75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1000
House Bill 2183
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Department of Environmental Quality)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Allows Environmental Quality Commission to adopt rules listing
additional counties to be covered by statutes relating to field
burning. Modifies acreage that may be burned. Allows commission
by order to permit emergency burning under certain conditions.
Modifies fees for burning. Allows Department of Environmental
Quality to evaluate burning programs.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to field burning; creating new provisions; amending ORS
468A.560, 468A.575, 468A.580, 468A.585, 468A.595, 468A.610 and
468A.615; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 468A.560 is amended to read:
468A.560. (1) Except for the fee imposed under ORS 468A.615
(1)(c), the provisions of ORS 468A.550 to 468A.620 and 468A.992
shall apply only to open field burning, propane flaming and stack
or pile burning of grass seed or cereal grain crop residues on
acreage located in { - the counties specified in ORS 468A.595
(2) - } { + Multnomah, Washington, Clackamas, Marion, Polk,
Yamhill, Linn, Benton and Lane Counties + }.
{ - (2) Nothing in this section shall apply to the propane
flaming of mint stubble. - }
{ + (2) As necessary to implement the federal Clean Air Act,
P.L. 88-206, as in effect on the effective date of this 2009
Act, the Environmental Quality Commission by rule may list
counties, in addition to those listed in subsection (1) of this
section, to which the provisions of ORS 468A.550 to 468A.620 and
468A.992 apply as specified in subsection (1) of this section.
The acreage restrictions in ORS 468A.610 (2), (3) and (5) do not
apply to counties listed in any rule adopted by the commission,
except that the commission by rule may establish acreage
limitations as necessary to implement the federal Clean Air Act,
P.L. 88-206, as in effect on the effective date of this 2009
Act. + }
SECTION 2. ORS 468A.575 is amended to read:
468A.575. (1) Permits for open burning, propane flaming or
stack or pile burning of the residue from perennial grass seed
crops, annual grass seed crops and cereal grain crops are
required in the counties listed in ORS { - 468A.595 (2) - }
{ + 468A.560 (1) and in the counties listed in any rule adopted
by the Environmental Quality Commission pursuant to ORS 468A.560
(2). + } { - and - } { + Permits + } shall be issued in
accordance with rules adopted by the Environmental Quality
Commission and subject to the fee prescribed in ORS 468A.615. The
permit described in this section shall be issued in conjunction
with permits required under ORS 476.380 or 478.960.
(2) By rule the Environmental Quality Commission may delegate
to any county court, board of county commissioners, fire chief of
a rural fire protection district or other responsible person the
duty to deliver permits to burn acreage if the acreage has been
registered under ORS 468A.615 and fees have been paid as required
in ORS 468A.615.
SECTION 3. ORS 468A.580 is amended to read:
468A.580. (1) Permits under ORS 468A.575 for open field burning
of cereal grain crops shall be issued in the counties listed in
ORS { - 468A.595 (2) - } { + 468A.560 (1) and in the counties
listed in any rule adopted by the Environmental Quality
Commission pursuant to ORS 468A.560 (2) + }only if the person
seeking the permit submits to the issuing authority a signed
statement under oath or affirmation that the acreage to be burned
will be planted to seed crops other than cereal grains which
require flame sanitation for proper cultivation.
(2) The Department of Environmental Quality shall inspect
cereal grain crop acreage burned under subsection (1) of this
section after planting in the following spring to determine
compliance with subsection (1) of this section.
(3) Any person planting contrary to the restrictions of
subsection (1) of this section shall be assessed by the
department a civil penalty of $25 for each acre planted contrary
to the restrictions. Any fines collected by the department under
this subsection shall be deposited by the State Treasurer in the
Department of Agriculture Service Fund to be used in carrying out
the smoke management program in cooperation with the Oregon Seed
Council and for administration of this section.
(4) Any person planting seed crops after burning cereal grain
crops under subsection (1) of this section may apply to the
department for permission to plant contrary to the restrictions
of subsection (1) of this section if the seed crop fails to grow.
The department may allow planting contrary to the restrictions of
subsection (1) of this section if the crop failure occurred by
reasons other than the negligence or intentional act of the
person planting the crop or one under the control of the person
planting the crop.
SECTION 4. ORS 468A.585 is amended to read:
468A.585. (1) The Environmental Quality Commission shall enter
into a memorandum of understanding with the State Department of
Agriculture that provides for the State Department of Agriculture
to operate all of the field burning program.
