5 CCR 1001-11
DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT Colorado Air Quality Control Commission REGULATION NO. 9 OPEN BURNING, PRESCRIBED FIRE, AND PERMITTING 5 CCR 1001-11 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] I. Scope This regulation applies to all open burning activity throughout the state.
II. Definitions The following definitions apply for the purposes of this Regulation No. 9.
A. Agricultural Open Burning The open burning of cover vegetation for the purpose of preparing the soil for crop production, weed control, maintenance of water conveyance structures related to agricultural operations, and other agricultural cultivation purposes.
B. Air Curtain Destructor (ACD)
C. Authorized Local Agency A local air pollution control authority to which the Division has delegated authority to issue general open burning permits and/or prescribed fire permits.
D. Broadcast Burn A broadcast burn is the controlled application of fire to wildland fuels in their natural or modified state over a predetermined area. Broadcast burns do not include the burning of wildland fuels that have been concentrated in piles by manual or mechanical methods.
E. Class I Area and Mandatory Federal Class I Area A class I area is an area listed in Regulation No. 3, Part B, section V.A.
F. Clean Lumber Wood or wood products that have been cut or shaped and include wet, air-dried, and kiln-dried wood products. Clean lumber does not include wood products that have been painted, pigment- stained, or pressure-treated by compounds such chromium copper arsenate, pentachlorophenol, and creosote.
G. Fuel Treatment Manipulation, including combustion, or removal of wildland fuels to reduce the likelihood of ignition and/or to lessen potential damage and resistance to control of wildfire.
H. Land Manager Any federal, state, local or private person or entity that administers, directs, oversees or controls the use of public or private land, including the application of fire to the land.
I. Monitoring Monitoring includes all methods to observe and record smoke from prescribed fire, including tracking of smoke through visual observation.
J. Open Burning Burning of rubbish, wastepaper, wood, vegetative material or any other flammable material on any open premises, or on any public street, alley, or other land adjacent to such premises.
K. Pile Burning Burning of vegetative material that has been concentrated by manual or mechanical methods.
L. Planning Document A document that summarizes the use of prescribed fire as a grassland or forest management tool and the associated discharge or release of air pollution.
M. Prescribed Fire Fire that is intentionally used for grassland or forest management, including vegetative, habitat or fuel management, regardless of whether the fire is ignited by natural or human means. Prescribed fire does not include open burning in the course of agricultural operations and does not include open burning for the purpose of maintaining water conveyance structures.
N. Planned Ignition Fire A prescribed fire ignited by a specific man-made action intended for the purpose of using the fire for grassland or forest management.
O. Prescribed Fire Plan, Wildland Fire Use Plan or Burn Plan A plan that establishes parameters or conditions for conducting a prescribed fire.
P. Significant User of Prescribed Fire A federal, state or local agency or significant management unit thereof or person that, within any given calendar year:
Q. Smoke Management Use of techniques to reduce smoke emissions, dilute smoke, identification and reduction of the impact of smoke on smoke-sensitive areas, monitoring and evaluation of smoke impacts from individual and collective burns and coordination among land managers for these purposes.
R. Smoke Sensitive Areas or Receptors Class I areas and other locations of scenic and/or important vistas, especially during periods of significant public use, urban and rural population centers, schools, hospitals, nursing homes, transportation facilities such as roads and airports, recreational areas, and other locations that may be sensitive to smoke impacts for health, safety, and/or aesthetic reasons.
S. Suppression Action or Activities Any activity in which the land manager or responsible fire agency personnel take appropriate fire management actions intended to actively confine, contain or control a fire. Suppression action may include the use of natural fire barriers such as cliffs, rocks, or rivers as part of a suppression strategy.
T. Unplanned Ignition Fire A prescribed fire ignited by natural phenomena or by military munitions. Unplanned ignition fires include wildland fires used for resource benefits and wildland fires ignited by military munitions.
U. Wildfire Any fire that is not intended for use for grassland or forest management, regardless of whether the fire is ignited by natural or human means.
V. Wildlands An area where development is generally limited to roads, railroads, power lines and widely scattered structures. The land is not cultivated (i.e., the soil is disturbed less frequently than once in ten years), is not fallow, and is not in the United States Department of Agriculture Conservation Reserve Program. The land may be neglected altogether or managed for such purposes as wood or forage production, wildlife, recreation, wetlands or protective plant cover.
W. Wildland Fuels Combustible vegetative materials located on wildlands that can be consumed by fire, including naturally occurring live and dead vegetation, such as grass, leaves, ground litter, plants, shrubs, and trees, as well as excessive buildups of these materials resulting from resource management and other land use activities, as well as from natural plant growth and succession.
X. Wood Waste Untreated wood and untreated wood products, including tree stumps (chipped only), trees, tree limbs (whole or chipped), bark, sawdust, chips, scraps, slabs, millings, and shavings.
Y. Yard Waste Conifer needles, bushes, shrubs, and clippings from bushes and shrubs, are resulting from maintenance of yards or other private or public lands.
III. Open Burning Permit Requirements A. No person shall conduct any open burning activity not exempted from this regulation without first obtaining an open burning permit from the division or from an authorized local agency. No person shall burn or allow the burning of rubbish, wastepaper, wood, vegetative material, or any other flammable material on any open premises, or on any public street, alley, or other land adjacent to such premises without first obtaining an open burning permit from the division or authorized local agency.
B. The following activities are exempt from the requirement to obtain an open burning permit:
C. 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 waste materials.
IV. General Open Burning Permit A. General Open Burning Permit Applications
B. General Open Burning Permit Criteria
C. General Open Burning Permit Conditions General open burning permits will include, but not be limited to, the following conditions, as appropriate:
V. Planned Ignition Fire Permits A. No person shall initiate a planned ignition fire without first obtaining a prescribed fire permit from the division or authorized local agency unless the potential for smoke impacts are low pursuant to the factors in Appendix A to this regulation. Persons seeking authority to conduct prescribed fires with a low potential for smoke impacts pursuant to Appendix A shall apply for a general open burning permit. Significant users of prescribed fire shall apply for and may obtain a planned ignition fire permit if they also satisfy the requirements of section VII of this regulation.
