Print Friendly 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
]]]] 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-
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
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-
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
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
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
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
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
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.
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.
Name: Sherman Takatori
Agency: Agriculture, Dept. of
Phone: (208) 332-8609
STATEMENT OF PURPOSE/FISCAL NOTE H 35