OAR 340-266-0065: Emergency Open Burning

In accordance with ORS 468A.610(11)(a), the Department of Environmental Quality may by order allow up to 2,000 acres each calendar year for emergency open burning, propane flaming or stack burning to address a disease outbreak or insect infestation on a grass seed or cereal grain field. A grower seeking emergency burning authorization must submit a petition to the Department of Environmental Quality requesting emergency burning in accordance with the dates specified in subsection (9), and shall include the information as provided in this rule. (1) Such burning shall be limited to the minimum number of acres on the field to address the emergency, and in no case exceed the acreage approved for burning by the Department of Environmental Quality under these rules. (2) In addition to the general requirements for burning in OAR 340-266-0040, any emergency burning approved under these rules shall be subject to special field-by-field authorization by the Department of Agriculture, and a field specific smoke management burn plan required in subsection (6), to protect public health and safety. (3) Emergency burning shall be subject to the requirements in OAR 340-266-0050, including the registration and burn fee. (4) Based on the submittal dates specified in subsection (9), a grower seeking emergency burning approval shall submit a petition to the Department of Environmental Quality containing the following documentation: (a) A field burning registration form, in accordance with OAR 340-266-0050(1). (b) Severity of the disease outbreak or insect infestation, the minimum number of acres being requested for burning to address the problem, and the type of burning to be used (open burning, propane flaming, or stack burning). (A) Documentation shall include seed testing results from the most recent seed harvest, obtained from an independent seed lab operated by a registered seed technologist (RST), which shows the seed quality and purity results from the infested field or acreage, and how this is evidence of a major disease outbreak or insect infestation. Emphasis should be given to seed germination testing results, and whether the germination percentage is more than 10 percent under the required percentage established for that specific grass variety. Growers are encouraged to submit seed testing results and reference the Seed Standards established by Oregon Seed Certification Service at Oregon State University, as part of this documentation. (B) Other documentation besides seed testing results may be submitted by the grower providing it also shows evidence of a major disease outbreak or insect infestation. (C) Description of the extent of damage to the grass stand, whether stand replacement would be needed if no burning is conducted, and the extent to which burning is expected to remedy the disease outbreak or insect infestation. This shall include whether any alternatives to burning, such as crop rotation or chemical treatments, would be similar to or more effective in eradicating the problem. (D) For the information noted above in paragraphs (A), (B) and (C), growers are required to include documentation from an extension agent, agronomist, or consultant. (c) Description of how the severity of the disease outbreak or insect infestation affects the market value of the harvested seed and the extent of the financial or economic hardship this poses. This description shall include an estimate of the overall financial loss from the outbreak or infestation, in relation to total number of grass seed fields that are part of grower’s farming operation, as a means of showing the extent of the financial impact, which shall be considered in the determination of extreme hardship. (d) A field specific smoke management burn plan, as described in subsection (6) below. (5) After receiving a petition for emergency burning, the Department of Environmental Quality may request additional information from the grower petitioner, in accordance with the provisions and conditions listed in subsection (4). (6) Included in the emergency burning petition shall be a field specific burn plan, containing the information listed below. The information in subsection (a) below shall be provided primarily by the grower petitioner, in consultation with the Department of Agriculture. The information in subsections (b) and (c) shall be determined primarily by the Department of Agriculture, in consultation with the grower petitioner. (a) Location of the field, and description of the potential risk to the public, associated with the burning of the field. This includes: (A) Whether any burning restrictions or prohibitions apply to the field, as identified in OAR 340-266-0075, related to priority areas, critical non-burn areas, fire safety buffer zones, or problem fields. (B) Any other unique factors in addition to (A) above, such neighboring homes or residential areas within a 1/4 mile of the field, or any special events, community activities, sporting events, etc., that should be avoided on certain dates, that can be reasonably known in advance. (b) Optimum meteorological conditions for burning the field, related to information provided in subsection (a). This includes the appropriate surface and transport winds, humidity, mixing height, and ventilation conditions. (c) Any special field preparation (such as fluffing), ignition techniques, need for preparatory burning, or other burning related precautions and instructions. (7) In making a determination to approve a petition, based on the authority specified in subsection (10), the Department of Environmental Quality shall approve all, part, or none of the acres requested for emergency burning, based on the following: (a) The information submitted under subsections (4)(b) and (c). (b) Review of the field specific burn plan, required in subsection (6), and the extent of the constraints associated with burning the field and likelihood that the field can be burned with the risk to the public minimized to the greatest extent practicable. (c) Prior to approving any emergency burning petition, the Department of Environmental Quality shall post the field specific burn plan, and a summary of the emergency burning petition, on DEQ’s website for a period of 7 days. Interested persons will be notified by the Department of Environmental Quality prior to or on the day of the posting. Comments can be submitted to the Department of Environmental Quality on the proposed burn plan during the 7 day period. Any comments received will be considered by the Department of Environmental Quality prior to acting on the emergency burning petition. (d) Whether emergency burning petitions submitted by the dates in subsection (9) exceeds the specific allocation listed. In the event the total acres requested for emergency burning exceeds these allocations, the petitions shall be prioritized on a case-by-case basis, as part of the approval process. (e) After evaluating all the information received pursuant to this rule concerning an emergency burning petition, the Department of Environmental Quality shall make a finding of whether an extreme hardship due to disease outbreak or insect infestation exists, and if so, whether it outweighs the dangers to public health and safety from emergency open burning, in accordance with ORS 468A.610(11)(a). (8) Authorization for burning shall be provided on the day of the burn by the Department of Agriculture, as described in subsection (2). (9) Petitions for emergency burning can be submitted at two different time periods during the year. The first is between March 1 and June 1. The second is between July 1 and September 1. (a) Petitions submitted between March 1 and June 1 shall include the documentation specified in subsection (4), based primarily on evidence of a disease outbreak or insect infestation from the prior year seed harvest, and any other more recent evidence if available. These petitions shall also include an estimate of the affect on the upcoming seed harvest. These petitions will be limited to a 1,000 acre allocation, out of the annual 2,000 acre limit for emergency burning. After reviewing all petitions received by June 1, the Department of Environmental Quality shall notify each grower petitioner whether all, part, or none of the acres requested for emergency burning were approved. (b) Petitions submitted between July l and September 1 shall include the documentation specified in subsection (4), based primarily on evidence of a disease outbreak or insect infestation from the most recent seed harvest. Prior year seed harvest information may be included, as well as other more recent evidence if available. These petitions shall be limited to a 1,000 acre allocation, out of the annual 2,000 acre limit for emergency burning. If any of the prior allocation in subsection (a) remains, it will be carried over to this allocation. Petitions submitted during this time period will receive an allocation on a first-come first-serve basis. However, petitions approved prior to August 15 will only allow a maximum of 200 acres per petition. After August 15, this limit will not apply, and the remainder of the allocation will be available on a first-come first-serve basis, providing any of the allocation remains. For each petition submitted during this time period, the Department of Environmental Quality shall notify each grower petitioner whether all, part, or none of the acres requested for emergency burning were approved. (c) Any petitions not approved in subsection (a) due to limited allocation can be resubmitted on July 1 to be eligible to that allocation, subject to the same first-come-first serve allocation method. (10) The Commission delegates to the Director the authority to permit emergency burning by order pursuant to and by the standards contained in ORS 468A.610(11)(a).