B. Any person seeking authority to conduct a prescribed fire for which the emissions and smoke levels have the potential to exceed the de minimus threshold of a low smoke impact pursuant to Appendix A to this regulation shall apply for and may obtain a planned ignition fire permit on the conditions set forth in this section V.
C. Persons seeking a planned ignition fire permit shall submit to the division or authorized local agency an application on a form approved by the division for each separate burn. The application must demonstrate that the planned ignition fire can and will be conducted in a manner that minimizes the emissions from the burn and the impacts of the smoke on visibility and on the health and welfare of the public.
D. The division or authorized local agency shall consider the following factors in determining whether, and upon what conditions, to issue a planned ignition fire permit:
E. Planned Ignition Fire Permit Conditions Planned ignition fire permits shall include, but not be limited to, the following conditions, as appropriate:
F. Public Comment
VI. Unplanned Ignition Fire Permits A. Any person may apply for an unplanned ignition fire permit. A permit allows the use of fire for grassland or forestland management although the applicant did not plan the specific time and location of the ignition. Wildfires do not require a permit if the land manager undertakes appropriate suppression activities. Significant users of prescribed fire may apply for and obtain an unplanned ignition fire permit if they also satisfy the requirements of section VII of this regulation.
B. Applications for unplanned ignition fire permits shall be submitted to the division on forms approved by the division for each area for which a permit is sought. The application submitted by any person shall include a plan and map depicting the area proposed for the permit. The division may grant unplanned ignition prescribed fire permits for a period of up to five years provided that the information contained in the application remains valid. The division may amend the permit, based on a case-by-case analysis, to accommodate minor changes in the permit area.
C. The division shall consider the following factors in determining whether to grant an unplanned ignition fire permit:
D. Unplanned Ignition Fire Permit Conditions Each unplanned ignition fire permit shall contain, but not be limited to, the following conditions, as appropriate:
E. Public Comment
VII. Additional Requirements For Significant Users Of Prescribed Fire A. Applicability This section VII applies to activities throughout the state of all significant users of prescribed fire, as defined in section II.N of this regulation, not specifically exempted by this regulation. The commission may exempt from the requirements of this section VII any significant user of prescribed fire upon finding that specific activities of the user will have an insignificant impact on visibility and air quality.
B. Planning Documents.
C. Compliance With the State Standard All prescribed fire activities of significant users of prescribed fire in grassland and forest land management, including activities directly conducted by or on behalf of such users on their lands, shall conform to the state standard to minimize emissions using all available, practicable methods that are technologically feasible and economically reasonable in order to minimize the impact or reduce the potential for such impact on both the attainment and maintenance of national ambient air quality standards and achievement of federal and state visibility goals.
D. Planning Document Review Process
E. Open Burning Permits for Significant Users of Prescribed Fire
A. Fees for General Open Burning Permitees The division shall charge no fees under this regulation to general open burning permit applicants or permit holders.
B. Planning Document Evaluation Fees for Significant Users of Prescribed Fire
C. Prescribed Fire Fees
APPENDIX A DE MINIMUS PRESCRIBED FIRE PROJECTS Some proposed planned ignition prescribed fire projects for grassland and forest management may emit relatively low amounts of smoke and emissions and be below the de minimus threshold of a low potential for smoke impacts. If so, such projects may apply for a general open burning permit. Alternatively, if a project is above the de minimus threshold, then such projects must apply for and may obtain a planned ignition fire permit. To determine whether a proposed planned ignition prescribed fire is above or below the threshold for low potential smoke impacts, the division shall consider the following factors:
DeMinimus Threshold for Open Burning Permits Type of Project Thresholds Broadcast Burn < 10 acres of grass OR . < 5 acres of other vegetation Pile Burn All piles out cold before sunset . AND . No more than 50 piles total in the project The final factor, proximity of the project to smoke sensitive areas will be addressed with project permit conditions. The Division may apply the factors and approve different DeMinimus Thresholds for good cause shown.
APPENDIX B ESTIMATING PM10 EMISSIONS FOR THE PURPOSE OF DETERMINING WHETHER A LANDOWNER/MANAGER IS A SIGNIFICANT USER OF PRESCRIBED FIRE TABLE I EXAMPLE BURNS Estimated to Potentially Produce 10 Tons of PM10 Emissions FUEL TYPE SIZE OF BURN FUEL LOADING FUEL CONSUMPTION ASSUMED ASSUMED (%)
Example 2 A manager is proposing to treat 140 acres of mixed conifer in this calendar year. It is estimated the fuel loading is 5 tons per acre and 48% of the area is to be burned. This burn is estimated to produce the following particulate matter emissions:
140 acres x 48% fuel consumption=67.2 black acres
(312 tons x 60 pounds PM10/ton) ÷ 2000 pounds/ton=9.36 tons of PM10 The PM10 emissions are below 10 tons. Based on this single burn, the manager is not defined as a "significant user of prescribed fire" in Regulation No. 9. If additional projects are to be completed in the same calendar year, the manager may be defined as a "significant user of prescribed fire" due to cumulative total PM10 emissions exceeding 10 tons. TABLE II SOURCES OF INFORMATION/DATA USED IN TABLE I FUEL TYPE REFERENCE REFERENCE . FUEL LOADING EMISSION FACTOR Grass Aids to Determining Fuel AP-42 , EPA, 1996, Models for Estimating Rocky Mountain Fire Behavior , US Grasslands Forest Service, 1982 and historical activity data Sagebrush Average of historical US Forest Service, Fire activity data reported to and Air Research Station the division memo to the division, Oakbrush or Aspen Average of historical AP-42 , EPA, 1996, activity data reported to Pacific SW Chaparral the division Pine/Conifer AP-42 , EPA, 1996, AP-42 , EPA, 1996, Wildfires and Prescribed Rocky Mountain Burning, Rocky Underburning Pine Mountain. Avg.
