No. 38673 (Amendment): Rule R307-202. Emission Standards:General Burning

(Amendment)

DAR File No.: 38673
Filed: 07/07/2014 08:38:03 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Native American tribes conduct ceremonial burning that involves heating stones in a fire and transferring the hot rocks to a sweat lodge. This ceremonial ritual cannot be conducted under the current rule during restricted burning days. Native American tribe members have requested an exemption from the burning rule restriction to conduct this religious ceremony when conducted by a "Native American spiritual advisor", as newly defined in Rule R307-202.

Summary of the rule or change:

A definition for "Native American spiritual advisor" is added to the rule, and an exemption for ceremonial burning when conducted by a Native American spiritual advisor is added to the rule.

State statutory or constitutional authorization for this rule:

• Section 65A-8-211
• Section 19-2-104
• Subsection 11-7-1(2)(a)
• Section 76-10-803

Anticipated cost or savings to:

the state budget:

Because there are no new requirements to the State of Utah in the proposed rule, there are no anticipated costs or savings to the state budget.

local governments:

Because there are no new requirements for local government, there are no anticipated costs or savings.

small businesses:

Because there are no new requirements for small businesses, there are no anticipated costs or savings.

persons other than small businesses, businesses, or local governmental entities:

Because there are no new requirements for persons other than small businesses, businesses, or local government entities, there are no anticipated costs or savings.

Compliance costs for affected persons:

The proposed rule would allow ceremonial burning when conducted by a Native American spiritual advisor to be exempt from the requirements of Subsection R307-202-4(2). Therefore, there are no anticipated compliance costs for affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

The proposed exemption to this rule does not apply to businesses; therefore, there should be no fiscal impact on businesses.

Amanda Smith, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Environmental Quality
Air QualityRoom Fourth Floor
195 N 1950 W
SALT LAKE CITY, UT 84116-3085

Direct questions regarding this rule to:

• Mark Berger at the above address, by phone at 801-536-4000, by FAX at 801-536-0085, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

09/02/2014

This rule may become effective on:

10/02/2014

Authorized by:

Bryce Bird, Director

RULE TEXT

R307. Environmental Quality, Air Quality.

R307-202. Emission Standards: General Burning.

R307-202-1. Applicability.

R307-202-4 through R307-202-8 applies to general burning within incorporated community under the authority of county or municipal fire authority.

 

R307-202-2. Definitions.

The following additional definitions apply only to R307-202.

[(1) ]"Attainment areas" means any area that meets the national primary and secondary ambient air quality standard (NAAQS) for the pollutant.

[(2) ]"County or municipal fire authority" means the public official so designated with the responsibility, authority, and training to protect people, property, and the environment from fire, within their respective area of jurisdiction.

[(3) ]"Federal Class I Area" means an area that consists of national parks exceeding 6,000 acres, wilderness areas and national memorial parks exceeding 5,000 acres, and all international parks that were in existence on August 7, 1977. See Clean Air Act section 162(a).

[(4) ]"Fire hazard" means a hazardous condition involving combustible, flammable, or explosive material that represents a substantial threat to life or property if not immediately abated, as declared by the county or municipal fire authority.

"Native American spiritual advisor" means a person who leads, instructs, or facilitates a Native American religious ceremony or service; or provides religious counseling; is an enrolled member of a federally recognized Native American tribe; and is recognized as a spiritual advisor by a federally recognized Native American tribe. "Native American spiritual advisor" includes a sweat lodge leader, medicine person, traditional religious practitioner, or holy man or woman.

 

R307-202-3. Exclusions.

As provided in Section 19-2-114, the provisions of R307-202 are not applicable to:

(1) Except for areas zoned as residential, burning incident to horticultural or agricultural operations of:

(a) Prunings from trees, bushes, and plants; and

(b) Dead or diseased trees, bushes, and plants, including stubble.

(2) Burning of weed growth along ditch banks for clearing these ditches for irrigation purposes;

(3) Controlled heating of orchards or other crops during the frost season to lessen the chances of their being frozen so long as the emissions from this heating do not cause or contribute to an exceedance of any national ambient air quality standards and is consistent with the federally approved State Implementation Plan; and

(4) The controlled burning of not more than two structures per year by an organized and operating fire department for the purpose of training fire service personnel when the National Weather Service clearing index is above 500. See also Section 11-7-1(2)(a).