(2) Subject to the terms of the memorandum of understanding
required by subsection (1) of this section, the State Department
of Agriculture:
(a) May perform any function of the Environmental Quality
Commission or the Department of Environmental Quality relating to
the operation and enforcement of the field burning smoke
management program { + , except for making findings pursuant to
ORS 468A.610 (9) and (10) + }.
(b) May enter onto and inspect, at any reasonable time, the
premises { + and fields + } of any person { + registered under
ORS 468A.615 for + } { - conducting - } an open field
burn { + , propane flaming or stack or pile burning + } to
ascertain compliance with a statute, rule, standard or permit
condition relating to the field burning smoke management program.
(c) May conduct a program for the research and development of
alternatives to field burning.
SECTION 5. ORS 468A.595 is amended to read:
468A.595. In order to regulate open field burning pursuant to
ORS 468A.610:
(1) In such areas of the state and for such periods of time as
it considers necessary to carry out the policy of ORS 468A.010,
the Environmental Quality Commission by rule may prohibit,
restrict or limit classes, types and extent and amount of burning
for perennial grass seed crops, annual grass seed crops and grain
crops.
{ - (2) In addition to but not in lieu of the provisions of
ORS 468A.610 and of any other rule adopted under subsection (1)
of this section, the commission shall adopt rules for Multnomah,
Washington, Clackamas, Marion, Polk, Yamhill, Linn, Benton and
Lane Counties, which provide for a more rapid phased reduction by
certain permit areas, depending on particular local air quality
conditions and soil characteristics, the extent, type or amount
of open field burning of perennial grass seed crops, annual grass
seed crops and grain crops and the availability of alternative
methods of field sanitation and straw utilization and
disposal. - }
{ - (3) - } { + (2) + } Before promulgating rules pursuant
to { - subsections (1) and (2) - } { + subsection (1) + } of
this section, the commission shall consult with Oregon State
University and may consult with the United States Natural
Resources Conservation Service, or its successor agency, the
Agricultural Stabilization Commission, the state Soil and Water
Conservation Commission and other interested agencies. The
Department of Environmental Quality shall advise the commission
in the promulgation of such rules. The commission must review and
show on the record the recommendations of the department in
promulgating such rules.
{ - (4) - } { + (3) + } No regional air quality control
authority shall have authority to regulate burning of perennial
grass seed crops, annual grass seed crops and grain crops.
{ - (5) - } { + (4) + } Any amendments to the State
Implementation Plan prepared by the state pursuant to the federal
Clean Air Act, { - as enacted by Congress, December 31, 1970,
and as amended by Congress August 7, 1977, and November 15, 1990,
and Acts amendatory thereto - } { + P.L. 88-206, as in effect
on the effective date of this 2009 Act, + } shall be only of such
sufficiency as to gain approval of the amendment by the United
States Environmental Protection Agency
{ - and shall not include rules promulgated by the commission
pursuant to subsection (1) of this section not necessary for
attainment of national ambient air quality standards - } .
SECTION 6. ORS 468A.610 is amended to read:
468A.610. (1) Except as provided under ORS 468A.620, no person
shall open burn or cause to be open burned, propane flamed or
stack or pile burned in the counties { - specified - }
{ + listed + } in ORS
{ - 468A.595 (2) - } { + 468A.560 (1) and in the counties
listed in any rule adopted by the Environmental Quality
Commission pursuant to ORS 468A.560 (2) + }, perennial or annual
grass seed crop or cereal grain crop residue, unless the acreage
has been registered under ORS 468A.615 and the permits required
by ORS 468A.575, 476.380 and 478.960 have been obtained.
(2) The maximum total registered acreage allowed to be open
burned { + or stack or pile burned + } per year pursuant to
subsection (1) of this section { + in the counties listed in ORS
468A.560 (1) + } shall be:
{ - (a) For 1991, 180,000 acres. - }
{ - (b) For 1992 and 1993, 140,000 acres. - }
{ - (c) For 1994 and 1995, 120,000 acres. - }
{ - (d) For 1996 and 1997, 100,000 acres. - }
{ - (e) For 1998 and thereafter, 40,000 acres. - }
{ + (a) For 2010, 20,000 acres.