Pinon/Juniper Average of historical AP-42 , EPA, 1996, activity data reported to Pacific SW Pinon/Juniper the division Piled Slash Guidelines for Estimating AP-42 , EPA, 1996, Volume, Biomass, and Rocky Mountain Logging Smoke Production for Slash Piled Slash , US Forest Service, 1996 APPENDIX C PROGRAM COST AND DISTRIBUTION METHODOLOGY Fees that are levied by the Department to cover the costs of the Smoke Management Program are determined using the following methodology.
Cost of the Program The Colorado Air Pollution Prevention and Control Act require that the smoke management program fees cover the cost of the program. Section 25-7-106(7)(a), C.R.S. The Air Pollution Control Division's Fiscal Officer determined the cost of the program as implemented by this Regulation No. 9. The program cost is built upon estimates of the percent of each position devoted to all aspects of the Smoke Management Program (SMP). This percentage is applied to each position's salary and benefits. Operating costs and indirect costs are also included. The total cost of the SMP is $144,309.45 for calendar year 2005 and $174,585.08 for calendar year 2006 and succeeding years. Fee Use Functions of the SMP include but are not limited to: management, administration, permitting operations, modeling support, training of users of prescribed fire regarding air quality concerns and the SMP program, database management and reporting, fee program administration (including database management, invoicing, and/or customer service), regulatory development, guidance development, web page management/maintenance, compliance assistance, enforcement, field work, tracking of, and if necessary, involvement in wildfire monitoring, review of plans and involvement in public hearings, data entry, meteorological forecasting, and consultation on high smoke risk burns. Fee Calculation The annual program cost will be the smoke management program fee. The division cost for program administration will be recalculated annually and reported to the commission each August. If the division's annual program cost calculation exceeds five percent of the smoke management program fee reflected in the regulation, the division will seek a fee change through a commission rulemaking. The annual program cost calculation shall utilize the "total cumulative dollar difference" between the regulatory fee and the annual cost. It will be calculated by first computing a total projected smoke management program cost considering the projected salary and benefits for personnel associated with the program (apportioned according to the percentage of time assigned to the program for each position), indirect costs, travel costs, division operating costs, Department operating costs and Department indirect costs. That sum will be adjusted by the difference between salary and travel expenses and the previous year's projected salary and travel costs. The division will complete the calculation of the total cumulative dollar difference by summing: the difference between the adjusted program cost and the previous regulatory fee; and the total cumulative dollar difference from the previous year. Distribution of Cost The division will distribute the cost of the program to permittees as follows:
1. The fee for an unplanned ignition prescribed fire permit in effect for an area is $1000 per permitted area each year the permit is valid. Unplanned ignition prescribed fire permits are valid for up to 5 years.
2. The fee for a planned ignition prescribed fire permit for any permittee with a 3-year block average SMP score (see 3 below) under 1.00% is $100 per permit.
3. The fees for planned ignition fire permits for permittees with 3-year block average SMP score of 1.00% or greater shall be determined as follows:
Basis These rule revisions implement the provisions of Senate Bill 01-214 and relocate, update and reorganize existing provisions of Regulation No. 1 relating to open burning into Regulation No. 9. Regulation No. 9 deals solely with open burning activities. This new regulation contains permitting, monitoring, reporting and fee provisions, as well as requirements particular to significant users of prescribed fire. Specific Statutory Authority The Colorado Air Pollution Prevention and Control Act, sections 25-7-109(2)(e) and 25-7-123, C.R.S., provides the authority for the Commission to adopt and modify a program including emissions control regulations to control burning activities. Sections 25-7-106(7) and (8), 25-7-114.7(2)(a)(III) and 25-7-123, C.R.S., set forth specific requirements relating to activities by significant users of prescribed fire, including open burning activities by federal land managers. The Commission's action is taken pursuant to procedures set forth in sections 25-7-105, 25-7-110 and 25-7-110.5, C.R.S. Purpose Open Burning The focus of SB 01-214 is on open burning activities by significant users of prescribed fire. Addressing open burning issues is necessary in order to address emissions from natural and prescribed fires. The Grand Canyon Visibility Transport Commission identified these fires as having enough episodic impact on visibility at class I areas to overwhelm progress made through other emission control measures. The Commission views reduction of visibility impairment from fires as an important component in achieving federal and state visibility goals. This regulation should ensure that users of prescribed fire consider air pollution impacts in making determinations whether, and under what conditions, to use fire for grassland or forest management.
Permitting The regulation continues the existing prohibition on open burning absent a permit from the division or a local agency. The exemptions from this requirement also remain largely the same. In particular, agricultural open burning activity does not require a permit. The regulation specifies factors that the division must consider in deciding whether, and under what conditions, to issue a burning permit. These factors differ depending on the type of permit applicable to the proposed activity.
General open burning permits are the basic permits for most burning activities. General permits require that an applicant use best smoke management techniques to reduce or eliminate smoke impacts on the health and welfare of the public. Although the regulation includes a partial listing of methods to minimize fire emissions and smoke impacts, the Commission intends that the division will exercise its discretion to achieve the goals of this regulation without imposing unreasonable conditions. The division to local counties may delegate general open burning.
The next category of fire addressed by this regulation is planned ignition fires, which are a subset of prescribed fires for grassland and forestland management. The Commission decided to establish emissions and smoke de minimus threshold below which a permit applicant must only obtain a general open burning permit. For fires that will exceed that threshold, applicants intending to initiate a fire must obtain a permit for a planned ignition fire. Permits for this type of fire must address additional concerns beyond those applicable to general open burning activities. The Commission listed factors for division consideration in determining whether, and under what conditions, to issue a permit. This list is not exclusive and the division may incorporate in permits additional conditions if it finds them necessary to minimize the impacts of fire on visibility and on public health and welfare. These factors focus on identifying and minimizing impacts to smoke-sensitive receptors. In addition, planned ignition permit conditions should ensure that the permittee would take appropriate action to ensure that the fire remains within the terms of the permit or is managed so as to return it within those terms, or that the permittee will suppress the fire if compliance with permit terms cannot otherwise be achieved. Unplanned ignition fire permits offer persons a mechanism to use fire for grassland or forest management even though the precise time and location of a particular prescribed fire cannot be anticipated. These permits generally will apply to larger parcels of land, in some portion of which unplanned ignition may occur. The purpose of this permit type is to determine before ignition the conditions under which the fire may be used for resource benefit. As with planned ignition fires, permit conditions should ensure that the permittee will take appropriate action to ensure that the fire remains within the terms of the permit or is managed so as to return it within those terms, or that the permittee will suppress the fire if compliance with permit terms cannot otherwise be achieved.
