REGULATION NUMBER 9 OPEN BURNING, PRESCRIBED FIRE, AND PERMITTING

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DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

Air Quality Control Commission

REGULATION NUMBER 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.]

_________________________________________________________________________

Scope

This regulation applies to all open burning activity throughout the state.

II.

Definitions

The following definitions apply for the purposes of this Regulation Number 9.

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.

Air Curtain Destructor (ACD)

An open burning device that operates by forcefully projecting a curtain of air across an open

chamber or pit in which combustion occurs. Devices of this type can be constructed above or

below ground and with or without refractory walls and floor. (Air Curtain devices are not

conventional combustion devices with enclosed fireboxes and controlled air technology such as

mass burn, modular and fluidized bed combustors.) Also referred to as air curtain burners and air

curtain incinerators.

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.

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.

Class I Area and Mandatory Federal Class I Area

A class I area is an area listed in Regulation Number 3, Part B, Section V.A.

Code of Colorado Regulations

Secretary of State

State of Colorado

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roadcast burns do not include the burning of wildland fuels that

have been concentrated in piles by manual or mechanical methods.

Class I Area and Mandatory Federal Class I Area

A class I area is an area listed in Regulation Number 3, Part B, Section V.A.

Code of Colorado Regulations

Secretary of State

State of Colorado

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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 as, but not limited to, chromium copper

arsenate, pentachlorophenol, and creosote. Clean lumber that is dry may only be burned with an

ACD.

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.

General Open Burn

A planned fire below the prescribed fire de minimis emissions and smoke threshold pursuant to

Appendix A.

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.

Monitoring

Monitoring includes all methods to observe and record smoke from prescribed fire, including

tracking of smoke through visual observation.

Natural Wood

Natural wood is wood which was grown as a tree or shrub and which has not been treated.

Treated wood may include, but is not limited to: dimensional shaping, kiln drying, chemical drying,

painting, pressure treating, or any other modification to the wood beyond cutting.

Open Burning

Burning of rubbish, wastepaper, natural 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.

eated.

Treated wood may include, but is not limited to: dimensional shaping, kiln drying, chemical drying,

painting, pressure treating, or any other modification to the wood beyond cutting.

Open Burning

Burning of rubbish, wastepaper, natural 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.

Pile Burning

Burning of vegetative material that has been concentrated by manual or mechanical methods and

separated into piles.

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 in which the emissions and smoke levels have the potential

to exceed the de minimis threshold pursuant to Appendix A.

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.

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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.

Private Household Trash

Private household trash consists of paper and cardboard. Private household trash does not

include food waste, plastic, coated or treated wood, tires and/or rubber, appliances, aerosol/paint

cans, insulation or any other non-paper or non-cardboard items.

Prescribed Fire Plan, Wildland Fire Use Plan or Burn Plan

A plan that establishes parameters or conditions for conducting a prescribed fire.

Significant User of Prescribed Fire

A federal, state or local agency or significant management unit thereof or person that, within any

given calendar year:

bber, appliances, aerosol/paint

cans, insulation or any other non-paper or non-cardboard items.

Prescribed Fire Plan, Wildland Fire Use Plan or Burn Plan

A plan that establishes parameters or conditions for conducting a prescribed fire.

Significant User of Prescribed Fire

A federal, state or local agency or significant management unit thereof or person that, within any

given calendar year:

Collectively manages or owns more than 10,000 acres of grassland and/or forest land

within the state of Colorado; and

Plans to use prescribed fire to broadcast burn and/or pile burn, where the prescribed fires

planned for a calendar year will generate more than ten tons of PM10. See Appendix B of

this regulation for information to estimate PM10 emissions from prescribed fires.

The adoption of a fire management plan by a local or county unit of government pursuant

to Section 30-11-124, C.R.S., does not constitute management for purposes of this

regulation unless the county or local unit of government owns or manages more than ten

thousand acres (10,000) and is a significant user of prescribed fire.

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.

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, ,

recreational areas, and other locations that may be sensitive to smoke impacts for health, and/or

aesthetic reasons.

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

, urban and rural population centers, schools, hospitals, nursing homes, ,

recreational areas, and other locations that may be sensitive to smoke impacts for health, and/or

aesthetic reasons.

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.

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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.

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.

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.

