERENCING  SPECIFIED  COUNTIES;
  5        AMENDING  SECTION  22-4803A,  IDAHO  CODE,  TO PROVIDE THAT THE DEPARTMENT
  6        SHALL INVESTIGATE COMPLAINTS LODGED AGAINST PERSONS CONDUCTING BURNING  IN
  7        THE  STATE  OF  IDAHO; AND AMENDING SECTION 22-4804, IDAHO CODE, TO REVISE
  8        DESCRIPTIVE LANGUAGE AND TO REQUIRE PERSONS REGISTERING A FIELD FOR  AGRI-
  9        CULTURAL BURNING IN THE STATE OF IDAHO TO PAY A SPECIFIED FEE.
                                                                        
 10    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 11        SECTION  1.  That  Section 22-4801, Idaho Code, be, and the same is hereby
 12    amended to read as follows:
                                                                        
 13        22-4801.  LEGISLATIVE FINDINGS AND INTENT. The legislature finds that  the
 14    current  knowledge and technology support the practice of burning crop residue
 15    to control disease, weeds, pests, and to enhance crop  rotations.  It  is  the
 16    intent of the legislature to promote agricultural activities while at the same
 17    time  protecting public health. The legislature finds that due to the climate,
 18    soils, and crop rotations, unique to north Idaho counties, crop residue  burn-
 19    ing  is  a  prevalent agricultural practice and that there is an environmental
 20    benefit to protecting water quality from  the  growing  of  certain  crops  in
 21    environmentally sensitive areas. It is the intent of the legislature to reduce
 22    the loss to the state of its agricultural resources by providing a safe harbor
 23    to farmers when burning crop residues in compliance with this chapter and lim-
 24    iting  the circumstances under which agricultural operations may be exposed to
 25    claims outside of the lawful framework for crop residue burning. The  director
 26    of  the  Idaho department of agriculture may promulgate rules relating to crop
 27    residue burning under this chapter. Further, the  legislature  encourages  the
 28    Idaho  department  of  agriculture  and  the Idaho department of environmental
 29    quality to cooperate with local communities and the agricultural community  in
 30    order  to  establish  smoke  management and crop residue burning programs. The
 31    legislature encourages the Idaho department of agriculture  and  the  agricul-
 32    tural  community to pursue alternative means to crop residue disposal. Nothing
 33    in this chapter shall prohibit the Idaho department of  environmental  quality
 34    from  enforcing  the environmental protection and health act, chapter 1, title
 35    39, Idaho Code, and the rules promulgated pursuant thereto, as they relate  to
 36    air quality and protection of the state and national ambient air quality stan-
 37    dards.
                                                                        
 38        SECTION  2.  That  Section 22-4803, Idaho Code, be, and the same is hereby
 39    amended to read as follows:
                                                                        
 40        22-4803.  AGRICULTURAL FIELD BURNING. (1) The open burning of crop residue
 41    grown in agricultural fields shall be an allowable form of open  burning  when
                                                                        
                                           2
                                                                        
  1    the  provisions  of  this chapter, and any rules promulgated pursuant thereto,
  2    and the environmental protection and health act,  and  any  rules  promulgated
  3    pursuant  thereto, are met, and when no other economically viable alternatives
  4    to burning are available, as determined by the director, for the purpose of:
  5        (a)  Disposing of crop residues;
  6        (b)  Developing  physiological  conditions  conducive  to  increased  crop
  7        yields; or
  8        (c)  Controlling diseases, insects, pests or weed infestations.
  9        (2)  The following provisions shall apply to all agricultural field  burn-
 10    ing:
 11        (a)  In  order  to  minimize impacts upon populated areas, of the counties
 12        designated in subsection (3) of this section, any person  conducting  crop
 13        residue  burning  must  make  every  reasonable  effort  to burn only when
 14        weather conditions are conducive to adequate  smoke  dispersion,  and  the
 15        burning  does  not  emit  particulates  or other material which exceed the
 16        state and federal ambient air quality standards; and
 17        (b)  The open burning of crop residue shall  be  conducted  in  the  field
 18        where it was generated.
 19        (3)  In  Kootenai, Benewah, Boundary, Bonner, Shoshone, Latah, Clearwater,
 20    Nez Perce, Lewis and Idaho counties, tThe legislature finds that there  are  a
 21    great many cereal grain, field grass, forage grass, and turf grass fields, and
 22    it  is a practice to burn these fields to control disease, weeds and pests. in
 23    these counties. Therefore, in the counties  specifically  identified  in  this
 24    subsection, nNo person shall conduct or allow any crop residue burning without
 25    first  registering  each  field  with the department each year burning is con-
 26    ducted, and without first receiving authorization from the department that the
 27    conditions of subsection (2)(a) of this section are met. This provision is not
 28    met unless all information required by  the  department  for  registration  is
 29    received by the department prior to field ignition.
 30        (4)  The  use  of  reburn  machines,  propane flamers, or other devices to
 31    ignite or reignite a field for the purpose of crop residue  burning  shall  be
 32    considered an allowable form of open burning when the provisions of this chap-
 33    ter,  and any rules promulgated pursuant thereto, the environmental protection
 34    and health act, and any rules promulgated thereto, are met.
 35        (5)  Any rules promulgated by the DEQ relating to opacity standards  shall
 36    not apply to crop residue burning.
                                                                        