This regulation focuses on fires that a person intends to use for a beneficial purpose, such as grassland or forest management. The Commission distinguished between those fires and wildfires. Wildfires are beyond the scope of this regulation and no permitting requirements apply to a land manager within whose jurisdiction a wildfire occurs.
The Commission also concluded that a public comment opportunity should be available regarding fires with a high smoke risk. The Commission intends that a high smoke risk rating be equivalent to a rating of 41 or greater from the draft Smoke Risk Rating Worksheet prepared by the division in conjunction with some users of prescribed fire and attached to this Statement of Basis and Purpose as Attachment A. The Commission recognizes that the division and users of prescribed fire may find it appropriate to revise the smoke risk rating methodology in the future. If this is done, the Commission intends that what constitutes a high smoke risk burn will consider at least the same factors as in Attachment A, and the point at which a fire becomes a high smoke risk should be equivalent to a rating of 41 on Attachment A. The division will determine which fires have a high smoke risk through consideration of the factors reflected in Attachment A. If, after considering these factors, the division concludes that the fire has a high smoke risk, it will allow the public thirty days in which to submit comments regarding whether a permit should be issued and what conditions are appropriate for inclusion in the permit. For planned ignition prescribed fires, the notice will include information about location of the fire, expected burn dates, expected duration of the fire, potential emissions, and potential air quality and visibility impacts at smoke sensitive receptors. The Commission intends that the division either add appropriate conditions or combine permits to prevent circumvention of the public comment requirement, should a permit applicant submit separate applications that may have the effect of dividing burns that are more appropriately considered together. This comment opportunity is subject to the Commission's Procedural Rules and includes the rights to a public comment hearing provided in those Rules. The comment opportunity does not include a right to an adjudicatory hearing to appeal issuance of a permit, as only the permit applicant may request such a hearing. Persons would still have recourse to seek judicial review of permits pursuant to the Administrative Procedures Act.
Significant users of prescribed fire Senate Bill 01-214 imposes on significant users of prescribed fire additional requirements to ensure that that those users consider air quality impacts in making decisions about when, and under what conditions, they will use fire for grassland or forest management. Senate Bill 01-214 defined a significant user of prescribed fire as a person or agency that collectively manages or owns more than 10,000 acres of land and that uses prescribed fire. The Commission enlarged on the part of this definition dealing with use of prescribed fire by establishing a minimum activity level based on PM10 emissions during a calendar year. The Commission concludes that users of prescribed fire at levels below this threshold do not have significant enough an impact on visibility and air quality to justify their inclusion in this part of the smoke management program. This provision will focus the regulatory requirements and the resources of the division and others on the prescribed fires with the greatest potential impact on visibility and human health and welfare. The Commission did not establish a de minimus threshold for other open burns, as even small fires intended to dispose of trash, rubbish and similar materials may have disproportionate impacts on local air quality.
The regulation imposes additional duties on significant users of prescribed fire, consistent with specific requirements in SB 01-214. Section 25-7-106(8)(b), C.R.S., requires that significant users submit planning documents to the Commission for comment and recommendations. This section also anticipates a hearing on the plans to allow public input. This public hearing requirement is similar to public hearing options applicable to major stationary source permitting. Public input on regulatory compliance and permits for major sources is important to public confidence in air pollution control efforts, particularly for long-term planning documents.
The Commission will hold public hearings to review the planning documents and may make comments and recommendations regarding the plans. Open burning permits for general, planned and unplanned ignition fires can only be issued to significant users of prescribed fire if the permit is consistent with the comments and recommendations of the Commission. The Commission intends that, wherever possible, the division will issue a permit with appropriate conditions in order to meet this requirement, rather than denying the permit altogether. This approach recognizes the value of prescribed fire in grassland and forestland management, but ensures that the air quality goals of SB 01-214 and this regulation are adequately protected.
The Commission defined planning documents and tailored the applicable regulatory requirements to focus submittals and Commission review on the process used by a significant user of prescribed fire, rather than on the results of that process in a specific instance. The Commission does not intend to challenge land use decisions made by the land manager. The purpose of the Commission comments and recommendations will be to ensure that the land manager adequately considers air quality impacts when making decisions whether, and under what conditions, to use prescribed fire. The Commission planning document review will focus on how a significant user of prescribed fire will meet the state air quality protection standard expressed in section 25-7-106(7)(e), C.R.S. Planning documents should summarize the decision process by which the land manager identifies and selects among alternative treatment methods for fuel reduction. The documents should provide a specific description relevant to accomplishment of the state air quality goal expressed in § 25-7-106(7)(e), C.R.S. This requirement will focus the land manager decision-making process on the goals of Senate Bill 01-214. The Commission recognizes that planning documents will vary in their level of detail and sophistication in describing decision mechanisms used by land managers, particularly during the initial set of Commission reviews. Commission comments and recommendations may extend to beneficial changes in planning documents as well as improvements in the land manager planning process related to consideration of the state air quality goal.
Specific permit conditions may be excluded from a permit if a federal land manager asserts that a federal statute specifically prohibits the compliance with the condition. In adopting this regulation, the Commission made no evaluation whether any particular federal statute or permit condition may justify exclusion of a permit condition. Nevertheless, section 118 of the federal Clean Air Act, 42 U.S.C. §7418, subjects federal agencies engaging in activities resulting, or which may result, in discharge of air pollutants to state requirements on control and abatement of air pollution "in the same manner, and to the same extent as any nongovernmental entity." This waiver of federal sovereign immunity allows states to subject federal agencies to any substantive, procedural, permitting, fee or any other requirement. The Colorado General Assembly enacted §25-7-106(7), C.R.S., pursuant to §118 and directed that this subsection be construed to exercise the full extent of the state's authority regarding pollution from federal facilities. The Commission intends these revisions to comport with §118 and to exercise the state's authority to its full extent. The Division should consider this intent in deciding whether a federal statute specifically prohibits imposition of a particular permit condition. The rule also establishes a means for dealing with outdated plans or documents. The Commission chose to view a plan as being outdated upon expiration of the period for which the plan itself states it is applicable, up to ten years. The Commission may make comments or recommendations in the review process that urge a shorter applicable period than anticipated in the planning document. Any such comments will recognize applicable constraints on preparation of updated documents, such as the provisions of the National Environmental Policy Act.