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.

cover.

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.

AA.

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.

BB.

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

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, natural 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.

The following activities are exempt from the requirement to obtain an open burning permit:

Noncommercial burning of private household trash in particulate matter (PM10)

attainment areas unless local ordinances or rules prohibit such burning.

Fires used for noncommercial cooking of food for human consumption or recreational

purposes;

Fires used for instructional or training purposes, except instructional or training wildland

pile or broadcast fires larger than the de minimis thresholds of a low-smoke impact burn

pursuant to Appendix A of Regulation Number 9;

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Fires used for noncommercial cooking of food for human consumption or recreational

purposes;

Fires used for instructional or training purposes, except instructional or training wildland

pile or broadcast fires larger than the de minimis thresholds of a low-smoke impact burn

pursuant to Appendix A of Regulation Number 9;

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Training or instructional fires must comply with all applicable federal, state and

local laws, including the demolition notification requirements in Regulation

Number 8, Part B, Section III.E.1 for intentional structural fires.

Safety flares used to signal danger to the public;

Agricultural open burning

The open burning of animal parts or carcasses is not included in this exemption. Except

that, if the State Agricultural Commission declares a public health emergency or a

contagious or infectious disease outbreak that imperils the livestock of the state that

requires the burning of diseased animal carcasses on weekends or holidays, the owner

or operator may conduct open burning of the diseased carcasses after providing

telephone notice to the Division and the relevant local health department office by leaving

a voicemail message. All necessary safeguards shall be utilized during such non-

permitted open burning to minimize any public health or welfare impacts. In addition, the

owner or operator shall take steps to ensure that all surrounding and potentially impacted

residents, businesses, schools, and churches are notified prior to beginning the open

burn; and

ocal health department office by leaving

a voicemail message. All necessary safeguards shall be utilized during such non-

permitted open burning to minimize any public health or welfare impacts. In addition, the

owner or operator shall take steps to ensure that all surrounding and potentially impacted

residents, businesses, schools, and churches are notified prior to beginning the open

burn; and

Noncommercial burning of trash in the unincorporated areas of counties of less than

25,000 population according to the latest federal census provided such open burning is

subject to regulations of the Board of County Commissioners for such county adopted by

resolution and such regulations include, among other things, permit provisions and

prohibit any such burning that would result in the exceedance of any National Ambient Air

Quality Standards applicable to that portion of the atmosphere to which the general public

has access.

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

General Open Burning Permit Applications

Any person seeking authority for open burning or to conduct prescribed fires below the de

minimis emissions and smoke threshold pursuant to Appendix A to this regulation may

apply for and obtain a general open burning permit subject to the conditions set forth in

this section. Significant users of prescribed fire may apply for and obtain a general open

burning permit if they also satisfy the requirements of Section VII of this regulation.

Persons seeking a general open burning permit must submit to the Division, or the

authorized local agency, an application on a Division-approved form. The application

must demonstrate that the open burn can and will be conducted in a manner that

minimizes the emissions from the burn and the impacts of the smoke on the health and

welfare of the public

uirements of Section VII of this regulation.

Persons seeking a general open burning permit must submit to the Division, or the

authorized local agency, an application on a Division-approved form. The application

must demonstrate that the open burn can and will be conducted in a manner that

minimizes the emissions from the burn and the impacts of the smoke on the health and

welfare of the public. For prescribed fires under the de minimis threshold, the application

must demonstrate the potential for smoke impacts is low as determined by the Division.

Rules Specific to General Open Burning Permits

Burning in barrels is prohibited; burning may only be conducted in open burn piles;

The maximum acreage for a broadcast burn is 10 acres or less of grass and 5 acres or

less of other vegetation;

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Only natural wood, leaves, dry prairie grass, slash and weeds may be burned, unless

approved by the Division or an authorized local agency as specified in the relevant

permit;

Prohibited items include, but are not limited to, clean lumber, pallets, tree stumps, tires,

chemicals, plastic, construction debris, and furniture;

All burns must have fire suppression ready at all times.