(b) For 2011 and thereafter, none. + }
(3) The maximum total acreage allowed to be propane flamed
{ + per year + } under subsection (1) of this section { + in
the counties listed in ORS 468A.560 (1) + } shall be:
{ - (a) In 1991 through 1997, 75,000 acres per year; and - }
{ - (b) In 1998 and thereafter, 37,500 acres per year may be
propane flamed. - }
{ + (a) For 2010, 18,750 acres.
(b) For 2011 and thereafter, none. + }
{ - (4)(a) - } { + (4) + } { - After January 1, 1998, - }
Fields shall be prepared for propane flaming by removing all
loose straw or vacuuming or prepared using other techniques
approved by rule by the Environmental Quality Commission { + ,
and + } { - . - }
{ - (b) After January 1, 1998, - } propane equipment shall
satisfy best available technology.
{ - (5) Notwithstanding the limitations set forth in
subsection (2) of this section, in 1991 and thereafter, a maximum
of 25,000 acres of steep terrain and species identified by the
Director of Agriculture by rule may be open burned and shall not
be included in the maximum total permitted acreage. - }
{ + (5) Notwithstanding the limitations set forth in
subsection (2) of this section, steep terrain and species
identified by the Director of Agriculture by rule shall not be
included in the maximum total of permitted acreage set forth in
subsection (2) of this section. The additional acreage allowed to
be open burned shall be:
(a) For 2010, 12,500 acres.
(b) For 2011 and thereafter, none. + }
(6) Acreage registered to be open burned under this section may
be propane flamed at the registrant's discretion without
reregistering the acreage.
(7) In the event of the registration of more than the maximum
allowable acres for open burning { + or stack or pile
burning + } in the counties { - specified - } { + listed + }
in ORS { - 468A.595 (2), after 1996 - } { + 468A.560 (1) or in
the counties listed in any rule adopted by the Environmental
Quality Commission pursuant to ORS 468A.560 (2) + }, the
commission, after consultation with the State Department of
Agriculture, by rule or order may assign priority of permits
based on soil characteristics, the crop type, terrain or
drainage. { + In no event may permits be issued for more than
the maximum acreage listed in subsections (2), (3) and (5) of
this section or in any rule adopted by the Environmental Quality
Commission pursuant to ORS 468A.560 (2). + }
(8) Permits shall be issued and { + open + } burning { + , + }
{ + propane flaming and stack or pile burning + }shall be
allowed for the maximum acreage specified in { - subsection
(2) - } { + subsections (2), (3) and (5) of this section and in
any rule adopted by the Environmental Quality Commission pursuant
to ORS 468A.560 (2) + } of this section unless { - : - }
{ - (a) - } the daily determination of suitability of
meteorological conditions, regional or local air quality
conditions or other burning conditions requires that a maximum
number of acres not be burned on a given day { + . + } { - ;
or - }
{ - (b) The commission finds after hearing that other
reasonable and economically feasible, environmentally acceptable
alternatives to the practice of annual open field burning have
been developed. - }
(9) Upon a finding of extreme danger to public health or
safety, the { + Environmental Quality Commission + }
{ - commission - } may order temporary emergency cessation of
all open field burning, propane flaming or stack or pile burning
in any area of the counties listed in ORS { - 468A.595 (2) - }
{ + 468A.560 (1) or in the counties listed in any rule adopted
by the Environmental Quality Commission pursuant to ORS 468A.560
(2) + }.
{ + (10) Notwithstanding subsection (7) of this section, the
Environmental Quality Commission may by order permit emergency
open burning, propane flaming or stack or pile burning of more
acreage than allowed by subsections (2), (3) and (5) of this
section or in any rule adopted by the Environmental Quality
Commission pursuant to ORS 468A.560 (2) if the commission finds:
(a) Extreme hardship due to disease outbreak, insect
infestation or irreparable damage to land outweighs the dangers
to public health and safety from emergency open burning, propane
flaming or stack or pile burning;
(b) Authorization of additional acreage does not result in open
burning, propane flaming or stack or pile burning of more acreage
than required to address the emergency;
(c) Authorization of additional acreage is limited to the
calendar year in which the commission makes the required
findings; and
(d) All emergency open burning, propane flaming or stack or
pile burning is otherwise consistent with ORS 468A.550 to
468A.620.
(11) The commission by rule may assess fees for the acreage
burned pursuant to subsection (10) of this section. + }
{ - (10) - } { + (12) + } The commission shall act on any
application for a permit under ORS 468A.575 within 60 days of
registration and receipt of the fee required under ORS 468A.615.
