Jan 30 2007

The evolution of a burn

Published by at 9:57 pm under Idaho

An Idaho burn
Smoke plume near Worley/photo Jessica Caplan/SAFE

In its decision effectively tossing out the state of Idaho’s ability to allow grass field burning in Northern Idaho, the 9th Circuit Court of Appeals remarks, “The current treatment of field burning in the Idaho SIP [state implementation plan, a revised version of which allows the burns] came about as the result of a thirty-five-year regulatory evolution.” An evolution from one set of intents (and one kind of politics) to another it certainly was; but it was the fact of the evolution, as much as anything else, that led the court to its conclusion.

Field burning has been used for many years as part of grass seed production, not just in Idaho (it is used in parts of the souther Willamette Valley as well), and is thought to improve the quality of the crop. There are arguments that it has beneficial environmental effects. There’s no question, though, that it also produces air pollution – very visibly, and easily smelled. It is obvious enough that one of the farmers’ biggest adversaries long has been Duane Hagadone and his news organizations; Hagadone well understands what tourists think of smoked-up lakefronts, such as where his resort and gold course are located. But the most powerful arguments come from people with respiratory impairments; some of them are literally put at risk of their lives from the smoke. There is a care active organization battling the burns, called Safe Air For Everyone, which has picked up a number of larger allies.

When the Clean Air Act was passed in 1970 and Idaho, like other states, submitted an implementation plan – which, once adopted and approved by the EPA, has the effect of federal law – it mentioned the burns. The burns were allowed, with limitations, such as that “When such burning creates air pollution or a public nuisance, additional restrictions may be imposed to minimize the effect upon the environment.” In 1993, Idaho proposed and the EPA accepted a revision of the implementation rules that deleted field burns from the list of acceptable burns in the state. There were more minor, technical, changes in 2003.

In 2005, the state of Idaho Idaho made another revision, to add this: ““The open burning of crop residue on fields where the crops were grown is an allowable form of open burning if conducted in accordance with the Smoke Management and Crop Residue Disposal Act and the rules promulgated pursuant thereto.” There were protests to the EPA, but the agency approved the change.

Not good enough, the court said, in part because changes in state SIPs can’t have the effect of weakening the provisions of the Clean Air Act. And, it said, in contrast to the EPA’s take on the Idaho changes, this change clearly did.

In commenting to EPA about Idaho’s proposed amendment to the SIP, SAFE maintained that its approval would weaken the prior SIP and thereby violate sections 110(l) and 193 of the CAA. Section 110(l) provides that EPA “shall not approve a revision of a [SIP] if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress . . . or any other applicable requirement of this chapter.” 42 U.S.C. § 7410(l). Section 193 provides that “[n]o control requirement in effect, or required to be adopted by an order, settlement agreement, or plan in effect before November 15, 1990, in any area which is a nonattainment area for any air pollutant may be modified after November 15,
1990, in any manner unless the modification insures equivalent or greater emission reductions of such air pollutant.” Id. § 7515. In its 2005 approval of the amendment, EPA denied the amendment contravened either of these statutes. Final SIP,
70 Fed. Reg. at 39,659-60. SAFE now challenges those determinations. We do not reach those broad statutory challenges, except to hold that EPA’s reasoning in rejecting them cannot be squared with our interpretation of Idaho’s pre-2005 SIPs.

As we have explained, EPA’s decision to approve the 2005 amendment to Idaho’s SIP rested on the fundamental premise that “EPA does not believe that Idaho’s existing SIP when viewed in its entirety prohibits the burning of crop residue.”

. . . We have held EPA’s conclusion that the preexisting SIP did not ban field burning legally erroneous. Because that flawed premise is fundamental to EPA’s determination that it did not contravene sections 110(l) or 193 of the CAA by approving the 2005 SIP, EPA’s outcome on those statutory interpretation questions is “arbitrary, capricious, or otherwise not in accordance with law” for the purposes of our review. Hall, 273 F.3d at 1155. We therefore grant SAFE’s petition and remand to EPA for its consideration of Idaho’s proposed amendment as a change in the preexisting SIP, rather than as simply a “clarification” of it. Final SIP, 70 Fed. Reg. at
39,660. Accordingly, we have no reason to interpret the meaning of either CAA provision relied upon by SAFE but will instead allow EPA the first opportunity to apply those provisions, this time in accord with the understanding that the
preexisting SIP bans field burning while the proposed amendment clearly allows, and regulates, the practice.

This may be appealed. But for now, Idaho field burning may be out for the year, if not longer.

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