Open Burning Permit Criteria

The Division or authorized local agency shall consider the following factors in determining

whether, and upon what conditions, to issue a general open burning permit;

The location and proximity of the proposed burning to any building or other

structure;

Meteorological conditions on the day or days of such the proposed burning; and

Compliance by the applicant for the permit with applicable fire protection and

safety requirements of the local authority;

Whether there is any practical alternative method for the disposal of the material

to be burned;

The location and proximity of the proposed burning to any building or other

structure;

Meteorological conditions on the day or days of such the proposed burning; and

Compliance by the applicant for the permit with applicable fire protection and

safety requirements of the local authority;

Whether there is any practical alternative method for the disposal of the material

to be burned;

The potential contribution of the proposed burning to air pollution in the area;

whether the burning will be conducted using best smoke management

techniques so as to minimize emissions and the impacts from the smoke on the

health and welfare of the public; and

The smoke impact potential for prescribed fires pursuant to Appendix A of this

regulation.

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

The use of permitted air curtain destructors pursuant to Section IV.C.4 of this

regulation;

The use of clean auxiliary fuel;

Drying the material prior to ignition; and

Separation for alternative disposal of materials that produce higher levels of

emissions and smoke during the combustion process.

Any device defined as an incinerator under the Common Provisions is not subject to the

permitting requirements under open burning.

The Division shall consider the following in determining whether, and upon what

conditions, to issue an air curtain destructor (ACD) Permit.

Device shall burn only yard waste, wood waste, clean lumber, or any mixture

thereof generated as a result of projects to reduce the risk of wildfire;

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irements under open burning.

The Division shall consider the following in determining whether, and upon what

conditions, to issue an air curtain destructor (ACD) Permit.

Device shall burn only yard waste, wood waste, clean lumber, or any mixture

thereof generated as a result of projects to reduce the risk of wildfire;

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Whether there is any practical alternative disposal method for the proposed

burning;

Whether the applicant will conduct any particular burn in accordance with permit

conditions in the general open burning permit application pursuant to Section

IV.C. of this regulation;

ACD permit conditions may include, but are not limited to, the following:

Shall demonstrate within 60 days after beginning operation the device

meets the following emission limits:

(A)

Opacity limit is 10 percent, averaged over 6 minutes, except

during startup and malfunctions;

(B)

Opacity limit is 35 percent, averaged over 6 minutes; during

startup period within first 30 minutes of operation;

(C)

No more than one startup period per day, not to exceed 30

minutes;

(D)

These limits apply at all times except during malfunctions;

(E)

Malfunctions shall not exceed a total of one hour per day; and

(F)

Excess emissions during malfunctions shall be reported in

accordance with Common Provisions Regulation, Section II.E.

ii.

Shall not be co-located with another ACD or any other facility that is

required to have an air quality permit or any commercial or industrial

facility;

iii.

Shall be erected and operated in accordance with the manufacturer's

recommendation;

total of one hour per day; and

(F)

Excess emissions during malfunctions shall be reported in

accordance with Common Provisions Regulation, Section II.E.

ii.

Shall not be co-located with another ACD or any other facility that is

required to have an air quality permit or any commercial or industrial

facility;

iii.

Shall be erected and operated in accordance with the manufacturer's

recommendation;

iv.

Shall meet the following if a trench device:

(A)

Trench dimensions must follow manufacturer's

recommendations;

(B)

Trenches must be maintained with a rectangular opening and

vertical sidewalls;

(C)

Bottom of trench must be above water table and not collect

groundwater seepage;

(D)

Trench must be protected from surface runoff by a berm or other

barrier; and

(E)

Trench cannot be in land filled material containing any solid

waste, including construction and demolition debris.

Shall not exceed the manufacturer's recommended throughput or 20 tons

per hour, whichever is less;

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vi.

Shall be operated during daylight hours and not to exceed 13 hours per

day;

vii.

Shall emit less than 100 tons of any criteria pollutant per calendar year;

viii.

Shall ensure the fire is extinguished prior to departure from the project

site or a fire watch patrol will remain behind to ensure there is no risk of

escape or nighttime smoke production. An extinguished fire shall

produce no visible smoke;

ix.

Shall be setback from occupied structure on other property, and from

perimeter of restricted public access shall be:

(A)

Minimum 300 ft., for any location where an ACD is operated 14

days or more per year; or

(B)

Minimum 150 ft., for any location where an ACD is operated for

less than 14 days per year.

Shall meet Division's reporting and record keeping requirements; and

xi.

