BOARD MEETING DATE: November 7, 2008
AGENDA NO. 35

PROPOSAL:

Amend Rules 444 – Open Burning and
208 – Permit and Burn Authorization for Open Burning

SYNOPSIS:

Rule 444 is designed to ensure that open burning is conducted in a manner that minimizes emissions and visible smoke. Rule 208 is the companion rule that requires persons wishing to conduct open burning to obtain written permits prior to the activity.  The proposed amendments are intended to strengthen the information base for burning activities, strengthen rule provisions to be more health protective, improve clarity and enforceability of the rule, and provide AQMD with the ability to recover its implementation costs.

COMMITTEE:

Stationary Source, September 19, 2008

RECOMMENDED ACTIONS:

Adopt the attached resolution:

1. Certifying the Notice of Exemption for Amended Rules 444 – Open Burning and 208 – Permit and Burn Authorization for Open Burning; and
2. Amend Rules 444 – Open Burning and 208 – Permit and Burn Authorization for Open Burning.
    

Barry R. Wallerstein, D.Env.
Executive Officer

Background

Rule 444 – Open Burning, was adopted October 8, 1976, along with Rule 208 – Permit and Burn Authorization for Open Burning, to reduce visible emissions and minimize public nuisance from smoke emissions. These rules were written for the Los Angeles County Air Pollution Control District but incorporated elements of all the four counties rules (Los Angeles, Orange, Riverside and San Bernardino Counties) in effect at the time. Rule 444 has been amended on three previous occasions. An October 1981 amendment added a provision allowing for training fires of 30 minutes or less in duration when they would otherwise be precluded due to adverse meteorological conditions. The rule was amended again in October 1987 to incorporate the newly adopted vegetative management burning requirements of the California Code of Regulations, Title 17 – Smoke Management Guidelines for Agricultural and Prescribed Burning. Finally, a December 2001 amendment incorporated modifications to Title 17, corrected deficiencies identified by U.S. EPA in a 2000 federal register notice of limited disapproval, and incorporated provisions of the revised 1997 and 1999 control measure WST-03 that set limitations to open burning when the California one-hour ozone standard is predicted to be exceeded.

Rule 208 – Permit and Burn Authorization for Open Burns has been amended twice, in 1990 and 2001. The last amendment added a provision requiring written permits for open burning by local fire protection agencies or the Executive Officer. It also specified that the burn authorization from the Executive Officer would be required for each day of burning.

Proposal

The proposed amendments to Rules 208 and 444 will strengthen the rule provisions to be more health protective, improve clarity and enforceability of the rules, and strengthen the information base on burning activities. The key elements of the staff proposal are summarized as follows:
 

Proposed Amended Rule 208 – Permit and Burn Authorization for Open Burns

PAR 208 adds language to specify that open burning shall not be conducted in a manner inconsistent with the conditions of the written permit issued by the fire agency or AQMD.
 

Proposed Amended Rule 444 – Open Burning

The proposal contains several new definitions and modified definitions in addition to restructuring and clarifying the rule language. The proposed amended rule also utilizes the Air Quality Index (AQI) for forecasting “marginal”, “permissive”, and “no burn” days in the Basin. The AQI incorporates the five major air pollutants regulated by the Federal Clean Air Act; ground-level ozone, PM, carbon monoxide, sulfur dioxide, and nitrogen dioxide and their latest revisions promulgated by the U.S. EPA.

In addition, the proposal includes several new requirements for agricultural burning and fire prevention/suppression training. There is a proposed prohibition on agricultural burns within 1,000 feet of sensitive receptor locations. There is also a proposed cumulative time limit for training burns conducted by both private and public fire prevention agencies.

The proposed amendment also adds reporting requirements for agricultural and prescribed burns. For agricultural burning, Burn Management Plans are being proposed for agricultural burns greater than 10 acres. For prescribed burning, Smoke Management Plans are being proposed for fire prevention/suppression training consuming greater than 10 acres. Lastly, Annual Post Burn Evaluation Reports are being proposed for persons and agencies conducting burns that consume greater than 10 acres.