(5) Ceremonial burning is excluded from R307-202-4(2) when conducted by a Native American spiritual advisor.

 

R307-202-4. Prohibitions.

(1) No open burning shall be done at sites used for disposal of community trash, garbage and other wastes.

(2) No person shall burn under this rule when the director issues a public announcement under R307-302. The director will distribute such announcement to the local media notifying the public that a mandatory no-burn period is in effect for the area where the burning is to occur.

 

R307-202-5. General Requirements.

(1) Except as otherwise provided in this rule, no person shall set or use an open outdoor fire for the purpose of disposal or burning of petroleum wastes; demolition or construction debris; residential rubbish; garbage or vegetation; tires; tar; trees; wood waste; other combustible or flammable solid, liquid or gaseous waste; or for metal salvage or burning of motor vehicle bodies.

(2) The county or municipal fire authority shall approve burning based on the predicted meteorological conditions and whether the emissions would impact the health and welfare of the public or cause or contribute to an exceedance of any national ambient air quality standard.

(3) Nothing in this regulation shall be construed as relieving any person conducting open burning from meeting the requirements of any applicable federal, state or local requirements concerning disposal of any combustible materials.

(4) The county or municipal fire authority that approves any open burning permit will retain a copy of each permit issued for one year.

 

R307-202-6. Open Burning - Without Permit.

The following types of open burning do not require a permit when not prohibited by other local, state or federal laws and regulations, when it does not create a nuisance, as defined in Section 76-10-803, and does not impact the health and welfare of the public.

(1) Devices for the primary purpose of preparing food such as outdoor grills and fireplaces;

(2) Campfires and fires used solely for recreational purposes where such fires are under control of a responsible person and the combustible material is clean, dry wood or charcoal; and

(3) Indoor fireplaces and residential solid fuel burning devices except as provided in R307-302-2.

 

R307-202-7. Open Burning - With Permit.

(1) No person shall knowingly conduct open burning unless the open burning activities may be conducted without a permit pursuant to R307-202-6 or the person has a valid permit for burning on a specified date or period, issued by the county or municipal fire authority having jurisdiction in the area where the open burning will take place.

(2) A permit applicant shall provide information as requested by the county or municipal fire authority. No permit or authorization shall be deemed valid unless the issuing authority determines that the applicant has provided the required information.

(3) Persons seeking an open burning permit shall submit to the county or municipal fire authority an application on a form provided by the director for each separate burn.

(4) A permit shall be valid only on the lands specified on the permit.

(5) No material shall be burned unless it is clearly described and quantified as material to be burned on a valid permit.

(6) No burning shall be conducted contrary to the conditions specified on the permit.

(7) Any permit issued by a county or municipal fire authority shall be subject to the local, state, and federal rules and regulations.

(8) Open burning is authorized by the issuance of a permit, as stipulated within this rule, for specification in R307-202-7(10). These permits can only be issued when not prohibited by other local, state, or federal laws and regulations and when a nuisance as defined in Section 76-10-803 is not created and does not impact the health and welfare of the public.

(9) Individual permits, as stipulated within this rule, for the types of burning listed in R307-202-7(10) may be issued by a county or municipal fire authority when the clearing index is 500 or greater. When the clearing index is below 500, all permits issued for that day will be null and void until further notice from the county or municipal fire authority. Additionally, anyone burning on the day when the clearing index is below 500 or is found to be violating any part of this rule shall be liable for a fine in accordance with R307-130.

(10) Types of open burning for which a permit may be granted are:

(a) Except in nonattainment and maintenance areas, open burning of tree cuttings and slash in forest areas where the cuttings accrue from pulping, lumbering, and similar operations, but excluding waste from sawmill operations such as sawdust and scrap lumber.

(b) Open burning of trees and brush within railroad rights-of-way provided that dirt is removed from stumps before burning, and that tires, oil more dense than #2 fuel oil, tar, or other materials which can cause severe air pollution are not present in the materials to be burned, and are not used to start fires or to keep fires burning.

(c) Open burning of a fire hazard that a county or municipal fire authority determines cannot be abated by any other viable option.