Shall notify the public in smoke-sensitive areas regarding the location,

expected duration and projected smoke impacts from the operation.

Minimum 300 ft., for any location where an ACD is operated 14

days or more per year; or

(B)

Minimum 150 ft., for any location where an ACD is operated for

less than 14 days per year.

Shall meet Division's reporting and record keeping requirements; and

xi.

Shall notify the public in smoke-sensitive areas regarding the location,

expected duration and projected smoke impacts from the operation.

General Open Burning Permit Conditions

General open burning permits will include, but not be limited to, the following conditions, as

appropriate:

Air pollution emergencies and alerts

General open burning permits are not valid during periods of publicly announced air

pollution emergencies or alerts in the area of the proposed burn. Open burning during

such periods may be conducted only with direct written permission from the authority that

granted the permit.

Smoke management

In order to minimize emissions and smoke impacts, each permittee shall use the best

smoke management techniques appropriate to the proposed burn. The permit may allow

the use of auxiliary fuels as reasonably necessary to induce proper ignition.

To the degree practical, all burning shall be conducted during periods conducive to

smoke dispersal.

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

Wind speed

The authority granting the permit may impose conditions on wind speed at the time of the

burn to minimize smoke impacts on smoke-sensitive areas.

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ical, all burning shall be conducted during periods conducive to

smoke dispersal.

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

Wind speed

The authority granting the permit may impose conditions on wind speed at the time of the

burn to minimize smoke impacts on smoke-sensitive areas.

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Wind direction

The authority granting the permit may impose conditions on wind direction at the time of

the burn to minimize smoke impacts on smoke-sensitive areas.

Burn supervision

Open burns must be supervised by a responsible person who must have available the

means to suppress the burn if the fire does not comply with the terms and conditions of

the permit. Precautions shall be taken to ensure that the burning is restricted to the items

and location identified in the permit.

Inspection

All open burning operations shall be subject to inspection by the Division and/or the local

agency. 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.

The permit shall state that the permit is for compliance with state air pollution control

requirements only and is not a permit to violate any existing local laws, rules, regulations,

or ordinances regarding fire, zoning, or building. The permittee will notify the appropriate

local agencies as required by local regulations and/or ordinances. Permittees also shall

ensure that their actions comply with all procedural and substantive requirements

contained in state and local air pollution control regulations.

10.

The permit is valid only for the date or period specified in the permit.

11.

The Division or local agency may include in the permit other conditions necessary to

protect public health and welfare from emissions and smoke impacts.

ittees also shall

ensure that their actions comply with all procedural and substantive requirements

contained in state and local air pollution control regulations.

10.

The permit is valid only for the date or period specified in the permit.

11.

The Division or local agency may include in the permit other conditions necessary to

protect public health and welfare from emissions and smoke impacts.

12.

Revocation of permit

If at any time the Division or the local agency 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 or 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

Division or local agency may take any other enforcement action authorized under state or

local law.

Planned Ignition Fire Permits

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.

Any person seeking authority to conduct a prescribed fire for which the emissions and smoke

levels have the potential to exceed the de minimis 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.

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Any person seeking authority to conduct a prescribed fire for which the emissions and smoke

levels have the potential to exceed the de minimis 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.

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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.

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:

Whether all conditions required for general open burning permit applications pursuant to

Section IV of this regulation has been met;

Whether the applicant evaluated the use of non-burning fuel treatments in place of the

proposed burn;

The location of the proposed burn and smoke-sensitive areas and class I areas that

might be impacted by the smoke and emissions from the burn;

The meteorological conditions under which the applicant proposes to conduct the burn

and the measures that the applicant will take to ensure that the burn will be conducted

only during those identified meteorological conditions, including coordination with

appropriate sources of meteorological information on the day preceding ignition;

The smoke risk rating for the proposed burn;

The smoke mitigation techniques proposed;

der which the applicant proposes to conduct the burn

and the measures that the applicant will take to ensure that the burn will be conducted

only during those identified meteorological conditions, including coordination with

appropriate sources of meteorological information on the day preceding ignition;

The smoke risk rating for the proposed burn;

The smoke mitigation techniques proposed;

Whether the applicant has demonstrated that the applicant will protect scenic and/or

important vistas and visibility in class I areas, will minimize the impacts of emissions and

smoke on the public, and will minimize the potential for a violation of any ambient air

quality standards.