The proposed amendment will also provide agricultural operations with an exemption to conducting open burning an as an emergency measure to protect crops from freezing subject to certain conditions. Further, the flexibility to conduct fire suppression training currently afforded to fire protection agencies is proposed to be extended to non-fire protection agencies conducting similar training.

In order to partially recover the cost associated with running the open burn program, the proposal allows fees to be assessed for the filing and evaluation of the aforementioned plans and reports, upon amendment of Rule 306.

Key Issues

During the rule making process, staff resolved numerous issues presented by key stakeholders, including training requirements by private and public fire agencies, special effects by the Studios, and minimizing permit fees and delays. However, some additional key concerns are summarized below, along with staff’s responses.

Issue: The Land Managers feel that the reduced number of burn days will lead to less prescribed burns and training burns. They feel the amendment will therefore lead to more fuel for wildfires and a less prepared fire fighting force which will result in more emissions from uncontained wildfires.

Response: The intent of the amendment is not to reduce the amount of prescribed burning, including piles, conducted by land managers, but to direct the open burning to days with better air quality and better dispersion. To reflect that intent, staff adjusted the allowable Maximum Daily Burn Acreage to accommodate more open burning on Permissive Burn Days.

Further, there are several other options available to the land managers that provide them with additional flexibility in conducting prescribed burns to prevent a larger wildfire. Rule 444 allows the Executive Officer to authorize prescribed burning on marginal burn days, provided the land manager is operating under a Smoke Management Plan that has been approved by the Executive Officer. In addition, the rule allows for prescribed burns to exceed the maximum daily burn acreage if the burn is required to reduce a fire hazard that jeopardizes public health or safety and the land manager is operating under a Smoke Management Plan that has been approved by the Executive Officer. Lastly, the Hearing Board can provide a temporary exemption from the requirements of Rule 444 if the land managers can demonstrate that a burn is necessary during no burn days.

Issue: The land managers expressed concern that the fees will lead to less prescribed burning and less training; therefore, more dangerous wild fires will occur which is a danger to public safety.

Response: The fees included in this staff report are for illustration purpose, and the actual fees will be determined during the amendment process for Rule 306 – Plan Fees. The Public Hearing to consider the proposed amendments to Rule 306 is expected to be held in May or June 2009. The affected parties will have the opportunity to work with staff during the Rule 306 amendment process, all comments and concerns will be carefully considered.

Staff has removed the rule language that requires fees when obtaining written permits. The fees that remain are for Smoke Management Plans, Burn Management Plans, Annual Post Burn Evaluation Reports and Emergency Burn Plans. These fees are proposed to recover the cost for filing and evaluating these plans and reports. For the land managers, the fees incurred will be for the Smoke Management Plan and the Annual Post Burn Evaluation Reports. Staff’s preliminary calculations estimate that these fees will be a maximum of $673.80 annually (for initial Smoke Management Plan review and the Annual Post Burn Evaluation Report). In subsequent years, if the plans are for the same project, staff estimates that the fees will be a maximum of $228.60 annually. For example, if a Smoke Management Plan was not completed during the year it was approved, the Smoke Management Plan for the same burn project could be renewed until the project was complete. Although the fees are not finalized at this time, staff reviewed and revised the estimated fees that were in the Preliminary Draft Staff Report for PAR 444.

The South Coast AQMD receives approximately 28 Smoke Management Plans per year and expects to receive 28 Annual Post Burn Evaluation Reports. The total annual revenue from the fees for all land managers is estimated to be between $6,400 - $18,886, assuming the fees currently listed in Rule 306 are used. These fees will not fully cover the cost of running the open burn program, which includes numerous inspections, travel time, staffing the burn line, and issuing and reviewing permits. The proposed fees aim to recover some of the costs associated with plan reviews. While these fees may not recover the entire cost of the open burn program, they do strive toward a more equitable revenue structure among all stakeholders as required by state law.

The proposed fees are very reasonable and compare very favorably to the fees levied by the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) and other APCD’s. For instance, the fees at the SJVUAPCD are $5.40 per blackened acre for broadcast burning and $3.24 per treated acre for pile burning.

