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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 theclimate, 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 counties12 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. in23 these counties. Therefore, in the counties specifically identified in this24 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 andthe 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 4 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 orthe state of Idaho countiesshall 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 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