Whether the applicant will conduct the burn in accordance with a smoke management

plan or narrative that requires:

That best smoke management methods will be used to minimize or eliminate

smoke impacts at smoke-sensitive receptors;

That the burn will be scheduled outside times of significant visitor use in smoke-

sensitive receptor areas that may be impacted by smoke and emissions from the

fire;

A monitoring plan to allow appropriate evaluation of smoke impacts at smoke-

sensitive receptors;

That smoke management contingency measures will be taken if unacceptable

smoke impacts occur at smoke-sensitive receptors; and

That measures will be taken to notify the public in smoke-sensitive areas at least

twenty-four hours in advance of the planned ignition of the fire regarding the

location, expected duration and projected smoke impacts from the fire.

Whether the applicant has demonstrated that the proposed burn will conform to all

requirements of the state implementation plan; and

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ublic in smoke-sensitive areas at least

twenty-four hours in advance of the planned ignition of the fire regarding the

location, expected duration and projected smoke impacts from the fire.

Whether the applicant has demonstrated that the proposed burn will conform to all

requirements of the state implementation plan; and

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10.

Whether the actual burn activity that occurs will be reported to the Division or authorized

local agency on forms approved by the Division.

Planned Ignition Fire Permit Conditions

Planned ignition fire permits shall include, but not be limited to, the following conditions, as

appropriate:

All conditions required for issuance of a general open burning permit pursuant to Section

IV of this regulation and all conditions necessary to meet the requirements of this Section

All permit conditions necessary to ensure that the burn will be conducted so as to

minimize the impacts of the fire on visibility and on public health and welfare.

The Division or authorized local agency may allow the applicant to conduct a test fire to

evaluate dispersal conditions.

Public Comment

The Division will evaluate fires proposed in permit applications to determine whether the

fire will pose a high smoke risk. The evaluation will include consideration of the size of

the fire area, the type and density of fuel, whether or not the fire is a pile burn, expected

duration, and the proximity of the fire to smoke sensitive receptors, such as communities

and class I areas.

If the Division determines that the fire poses a high smoke risk, the Division will provide

appropriate notice to the public, such as by making the information available through the

internet and by email, and will issue a draft permit for public comment

the fire is a pile burn, expected

duration, and the proximity of the fire to smoke sensitive receptors, such as communities

and class I areas.

If the Division determines that the fire poses a high smoke risk, the Division will provide

appropriate notice to the public, such as by making the information available through the

internet and by email, and will issue a draft permit for public comment. The notice will

include information about location of the fire, expected burn dates, expected duration,

potential emissions, potential air quality and visibility impacts at smoke sensitive

receptors and the opportunity for public comment. The procedures in the Commission's

Procedural Rules apply to any draft permit subject to the public comment provisions of

this paragraph. If the Division receives public comment, it will consider those comments

in determining whether to issue a permit and what conditions to impose upon the

permittee and within thirty days of the close of the comment period or within thirty days

following the close of any public comment hearing, whichever is later, shall either grant or

deny the permit.

Draft permits for high smoke risk burns that have been subject to the public notice

provisions of paragraph V.F.2 and for which a permit has been issued, but which have

not been completed within the period for which the permit is valid are not subject to the

public comment provisions of paragraph V.F.2. This exception to the public comment

requirements applies only: for the geographical unit for which a permit that has been

subject to the public comment provisions was issued; if less than ten percent of the area

originally permitted has been burned; and for a maximum of five years from the date of

issuance of the original permit. The Division may amend the permit, based on a case-by-

case analysis, to accommodate minor changes in the permit area without triggering the

public comment provisions of paragraph V.F.2.

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ercent of the area

originally permitted has been burned; and for a maximum of five years from the date of

issuance of the original permit. The Division may amend the permit, based on a case-by-

case analysis, to accommodate minor changes in the permit area without triggering the

public comment provisions of paragraph V.F.2.

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VI.

Unplanned Ignition Fire Permits

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.

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.