Issue: A citrus grower has submitted a comment letter arguing that the proposed rules unduly restrict routine, occasional agricultural burning for which there is no ready, cost-effective alternative; burden small farmers with more processing red tape and new permitting fees; and pit local residents against farmers in their neighborhoods with the vague, but sweeping new “Sensitive Receptor Locations” rule.

Response: The intent of the amendment is not to unduly restrict/reduce the amount of agricultural burning conducted by farmers, but to direct the open burning to days with better air quality, better dispersion, and to locations that are not within 1,000 feet of a sensitive receptor. Although it is not required by the rule, implementation of alternative techniques to open burning such as chipping and grinding would be highly desirable.

After consideration of the impact of issuing permits and potentially inspecting each burn project, staff has concluded that with current staffing resources, it will be very challenging to issue permits for every open burn conducted within the AQMD. As a result, staff has eliminated the proposed requirement that permits are obtained from both the AQMD and the applicable fire protection agency and has deleted the permit fees discussed in the Preliminary Staff Report.

The AQMD believes all residents have a right to live and work in an environment of clean air and is committed to undertaking all necessary steps to protect public health from air pollution, with sensitivity to the impacts of its actions on the community and businesses. The intent of PAR 444 is not to place undue burden on local farmers but to protect the health of all our residents, especially the most sensitive residents.
 

Emission Inventory and Emission Reduction

The proposed changes to the forecasting will lead to fewer emissions on days with poor air quality. However, it is difficult to specifically quantify the amount of reduction on any given poor air quality day or over the course of the year. Thus, staff does not plan to claim any emission reductions in the State Implementation Plan (SIP) as a result of the proposal. Nonetheless, the proposal will provide for better air quality in some communities and assist with meeting the objectives of the AQMP.
 

CEQA

A Notice of Exemption (NOE) has been prepared for the project based on the determination that the amendment will either be a benefit to the environment or not change the current impacts from the open burning program and, thus, is exempt.  Staff has determined that it can be seen with certainty that there is no possibility that this project may have a significant effect on the environment, so the project is exempt under CEQA Guidelines §15060(c)(1) and 15061(b)(3).
 

Socioeconomic Analysis

Projected annual costs of the proposed amendments are $18,530 to $44,471. Employment impacts of the proposed amendments to Rule 444 are not analyzed because the rule does not have a significant impact on air quality or impose emission limitations. The proposed amendments contain several provisions that will improve air quality, facilitate better management practices, and incur minor costs for the affected facilities. Overall, the staff analysis did not identify significant cost impacts resulting from the proposed amendments.
 

AQMP and Legal Mandates

The California Health and Safety Code require the AQMD to adopt an Air Quality Management Plan (AQMP) to meet state and federal ambient air quality standards within the South Coast Air Basin. In addition, California Health and Safety Code require the AQMD to adopt rules and regulations that carry out the objectives of the AQMP.
 

Authority to Assess Fees

California Health and Safety Code Section 40522 provides authority for the AQMD to adopt a fee schedule for the approval of plans to cover the costs of review, planning, inspection, and monitoring related to activities conducted pursuant to the plans. An annual fee may also be charged to cover the costs of annual review, inspection, and monitoring related thereto.

California Health and Safety Code Section 40510 (b) establishes the AQMD’s authority to collect annual fees for the issuance of variances and permits to cover the reasonable cost of permitting, planning, enforcement, and monitoring related thereto.
 

Implementation Plan and Resource Impact

The Open Burning Program began in 1976. Since the adoption of the Rule, the AQMD has allocated approximately one full time equivalent person to run the program. Currently, the AQMD does not recover any of the costs of running this program. The Proposed Amended Rule 444 does include fees for plan and report evaluations in order to recover some of the costs associated with the Open Burn Program. At the current funding level, AQMD’s resources are sufficient to implement the Proposed Amended Rules 208 and 444.

Staff will continue to work with land managers and agricultural growers to find alternatives to open burning including chipping and grinding, biofuels, and encouraging mandatory trash pick up to discourage residential burning of trash and tumbleweeds.
 

Attachments (ZIP, 380k)

1. Summary of Proposed Amendments
2. Rule Development Process Flow Chart
3. Key Contacts
4. Resolution
5. Rule Language
6. Final Staff Report
7. Socioeconomic Assessment
8. CEQA – Notice of Exemption