(d) Open burning of highly explosive materials when a county or municipal fire authority, law enforcement agency or governmental agency having jurisdiction determines that onsite burning or detonation in place is the only reasonably available method for safely disposing of the material.

(e) Open burning for the disposal of contraband in the possession of public law enforcement personnel provided they demonstrate to the county or municipal fire authority that open burning is the only reasonably available method for safely disposing of the material.

(f) Open burning of clippings, bushes, plants and prunings from trees incident to property clean-up activities, including residential cleanup, provided that the following conditions have been met:

(i) Within only the counties of Washington, Kane, San Juan, Iron, Garfield, Beaver, Piute, Wayne, Grand and Emery, the county or municipal fire authority may issue a permit between March 1 and May 30 when the clearing index is 500 or greater. The county or municipal fire authority may issue a permit between September 15 to November 15 for such burning to occur when the state forester has approved the burning window under Section 65A-8-211 and the clearing index is 500 or greater.

(ii) In all other areas of the state, the county or municipal fire authority may issue a permit between March 30 and May 30 for such burning to occur when the clearing index is 500 or greater. The county or municipal fire authority may issue a permit between September 15 and October 30 for such burning to occur when the state forester has approved the burning window under Section 65A-8-211 and the clearing index is 500 or greater.

(iii) Such burnings occur in accordance with state and federal requirements;

(iv) Materials to be burned are thoroughly dry; and

(v) No trash, rubbish, tires, or oil are included in the material to be burned, used to start fires, or used to keep fires burning.

(g) Except for nonattainment and maintenance areas, the director may grant a permit for types of open burning not specified in R307-202-7(3) on written application if the director finds that the burning is consistent with the federally approved State Implementation Plan and does not cause or contribute to an exceedance of any national ambient air quality standards.

(i) This permit may be granted once the director has reviewed the written application with the requirements and criteria found within this rule at R307-202-7.

(ii) Open Burning Permit Criteria.

(A) The director or the county or municipal fire authority shall consider the following factors in determining whether, and upon what conditions, to issue an open burning permit:

(I) The location and proximity of the proposed burning to any building, other structures, the public, and federal Class I areas that might be impacted by the smoke and emissions from the burn;

(II) Burning will only be conducted when the clearing index is 500 or above; and

(III) Whether there is any practical alternative method for the disposal of the material to be burned.

(B) Methods to minimize emissions and smoke impacts may include, but are not limited to:

(I) The use of clean auxiliary fuel;

(II) Drying the material prior to ignition; and

(III) Separation for alternative disposal of materials that produce higher levels of emissions and smoke during the combustion process.

(C) Open burning permits are not valid during periods when the clearing index is below 500 or publicly announced air pollution emergencies or alerts have been declared in the area of the proposed burn.

(D) For burns of piled material, all piles shall be reasonably dry and free of dirt.

(E) Open burns shall be supervised by a responsible person who shall notify the local fire department and have available, either on-site or by the local fire department, the means to suppress the burn if the fire does not comply with the terms and conditions of the permit.

(F) All open burning operations shall be subject to inspection by the director or county or municipal fire authority. The permittee shall maintain at the burn site the original or a copy of the permit that shall be made available without unreasonable delay to the inspector.

(G) If at any time the director or the county or municipal fire authority granting the permit determines that the permittee has not complied with any term or condition of the permit, the permit is subject to partial or complete suspension, revocation or imposition of additional conditions. All burning activity subject to the permit shall be terminated immediately upon notice of suspension or revocation. In addition to suspension or revocation of the permit, the director or county or municipal fire authority may take any other enforcement action authorized under state or local law.

 

R307-202-8. Special Conditions.

(1) Open burning for special purposes or under unusual or emergency circumstances may be approved by the director if it is consistent with the federally approved State Implementation Plan and does not cause or contribute to an exceedance of any national ambient air quality standards.

(a) This permit may be granted once the director has reviewed the written application with the requirements and criteria in R307-202-7.

 

KEY: air pollution, open burning, fire authority

Date of Enactment or Last Substantive Amendment: [July 31, 2012]2014

Notice of Continuation: March 4, 2010

Authorizing, and Implemented or Interpreted Law: 19-2-104; 11-7-1(2)(a); 65A-8-211; 76-10-803

 

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