 37        SECTION  3.  That Section 22-4803A, Idaho Code, be, and the same is hereby
 38    amended to read as follows:
                                                                        
 39        22-4803A.  VIOLATIONS -- PENALTIES -- INSPECTION -- COMPLAINTS. (1) If  it
 40    is  determined by the department that any person who engages in or allows crop
 41    residue burning of a field or fields required to  be  registered  pursuant  to
 42    section  22-4803(3),  Idaho  Code, has violated any provision of this chapter,
 43    that person shall be deemed to have committed a first time violation, provided
 44    that the person has not, within the previous three (3) years  been  determined
 45    by  the  department  to  have  committed a violation of the provisions of this
 46    chapter.
 47        (a)  The department shall provide the person determined to have  committed
 48        the  violation with written notice of the violation and an opportunity for
 49        a hearing pursuant to the Idaho administrative procedure act, chapter  52,
 50        title 67, Idaho Code.
 51        (b)  Any  person determined to have committed a first time violation shall
 52        be prohibited from crop residue burning for a period of one (1) year  from
 53        the  date  of  the  violation.  The  prohibition  shall include all fields
                                                                        
                                           3
                                                                        
  1        located within the state of Idaho that are owned  or  controlled  by   the
  2        violating party, whether or not previously registered.
  3        (2)  Any  person,  after  having been determined to have committed a first
  4    time violation pursuant to the provisions of this section, shall be deemed  to
  5    have  committed  a  subsequent  violation  if  the person is determined by the
  6    department to have committed a subsequent violation within a  three  (3)  year
  7    period of time from the time of the first violation.
  8        (a)  Those  persons  having been determined to have committed a subsequent
  9        violation, shall be assessed a civil penalty by the department or its duly
 10        authorized agent,  in  an  amount  not  to  exceed  ten  thousand  dollars
 11        ($10,000)  for each offense, and shall be liable for reasonable attorney's
 12        fees and costs incurred by the department associated  with  assessment  of
 13        the civil penalty.
 14        (b)  Assessment  of a civil penalty as provided herein may be made in con-
 15        junction with any other department  administrative  action  and  shall  be
 16        based  on  the  severity of the offense and the degree of cooperation with
 17        the department.
 18        (c)  No civil penalty may be imposed unless the person charged  was  given
 19        notice  and opportunity for a hearing pursuant to the Idaho administrative
 20        procedure act, chapter 52, title 67, Idaho Code.
 21        (d)  In the event the department is unable to collect the  civil  penalty,
 22        or  if  any person fails to pay all or a set portion of a civil penalty as
 23        determined by the department, then the department may commence and  prose-
 24        cute  an  action to compel payment of the penalty in the district court in
 25        and for the county in which the violation occurred.
 26        (e)  Any person against whom the department has assessed a  civil  penalty
 27        under this section may, within thirty (30) days of the final action making
 28        the  assessment, appeal the assessment to the district court of the county
 29        in which the violation is alleged by the department to have occurred.
 30        (f)  Moneys collected for violations shall be deposited in the state trea-
 31        sury and credited to the state agricultural smoke management account  cre-
 32        ated in section 22-4804, Idaho Code.
 33        (g)  The  imposition  or computation of monetary penalties shall take into
 34        account the seriousness of the violation, good  faith  efforts  to  comply
 35        with  the  law, and other mitigating factors. The director shall prepare a
 36        written report setting forth the basis upon which any monetary penalty  is
 37        imposed  and/or  computed  and  shall  retain  the report on file with the
 38        department.
 39        (3)  The director, or his designee is authorized to enter upon  public  or
 40    private  property  for the purpose of investigating or inspecting for possible
 41    violations. All inspections and investigations conducted under  the  authority
 42    of this chapter shall be performed in conformity with the prohibitions against
 43    unreasonable  searches  and  seizures contained in the fourth amendment to the
 44    constitution of the United States and section 17, article I, of the  constitu-
 45    tion of the state of Idaho.
 46        (4)  No civil or administrative proceeding may be brought to recover for a
 47    violation of any provision of this chapter or any rule promulgated pursuant to
 48    this chapter more than two (2) years after the director had knowledge or ought
 49    reasonably to have had knowledge of the violation.
 50        (5)  The  department  shall investigate all agricultural field burning and
 51    crop residue disposal complaints lodged against persons conducting burning  in
 52    Kootenai,  Benewah,  Boundary, Bonner, Shoshone, Latah, Clearwater, Nez Perce,
 53    Lewis and the state of Idaho. counties. Provided however, that should multiple
 54    complaints be lodged relating to agricultural field burning  or  crop  residue
 55    disposal regarding the same location, date and time, then the department shall
                                                                        