{ - The commission may order emergency cessation of open field
burning at any time. Any other decision required under this
section must be made by the commission on or before June 1 of
each year. - }
SECTION 7. ORS 468A.615 is amended to read:
468A.615. (1)(a) On or before April 1 of each year, the grower
of a grass seed crop shall register with the county court or
board of county commissioners, the fire chief of a rural fire
protection district, the designated representative of the fire
chief or other responsible persons the number of acres to be open
burned or propane flamed in the remainder of the year. At the
time of registration, the Department of Environmental Quality
shall collect a nonrefundable fee of { - $2 - } { + $4 + }
per acre registered to be sanitized by open burning or
{ - $1 - } { + $2 + } per acre to be sanitized by propane
flaming. The department may contract with counties and rural fire
protection districts or other responsible persons for the
collection of the fees which shall be forwarded to the
department. Any person registering after April 1 { - of - }
{ + in + } each year shall pay an additional fee of { - $1 - }
{ + $2 + } per acre registered if the late registration is due
to the fault of the late registrant or
{ - one - } { + a person + } under the control of the late
registrant. Late registrations must be approved by the
department. Copies of the registration form shall be forwarded to
the department. The required registration must be made and the
fee paid before a permit shall be issued under ORS 468A.575.
(b) Except as provided in paragraph (d) of this subsection, the
department shall collect a fee in accordance with paragraph (c)
of this subsection for issuing a permit for open burning, propane
flaming or stack or pile burning of perennial or annual grass
seed crop or cereal grain crop residue under ORS 468A.555 to
468A.620 and 468A.992. The department may contract with counties
and rural fire protection districts or other responsible persons
for the collection of the fees which shall be forwarded to the
department.
(c) The fee required under paragraph (b) of this subsection
shall be paid within 10 days after { - a permit is issued and
shall be - } { + the date of the invoice issued by the issuing
agency and shall be + }:
(A) { - $8 - } { + $16 + } per acre of crop sanitized by
open burning in the counties { - specified - } { + listed + }
in ORS { - 468A.595 (2) - } { + 468A.560 (1) and in the
counties listed in any rule adopted by the Environmental Quality
Commission pursuant to ORS 468A.560 (2) + };
(B) $4 per acre of perennial or annual grass seed crop
sanitized by open burning in any county not { - specified - }
{ + listed + } in ORS { - 468A.595 (2) - } { + 468A.560 (1)
or in any county not listed in any rule adopted by the
Environmental Quality Commission pursuant to ORS 468A.560
(2) + };
(C) { - $2 - } { + $4 + } per acre of crop sanitized by
propane flaming;
(D) { + $10 per acre + } for acreage from which 100 percent of
the straw is removed and burned in stacks or piles { + ; and + }
{ - : - }
{ - (i) $2 per acre from January 1, 1992, to December 31,
1997; - }
{ - (ii) $4 per acre in 1998; - }
{ - (iii) $6 per acre in 1999; - }
{ - (iv) $8 per acre in 2000; and - }
{ - (v) $10 per acre in 2001 and thereafter; and - }
(E) For acreage from which less than 100 percent of the straw
is removed and burned in stacks or piles, the same per acre as
the fee imposed under subparagraph (D) of this paragraph, but
with a reduction in the amount of acreage for which the fee is
charged by the same percentage as the reduction in the amount of
straw to be burned.
(d) The fee required by paragraph (b) of this subsection shall
not be charged for any acreage where efficient burning of stubble
is accomplished with equipment certified by the department for
field sanitizing purposes or with any other certified alternative
method to open field burning, propane flaming or stack or pile
burning. The fee required by paragraph (b) of this subsection
shall not be charged for any acreage not harvested prior to
burning or for any acreage not burned.
(2) { + (a) + } All fees collected under this section shall be
deposited in the State Treasury to the credit of the Department
of Agriculture Service Fund. Such moneys are continuously
appropriated to the State Department of Agriculture for the
purpose of carrying out the duties and responsibilities carried
out by the State Department of Agriculture pursuant to the
memorandum of understanding established under ORS 468A.585.