The Division shall consider the following factors in determining whether to grant an unplanned

ignition fire permit:

Whether the applicant evaluated the use of non-burning fuel treatments in place of

allowing unplanned ignition fires to continue burning;

The location of the proposed burns and smoke-sensitive areas and class I areas that

might be impacted by the smoke and emissions from the burns;

The smoke risk rating for proposed burns;

determining whether to grant an unplanned

ignition fire permit:

Whether the applicant evaluated the use of non-burning fuel treatments in place of

allowing unplanned ignition fires to continue burning;

The location of the proposed burns and smoke-sensitive areas and class I areas that

might be impacted by the smoke and emissions from the burns;

The smoke risk rating for proposed burns;

The sources of meteorological information that the applicant will use to evaluate potential

visibility and smoke and emission impacts from each fire;

The meteorological conditions under which the applicant proposes to allow unplanned

ignition fires to continue burning without suppression efforts and the suppression

measures that the applicant will take if weather at the time of the burn does not meet

those identified meteorological conditions;

Whether the application demonstrates that the Division will be notified by telephone or by

another Division-approved method as soon as possible, but no later than two hours after

the start of the next working day, and daily thereafter, of the occurrence of an unplanned

ignition fire greater than five acres in size that the applicant intends to use for grassland

or forest land management;

Whether the application demonstrates that the applicant will evaluate the fire conditions

daily to determine whether the fire meets the terms of the permit, including an evaluation

based on appropriate information to ensure that ambient air quality standards are not

being violated nor visibility goals exceeded;

Whether the applicant will conduct the burn in accordance with a smoke management

plan or narrative that requires:

A monitoring plan, including visual observation, to allow appropriate evaluation of

smoke impacts at smoke-sensitive receptors;

That suppression activities will be taken if unacceptable smoke impacts occur at

smoke-sensitive receptors;

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uct the burn in accordance with a smoke management

plan or narrative that requires:

A monitoring plan, including visual observation, to allow appropriate evaluation of

smoke impacts at smoke-sensitive receptors;

That suppression activities will be taken if unacceptable smoke impacts occur at

smoke-sensitive receptors;

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That measures will be taken to notify the public, within twenty-four hours of

discovery of the unplanned ignition, that the applicant intends to use the fire for

grassland or forest land management and of the location and expected smoke

impacts from the fire; and

Whether the actual burn activity that occurs will be reported to the Division on forms

approved by the Division.

Unplanned Ignition Fire Permit Conditions

Each unplanned ignition fire permit shall contain, but not be limited to, the following conditions, as

appropriate:

All permit conditions necessary to ensure that the burn will be conducted so as to

minimize the impacts of the fire on visibility and on public health and welfare and all

conditions necessary to meet the requirements of this Section VI;

The applicant must promptly initiate suppression action if the fire fails to comply with the

permit terms or other activities to ensure that the fire remains within the terms of the

permit;

The applicant must evaluate the fire with appropriate resources to determine whether the

fire remains within the permit terms. Appropriate evaluations may include daily monitoring

and appropriate modeling to determine whether the fire will minimize the potential for a

violation of any ambient air quality standard or otherwise cause unacceptable impacts to

human health or welfare, visibility or the environment.

Public Comment

The Division will evaluate fires proposed in permit applications to determine whether the

fire will pose a high smoke risk

clude daily monitoring

and appropriate modeling to determine whether the fire will minimize the potential for a

violation of any ambient air quality standard or otherwise cause unacceptable impacts to

human health or welfare, visibility or the environment.

Public Comment

The Division will evaluate fires proposed in permit applications to determine whether the

fire will pose a high smoke risk. The evaluation will include consideration of size of the

fire area, the type and density of fuel, and the proximity of the fire to smoke sensitive

receptors, such as communities and class I areas.

If the Division determines that the fire poses a high smoke risk, the Division will provide

appropriate notice to the public, such as by making the information available through the

internet and by email, and will issue a draft permit for public comment. The notice will

include information about location of the fire, expected range of time when a burn may

occur and potential air quality and visibility impacts at smoke sensitive receptors. The

procedures in the Commission's Procedural Rules apply to any draft permit subject to the

public comment provisions of this paragraph. If the Division receives public comment, it

will consider those comments in determining whether to issue a permit and what

conditions to impose upon the permittee and within thirty days of the close of the

comment period or within thirty days following the close of any public comment hearing

shall either grant or deny the permit.

VII.

Additional Requirements for Significant Users of Prescribed Fire

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.

lies 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.

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Planning Documents.