The regulation establishes a means for dealing with lands acquired by a significant user of prescribed fire after the Commission reviews an initial or later version of a planning document. The Commission concluded that requiring changes and further review of planning documents whenever a significant user acquires land would unduly increase the burdens of the review process on the Commission, the division and the land managers. In general, the Commission anticipates addressing planning documents for these lands at the next regular review, so long as the acquired lands will be managed in largely the same way as those already addressed by the Commission. Where there will be a substantial difference in management of the acquired lands, the Commission concluded that the land manager must submit planning documents to address the anticipated management. Fees and Monitoring Senate Bill 01-214 directed the Commission to include within its smoke management program provisions for fees necessary to pay for administration of the program. Since the General Assembly granted the direct authority to develop a fee program for the smoke management program, the Commission is not required to utilize the fee mechanism applicable to traditional stationary sources. The Commission chose to apportion the cost of administering the program among users of prescribed fire rather than relying on traditional emissions fees. In part, this conclusion was due to the unique characteristics of this emission source category including highly variable emissions from one year to the next. Therefore, the Commission concluded that the traditional emission fee approach would result in substantially greater administrative burdens for both the Division and for users of prescribed fire. The methodology adopted combines the proportion of the total number of permits and total PM10 emissions of a particular user to determine the appropriate fraction of the program cost payable by that user. This approach will provide an equitable distribution of the costs of administering the common elements of the program. The Commission intends that fees paid by stationary sources will not be used to pay any portion of the smoke management program costs.
The total administrative cost of $129,646.45 at the outset is specified in an appendix to the regulation and the Commission intends that any change to it or the distribution methodology occur only through a properly noticed public rule-making hearing before the Commission. To that end, the cost is included in the regulation as the regulatory "fee." The division cost for program administration will be recalculated annually and reported to the Commission each August. If the total cumulative dollar difference between the cost reflected in the regulation and the division's annual calculation exceeds five percent, the division will seek a fee change through a Commission rulemaking. The "total cumulative dollar difference" between the regulatory fee and the annual cost will be calculated considering personnel and indirect and operating costs associated with the program, and the cumulative dollar difference from the previous year. This calculation will be performed substantially in accordance with the Colorado Smoke Management Program Cost and Fee Calculation Template (Attachment B). The Commission also intends that the actual revenue collected be reported annually. If collections are consistently below projections, the division shall seek an appropriate fee adjustment consistent with the shortfall in revenue. In addition, the Commission imposed a fee pursuant to section 25-7-114.7(2)(A)(III), C.R.S., to cover the direct and indirect costs of evaluating planning documents submitted to the Commission. In order to reduce the administrative burden on the division and permittees, both the evaluation fees and the administration fee will be billed annually.
The rule revisions adopted address the procedural mechanisms for accomplishing the mandatory requirements of Senate Bill 01-214. The general structure of the smoke management program has been established by statute. The Commission's rule implements that legislative prescription; the revisions adopted set a de minimus level for significant users of prescribed fire, establish a fee mechanism and delineate the specifics of the program anticipated by the statute. The Commission concludes that these rule revisions are adopted to implement prescriptive state statutory requirements, where the Commission is allowed no significant policy-making options, for the purposes of § 25-7-110.5, C.R.S. The Commission also concludes it has no discretion under state law to adopt alternative rules that differ significantly from these revisions, for the purposes of § 25-7-110.8(1), C.R.S. Accordingly, the Commission did not include in the record some of the portions of the rulemaking prerequisites addressed in § 25-7-110.5, C.R.S., and did not make specific determinations regarding the factors listed in § 25-7- 110.8(1), C.R.S.
The Commission took into consideration the appropriate items enumerated in section 25-7-109(1)(b), C.R.S.
AIR QUALITY CONTROL COMMISSION ADOPTED: JANUARY 17, 2002 IX.B December 19, 2002 Statement of Basis, Specific Statutory Authority and Purpose (5 CCR 1001-11)
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, section 24-4-103, C.R.S., and the Colorado Air Pollution Prevention and Control Act, sections 25-7-110 and 25-7-110.5, C.R.S., and implements parts of sections 25-7-106(7) and (8), 25-7-114.7 and 25-7-123, C.R.S.
Basis This rule revision updates the fee provisions of Regulation No.9. Regulation No. 9 anticipates that the Commission will review and, as necessary, change the fee charged for program administration. Specific Statutory Authority The Colorado Air Pollution Prevention and Control Act, sections 25-7-109(2)(e) and 25-7-123, C.R.S., provides the authority for the Commission to adopt and modify a program including emissions control regulations to control burning activities. Pursuant to section 25-7-106(7)(a), C.R.S., the Commission program for significant users of prescribed fire includes fees necessary to administer the program. The Commission's action is taken pursuant to procedures set forth in sections 25-7-105, 25-7-110 and 25-7- 110,5, C.R.S.
Purpose When it adopted Regulation No. 9 in order to implement Senate Bill 01-214, the Commission elected to treat the program costs as the program "fee" required by the legislation. In the regulation, the Commission required the Division to recalculate the program cost annually and to provide a briefing to the Commission each August. Based on the Program Cost and Distribution Methodology contained in Appendix C, the Division calculated the initial cost for the program. The Commission included the total administrative cost of $129,646.45 for calendar year 2002 in Appendix C to the regulation. In this proceeding, the Commission considered and adopted a change to the projected 2003 program cost and corrected an error in Appendix C. As a result, the "fee" in Appendix C is "$144,309.85 for calendar year 2003 and succeeding years." The fee amount of $144,309.85 is intended to apply beginning calendar year 2003. The Division will bill users of the fire program for activity during 2002 using the $129,646.45 amount. Users of the fire program during 2003, and thereafter if the fee is not adjusted subsequently, will be subject to the $144,309.85 amount.