{ + (b) The State Department of Agriculture by rule may
increase the fees required under this section as needed to carry
out its duties and responsibilities pursuant to the memorandum of
understanding established under ORS 468A.585, provided that the
fees do not exceed the costs of the State Department of
Agriculture in operating all of the field burning program. + }
(3) It is the intention of the Legislative Assembly that the
programs for smoke management, air quality monitoring and the
enforcement of rules under ORS 468A.550 to 468A.620 and 468A.992
be operated in a manner that maximizes the resources available
for the research and development program. Therefore, with regard
to the disbursement of funds collected under subsection (1) of
this section, the State Department of Agriculture shall act in
accordance with the intent of the Legislative Assembly and shall:
(a) Pay an amount to the county or board of county
commissioners or the fire chief of the rural fire protection
district or other responsible person, for each fire protection
district, $1 per acre registered for each of the first 5,000
acres registered for open field burning and propane flaming in
the district, 75 cents per acre registered for each of the second
5,000 acres registered in the district and 35 cents per acre
registered for all acreage registered in the district in excess
of 10,000 acres, to cover the cost of and to be used solely for
the purpose of administering the program of registration of
acreage to be burned, issuance of permits, keeping of records and
other matters directly related to agricultural field burning. For
each acre from which straw is removed and burned in stacks or
piles, the State Department of Agriculture shall pay to the
county or board of county commissioners, or the fire chief of the
rural fire protection district or other responsible person, 25
cents per acre.
(b) Designate an amount to be used for the smoke management
program. The State Department of Agriculture by contract with the
Oregon Seed Council or otherwise shall organize rural fire
protection districts and growers, coordinate and provide
communications, hire ground support personnel, provide aircraft
surveillance and provide such added support services as are
necessary.
(c) Retain funds for the operation and maintenance of the
Willamette Valley field burning air quality impact monitoring
network and to insure adequate enforcement of rules established
by the Environmental Quality Commission governing standards of
practice for open field burning, propane flaming and stack or
pile burning.
(d) Of the remaining funds, designate an amount to be used for
additional funding for research and development proposals
described in the plan developed pursuant to section 15, chapter
920, Oregon Laws 1991.
SECTION 8. { + Section 9 of this 2009 Act is added to and made
a part of ORS chapter 468A. + }
SECTION 9. { + (1)(a) The Department of Environmental Quality
may evaluate the effectiveness of open burning programs specified
in subsection (3) of this section that are operated by state
agencies, regional authorities and political subdivisions of this
state, as well as open burning programs operated by the federal
government, tribal governments and other state governments and
political subdivisions, in reducing the frequency and magnitude
of air quality impacts from open burning.
(b) In conducting an evaluation under this section, the
department shall consider at least the following factors:
(A) The extent to which the open burning programs are
coordinated;
(B) Whether multiple programs address the same type of open
burning;
(C) Whether any types of open burning are not addressed by any
programs;
(D) The extent to which the open burning programs minimize air
quality impacts;
(E) The effectiveness of the open burning programs in
increasing the use of alternatives to open burning; and
(F) The effectiveness of the open burning programs in notifying
the public about air quality impacts and responding to public
concerns about open burning.
(2) Based on an evaluation conducted under subsection (1) of
this section, the department may:
(a) Recommend changes to the open burning programs to decrease
the air quality impacts of open burning;
(b) Facilitate actions to improve coordination of the open
burning programs; and
(c) Otherwise assist in the implementation of the open burning
programs.
(3) An evaluation performed by the department under this
section shall be of open burning regulated under ORS 468A.550 to
468A.620, residential open burning of vegetative debris regulated
under ORS 468A.085, burning regulated under ORS 477.013, burning
of forestland, burning of rangeland and other burning as
determined by the department. + }
SECTION 10. { + Except as provided in section 11 of this 2009
Act, sections 8 and 9 of this 2009 Act and the amendments to ORS
468A.560, 468A.575, 468A.580, 468A.585, 468A.595, 468A.610 and
468A.615 by sections 1 to 7 of this 2009 Act become operative on
January 1, 2010. + }
SECTION 11. { + The Environmental Quality Commission may adopt
rules before the operative date specified in section 10 of this
2009 Act or take any action before that date that is necessary to
carry out sections 8 and 9 of this 2009 Act and the amendments to
ORS 468A.560, 468A.575, 468A.580, 468A.585, 468A.595, 468A.610
and 468A.615 by sections 1 to 7 of this 2009 Act. + }
SECTION 12. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect on
its passage. + }
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