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  1    only  be  required to complete one (1) investigation. A complaint must include
  2    the name, address and telephone number of the complainant. Complaints pursuant
  3    to this section are a public record open to public inspection and copying pur-
  4    suant to chapter 3, title 9, Idaho Code.
  5        (6)  Crop residue burning conducted in accordance  with  section  22-4803,
  6    Idaho  Code, shall not constitute a private or public nuisance or constitute a
  7    trespass. Nothing in this chapter shall be construed to create a private cause
  8    of action against any person who engages in or allows crop residue burning  of
  9    a  field  or  fields required to be registered pursuant to section 22-4803(3),
 10    Idaho Code, provided such activities are conducted in accordance with  chapter
 11    48, title 22, Idaho Code, and rules promulgated thereunder.
                                                                        
 12        SECTION  4.  That  Section 22-4804, Idaho Code, be, and the same is hereby
 13    amended to read as follows:
                                                                        
 14        22-4804.  REGISTERED COUNTIES -- AGRICULTURAL BURNING FEES --  ACCOUNT  --
 15    RULES  -- RESEARCH -- MANAGEMENT PROGRAM. (1) Any person who registers a field
 16    for agricultural burning in Kootenai, Benewah, Boundary, Bonner, Shoshone, La-
 17    tah, Clearwater, Nez Perce, Lewis or the state of Idaho counties shall pay  to
 18    the department a fee of two dollars ($2.00) per acre of cropland to be burned.
 19    The  department shall remit all fees monthly to the state treasurer, who shall
 20    deposit the moneys in the state agricultural smoke management account which is
 21    hereby created.
 22        (2)  The department may use moneys from the agricultural smoke  management
 23    account as appropriated annually by the legislature for:
 24        (a)  Research to:
 25             (i)   Develop alternative crops which do not require burning;
 26             (ii)  Improve  burning  and  cultural  practices  for crops which may
 27             require burning;
 28             (iii) Explore alternatives to burning; and
 29             (iv)  If appropriate, study and evaluate any public health impacts of
 30             burning; and
 31        (b)  Supplementation of appropriated general account moneys for  implemen-
 32        tation  of  agricultural  smoke  management programs referenced in section
 33        22-4801, Idaho Code.

Statement of Purpose / Fiscal Impact


                      STATEMENT OF PURPOSE
                            RS 14498

Amend Title 22, Chapter 48, Idaho Code, relating to smoke
management and crop residue disposal so that the provisions of
the Code equally apply to all counties in Idaho.


                         FISCAL IMPACT

This program is expected to cost an additional $322,762 per year.
The Department estimates that an additional $160,000 will be
collected in registration fees from industry with a net impact on
the general fund of $162,762.



Contact
Name:   Sherman Takatori
Agency: Agriculture, Dept. of
Phone:  (208) 332-8609

STATEMENT OF PURPOSE/FISCAL NOTE                       H 35