The Division calculated the projected program cost for calendar year 2003 as $144,309.85, representing an increase of 11% over the 2002 fee. This increase largely results from a position within the program that was hired in 2002 and worked only 2 months of that calendar year but will be filled for all of 2003. The calculation is based on the methodology contained in Appendix C. The Commission reviewed the calculation of the changes between the 2002 cost projection and the 2003 cost projection and concluded that the fee amount proposed by the Division represents the program cost for calendar year 2003. Accordingly, the Commission adopted $144,309.85 as the program cost and fee to begin in calendar year 2003.
IX.C February 19, 2004 Statement of Basis, Specific Statutory Authority and Purpose This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, section 24-4-103, C.R.S., and the Colorado Air Pollution Prevention and Control Act, sections 25-7-110 and 25-7-110.5, C.R.S. Basis The rule revisions adopted change the method used to distribute the fees for users of planned and unplanned ignition prescribed fire permits utilizing the division's Smoke Management Program. Specific Statutory Authority The Colorado Air Pollution Prevention and Control Act, section 25-7-109(2)(e), C.R.S., provides the authority for the Commission to adopt and modify emissions control regulations pertaining to open burning activities.
The Commission's action is taken pursuant to procedures set forth in sections 25-7-105, 25-7-110 and 25- 7-110.5, C.R.S. The Commission took into consideration the appropriate items enumerated in section 25- 7-109(1)(b), C.R.S.
Purpose In 2002, the Commission adopted regulations to implement the requirements of Senate Bill 99-145 and Senate Bill 01-214 relating to open burning activities by public and private land managers and other significant users of fire for range and forest management. The regulation included a mechanism intended to distribute equitably the cost of the program among the users and to provide revenue certainty to the Division. In practice, fire users subject to the program have experienced substantial uncertainty in their budgeting process because the fee assessments are not determined until the spring following the year for that fee.
The revisions adopted restructure the fee distribution system into the following components. The first is a flat fee of $1000 per year for all unplanned ignition fire permits. Such permits are valid for up to 5 years. The second is a flat fee for small users of planned ignition prescribed fire, which will be charged $100 for each permit. Rather than recalculating the program cost share each year for larger users, the Division will determine the three-year average of proportion of permits and actual PM10 emissions for the user. That proportion will be used to divide the program cost among the large users. Although there may be some variations in fees from year to year, they will be smaller than those occurring under the present system. These proportions will be recalculated every three years to accommodate program participation changes among large users.
IX.D February 19, 2004 Statement of Basis, Specific Statutory Authority and Purpose This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, section 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act, sections 25-7-110 and 25-7-110.5. Basis The rule revisions adopted change the evaluation method used to distinguish between the permit requirements for prescribed fires above and below a threshold depending on the potential for smoke impacts from the fire.
Specific Statutory Authority The Colorado Air Pollution Prevention and Control Act, section 25-7-109(2)(e), C.R.S., provides the authority for the Commission to adopt and modify emissions control regulations pertaining to open burning activities.
The Commission's action is taken pursuant to procedures set forth in sections 25-7-105, 25-7-110 and 25- 7-110.5, C.R.S. The Commission took into consideration the appropriate items enumerated in section 25- 7-109(1)(b), C.R.S.
Purpose In 2002, the Commission adopted regulations to implement the requirements of Senate Bill 99-145 and Senate Bill 01-214 relating to open burning activities by public and private land managers and other significant users of fire for range and forest management. Those regulations included in Appendix A, a rating table for the Division to use to identify fires with a low enough potential for smoke impact that use of a general open burning permit sufficed to prevent undue air quality impacts. Division experience since that time indicates that the rating table failed to allow sufficient evaluation of the potential impacts from specific fires. In this proceeding, the Commission substituted for the table a more flexible mechanism for the Division to make its determinations. The Commission chose the project size, fuel type, duration and proximity to smoke-sensitive receptors as the most important factors in these evaluations. The Commission has provided guidelines in the Appendix regarding the application of the first 3 factors to identify low smoke risk burns. The final factor shall be addressed in permit conditions. The Commission has also provided that the Division may apply the factors to arrive at somewhat different thresholds as compared to the guideline table in Appendix A as long as the Division provides evidence how the factors are still adequately addressed to ensure the burn is indeed low or no smoke risk. The Commission intends by this change only to simplify and improve the process for assessing smoke impact potential. The purpose of the revisions is not to allow fire users to avoid the more substantial requirements associated with prescribed fire permits unless the potential for smoke impacts is found to be low. The Division is to issue guidance regarding the application of the identified factors to reflect Commission intent.
IX.E February 19, 2004 Statement of Basis, Specific Statutory Authority and Purpose This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, section 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act, sections 25-7-110 and 25-7-110.5. Basis The rule revisions adopted remove a requirement for an unplanned ignition permit renewal where more than 500 acres burn within a permitted burn area during a calendar year. That requirement prompted unnecessary renewals where the terms of the permit in general remained substantially unchanged. Specific Statutory Authority The Colorado Air Pollution Prevention and Control Act, section 25-7-109(2)(e), C.R.S., provides the authority for the Commission to adopt and modify emissions control regulations pertaining to open burning activities.
The Commission's action is taken pursuant to procedures set forth in sections 25-7-105, 25-7-110 and 25- 7-110.5, C.R.S. The Commission took into consideration the appropriate items enumerated in section 25- 7-109(1)(b), C.R.S.
Purpose In 2002, the Commission adopted regulations to implement the requirements of Senate Bill 99-145 and Senate Bill 01-214 relating to open burning activities by public and private land managers and other significant users of fire for range and forest management. Section VI.B of Regulation No. 9 allows the Division to issue unplanned ignition fire permits for up to five years if no more than 500 acres burn within the burn area during any calendar year. The expectation in adopting this provision was that large fires would drive significant changes in the fire use plan. Experience in the interim demonstrates that even large fires have not in most cases required significant changes in the permit. The existing regulation created an undue burden on both permittees and the Division by requiring new applications, proposed permits and public comment processes. This revision reduces that burden in the recognition that the permits remain substantially similar and that the renewal did not serve a significant public interest. IX.F March 12, 2004 Statement of Basis, Specific Statutory Authority and Purpose This statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, section 24-4-103, C.R.S. and the Colorado Air Pollution Prevention and Control Act, sections 25-7-110 and 25-7-110.5. Basis The rule revisions adopted address the use of air curtain destructors for burning materials generated as a result of projects conducted to reduce the risk of wildfire. Regulation 9 deals with open burning activities and Regulation 3 contains emission notice requirements. The Common Provisions Regulation contains a definition related to these devices.
Specific Statutory Authority The Colorado Air Pollution Prevention and Control Act, section 25-7-109(2)(e), C.R.S., provides the authority for the Commission to adopt and modify emissions control regulations pertaining to open burning activities. These regulatory changes implement the provisions of the Colorado Air Pollution Prevention and Control Act, 25-7-101, et. seq., that prohibit anyone from operating an air pollution source such as an air curtain destructor without first obtaining a permit. The Commission's action is taken pursuant to procedures set forth in sections 25-7-105, 25-7-110 and 25- 7-110.5, C.R.S. The Commission took into consideration the appropriate items enumerated in section 25- 7-109(1)(b), C.R.S.
Purpose In 2002, the Commission adopted regulations to implement the requirements of Senate Bill 99-145 and Senate Bill 01-214 relating to open burning activities by public and private land managers and other significant users of fire for range and forest management. Since that action, the public and both state and federal agencies have focused on the risks associated with wildfires, particularly in the forest/urban interface throughout Colorado. The Commission views reduction of the risks associated with wildfires and their potential for serious public health consequences as a result of the emissions from the fires as an important component in protecting public health and the environment. The Commission also views the use of methods to reduce risk that also reduce air pollution emissions compared to other methods as an additional important factor. In this rule adoption, the Commission acted to enlarge the options available to dispose of materials generated by projects conducted to reduce the risks of wildfire. It is the intention of the Commission that practical alternatives to burning be used when they exist. The Commission reviewed the available emissions data and limited uses proposed for air curtain destructors. That information demonstrated to the satisfaction of the Commission that, with appropriate permit conditions, the destructors can safely be used to dispose of certain materials without endangering public health or causing or contributing to a violation of the National Ambient Air Quality Standards (NAAQS) and will reduce emissions compared to traditional pile burning. The Division performed an air dispersion modeling analysis on December 30, 2003. The analysis is based on the assumption that the air curtain destructors operate no more than 13 hours per day and no more than 110 days per year at a single site. In addition, it is assumed that no more than 20 tons of fuel will be burned per hour. At this level of operation and fuel throughput, the device would be limited to 110 days per year to meet the restriction in the proposed regulation that no more than 100 tons of any criteria pollutant be emitted per year.
Screening level air quality analyses suggest that emissions from air curtain destructors are not expected to cause violations of the carbon monoxide, sulfur dioxide, and nitrogen dioxide ambient air quality standards except in situations where the air curtain destructor is operated next to a nearby source of air pollutants that is already causing high air pollution impacts in an area that, for one reason or another, has poor existing air quality. The analyses suggest it would be prudent to require setbacks in the regulation to prevent public exposure to potentially elevated PM10 levels near the units. The proposed setbacks of 150 feet and 300 feet for short-term versus long-term sites are reasonable except in situations where the air curtain destructor is located near another stationary source of fugitive PM10 emissions. Accordingly, the rule adopted prohibits co-location of an air curtain destructor with another air curtain destructor or any facility that is required to have an air quality permit or any commercial or industrial facility. The rule adopted contains specific limitations to assure that the devices are operated consistently with the Commission's expectations. The rule adopted allows disposal of wood products generated by projects conducted to reduce the risks of wildfire. The information presented to the Commission did not demonstrate that air curtain destructors are appropriate for disposal of other materials including clean lumber.
IX.G December 15, 2005 Statement of Basis, Specific Statutory Authority and Purpose This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, section 24-4-103, C.R.S., and the Colorado Air Pollution Prevention and Control Act, sections 25-7-110 and 25-7-110.5, C.R.S., and implements parts of sections 25-7-106(7) and (8), 25-7-114.7 and 25-7-123, C.R.S.
Basis This rule revision corrects clerical errors in published regulations related to the Smoke Management Program. The insertions and deletions to regulatory language in this rulemaking will bring published regulatory language into conformance with what the Commission adopted in actions at past rulemaking hearings.
Specific Statutory Authority The Colorado Air Pollution Prevention and Control Act, sections 25-7-109(2)(e) and 25-7-123, C.R.S., provides the authority for the Commission to adopt and modify a program including emissions control regulations to control burning activities.
The Commission's action is taken pursuant to procedures set forth in sections 25-7-105, 25-7-110 and 25- 7-110.5, C.R.S. The Commission took into consideration the appropriate items enumerated in section 25- 7-109(1)(b), C.R.S.
Purpose In this proceeding, the Commission considered and adopted changes to Regulation No. 9 to bring the published versions of the regulation into conformance with what the Commission adopted during previous rulemaking hearings that occurred on February 19, 2004 and March 12, 2004. The corrections were needed due to clerical errors in the published versions of the rules that remained unnoticed until July 2005.
Accordingly, the Commission adopted corrections to Regulation No. 9. IX.H December 14, 2006 Statement of Basis, Specific Statutory Authority and Purpose This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, section 24-4-103, C.R.S., and the Colorado Air Pollution Prevention and Control Act, sections 25-7-110 and 25-7-110.5, C.R.S. Basis This rule revisions adopted change the percentages used to distribute the fees for users of planned and unplanned ignition prescribed fire permits utilizing the division’s Smoke Management Program. Specific Statutory Authority The Colorado Air Pollution Prevention and Control Act, sections 25-7-109(2)(e), C.R.S., provides the authority for the Commission to adopt and modify a program including emissions control regulations pertaining to open burning activities.
The Commission's action is taken pursuant to procedures set forth in sections 25-7-105, 25-7-110 and 25- 7-110.5, C.R.S. The Commission took into consideration the appropriate items enumerated in section 25- 7-109(1)(b), C.R.S.
Purpose In January 2002, the Commission adopted regulations to implement the requirements of Senate Bill 01- 214 relating to open burning activities by federal land managers and other users of fire for range and forest management. The regulation included a mechanism intended to distribute equitably the cost of the program among the users and to provide revenue certainty to the Division. The fee distribution portion of the regulation was revised in 2003 at the request of federal land management agencies. Revisions adopted restructure the fee distribution system into the following components. The first is a flat fee of $1000 for all unplanned ignition fire permits. The second is a flat fee for small users of planned ignition prescribed fire, which are charged $100 for each permit. Rather than recalculating the program cost share each year for larger users, the Division determines the three-year average of proportion of permits and actual PM10 emissions for the user. That proportion is used to divide the program cost among the larger users. Although there are some variations in fees from year to year, they are much smaller than those occurring under the previous system. These proportions are to be recalculated every three years to accommodate program participation changes among users. The revisions adopted update the recalculations of the proportions based on recent activity information collected by the division of users of the smoke management program. The revisions are applicable for fee distribution calculations for users of the program during calendar years 2006, 2007, and 2008; with billing of users based on the adopted percents to occur in 2007, 2008 and 2009, respectively. IX.I June 21, 2007 Statement of Basis, Specific Statutory Authority and Purpose This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, section 24-4-103, C.R.S., and the Colorado Air Pollution Prevention and Control Act, sections 25-7-110 and 25-7-110.5, C.R.S. Statutory Authority The Air Quality Control Commission is authorized to adopt these revisions to Regulation Number 9 and Regulation No. 1 pursuant to C.R.S. § §25-7-106(7), (8) (2001) and 25-7-123(1) (2001). Basis and Purpose Prescribed Fire Regulation by Counties Current regulations provide that the Division issues permits for a prescribed fire. This revision clarifies that the Division, as well as local agencies that have been designated agents of the Division, may issue wildland fire permits. The revision also exempts such permits issued by delegated local agencies from State fees. The Division retains oversight of the program should a local agency fail to administer the program as per Regulation No. 9.
The Division is authorized to delegate open burn regulation to local agencies under C.R.S. §25-7-111(2) (f). The Division may designate local agencies as agents of the state to administer powers and duties such as open burn regulation. Limited delegations are good policy because local governments are closest to the challenges of conducting such burning. They can work more closely and consistently with a larger number of local landowners to ensure timely inspection of proposed projects, more effective compliance assistance, and more effective smoke monitoring. This revision is necessary to avoid any confusion among land managers regarding which agency issues burn permits. Over the past thirty years, the Division has designated agencies from twelve counties as agents of the Division for the purpose of administering general open burn permitting. However, the general open burn program is limited to de minimus wildland fuel piles (as defined in Regulation 9 Appendix A). The pine beetle epidemic has changed the needs of all stakeholders. Certain Colorado counties are facing a critical need for tools to use in the management or disposal of dead timber after forests have been devastated by the pine beetle epidemic. The spread of the epidemic has been exponential, creating huge volumes of trees and woody debris to dispose of responsibly. The United States Forest Service estimates that 50-60% of the mature lodge pole trees in Summit County are dead or dying. The numbers climb to 80-90% in Grand County. Eagle County is also heavily impacted. The risk of catastrophic wildfire has increased by these large stands of diseased or dead trees. While no one approach will solve all the problems associated with dealing with the huge volume of trees to be disposed of, responsible burning is one option.
Recently local county agencies and landowners in these areas have contacted the Division regarding the burning of piles of logged trees under local permitting. The Division has been collaborating with local counties affected by the mountain pine beetle epidemic to evaluate the prospect of delegating the prescribed fire program to willing and able county agencies. It now makes sense to designate local agencies to permit larger pile burns than possible under a general open burning permit. The Division believes that in the face of the pine beetle kill challenge, if local agencies are properly staffed and prepared to assume the responsibilities of permitting, it is appropriate to consider developing a written delegation agreement. Thus, the Division is now working on a delegation for the prescribed fire program to local agencies.
Training and Instructional Fires Wildland fuel burns that have a training or instructional component but are large enough to constitute prescribed fires will now be subject to Regulation 9 permitting requirements. Prescribed fires are burns large enough to be over the de minimus low smoke risk threshold in Regulation 9, Appendix A. This change will require the permittees to insure that the smoke is managed responsibly and that public health is considered. Open burns causing de minimus smoke emissions that are used for training purposes are still exempt from permitting requirements.
Prior to this revision, Regulations 1 and 9 exempted all training and instructional fires from permitting by the Division. However, this exemption does not reflect the realities of wildfire suppression training. Few, if any, burns are used exclusively for wildland fire suppression training. These burns accomplish several objectives in addition to training, such as habitat improvement, weed control, and wildfire fuel control. Most prescribed fires are used for training to some degree. Prior to this revision, these fires would arguably be entitled to an exemption.
Prescribed fires are, by definition, large with significant emissions that can impact residents in the vicinity of the fire. If the Division were to grant an exemption for every prescribed burn that involves training, few prescribed fires would be permitted. Without a permit, the Division cannot ensure that the land manager is implementing the controls that are necessary to protect public health and safety. Wildland fire instructors usually consider applying for and obtaining a planned ignition fire permit from the Division as part of the training exercise. This revision reflects that burn permits are necessary for burns that exceed the de minimus smoke emissions threshold and the industry practice of requesting a permit. The Division is aware of instances where structures were ignited under the training exemption yet did not receive a Demolition Notice from the Division prior to ignition to assure they were free from asbestos. This revision does not require permitting for structural fire fighting training, though it does include a cross reference to Regulation Number 8, Part B, Section III.E.1. concerning the possible need for a Demolition Notice to assure the structure is free of asbestos before the structure is burned. _____________________________________________________ Editor’s Notes History Entire Rule eff. 8/30/2007.