Significant users of prescribed fire as a grassland or forest management tool shall submit

plan’s addressing the use and role of prescribed fire and the air quality impacts resulting

there from.

Planning documents shall:

Specify the area to which they apply, which should be relevant to as large an

organizational unit of land as is administratively reasonable;

Specify the time period to which they apply;

Be relevant to vegetative, habitat, and/or fuel management of grassland and/or

forest land; and

Explain the decision process and criteria considered or applied to show:

How the significant user of prescribed fire identifies fuel treatment

alternatives to achieve the fuel, habitat, and/or vegetative land

management goals;

ii.

How the significant user of prescribed fire selects among fuel treatment

alternatives;

Include a discussion of the alternatives to prescribed fire considered and a

discussion of how prescribed fire, if selected, minimizes the risk of wildfire; and

Demonstrate, for land selected for fuel treatment, how the significant user of

prescribed fire considered the state standard set forth in Section VII.C and how

the user will achieve compliance with that standard.

Planning documents may summarize the elements of other larger and more general

documents.

Addition of land subject to planning document review

nimizes the risk of wildfire; and

Demonstrate, for land selected for fuel treatment, how the significant user of

prescribed fire considered the state standard set forth in Section VII.C and how

the user will achieve compliance with that standard.

Planning documents may summarize the elements of other larger and more general

documents.

Addition of land subject to planning document review

Significant users of prescribed fire that acquire ownership or jurisdiction over

lands after a planning document is submitted shall identify the new land areas to

the Division and describe how the new lands will be managed in relation to the

requirements of this Section VII.

New lands that will be managed in the same manner as current lands in the

organizational unit described in the planning document will be subject to the

same restrictions on permit issuance and conditions as lands already included

within the planning document. New lands that will be managed differently than

lands already included within the planning document must be addressed in a

separate or subsequent planning document submitted to the Commission.

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Change in Ownership

If a change in majority ownership or agency jurisdiction over lands occur that are

subject to this Section VII. and that have an approved planning document, the

new owner(s) or authorized agency representative shall, in writing to the Division,

identify the new owner(s) or agency and describe whether the new owner(s) or

agency will manage the lands as per the approved planning document in relation

to the requirements of this Section VII.

If the land will be managed in the same manner as under the previous owner(s)

or management agency as described in the approved planning document, written

notice to the Division is sufficient

ivision,

identify the new owner(s) or agency and describe whether the new owner(s) or

agency will manage the lands as per the approved planning document in relation

to the requirements of this Section VII.

If the land will be managed in the same manner as under the previous owner(s)

or management agency as described in the approved planning document, written

notice to the Division is sufficient. If the land will not be managed per the

approved planning document, as determined by the new owner/manager or the

Division, the new owner or agency manager must address the requirements of

this Section VII in a separate or subsequent planning document submitted to the

Commission.

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.

Planning Document Review Process

Significant users of prescribed fire shall submit to the Commission planning documents

for each area in which the user intends to use prescribed fire for grassland or forest land

management.

The Division shall review the planning documents submitted to the Commission and shall

present its comments and recommendations to the Commission.

The Commission shall hold a public hearing to review each planning document. The

Commission shall hold the hearing and complete its review of the planning document

within forty-five calendar days of receipt of the document unless the significant user of

prescribed fire agrees to a longer review period

mitted to the Commission and shall

present its comments and recommendations to the Commission.

The Commission shall hold a public hearing to review each planning document. The

Commission shall hold the hearing and complete its review of the planning document

within forty-five calendar days of receipt of the document unless the significant user of

prescribed fire agrees to a longer review period. Only one hearing shall be held for each

planning document during the time it is considered applicable unless an additional

hearing is requested by the significant user of prescribed fire for an updated or amended

planning document.

Following the hearing and consideration of the comments and recommendations of the

Division and any other information received relative to the planning document, the

Commission shall comment and make recommendations to the significant user regarding

any changes to the planning document relating to the discharge or release of air

pollutants that the Commission finds necessary to comply with the state standard

identified in Section VII.C.

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Open Burning Permits for Significant Users of Prescribed Fire

The Division shall not issue any type of open burning permit to a significant user of

prescribed fire or entities acting on its behalf after July 1, 2002, unless a planning

document for the area to be burned has been submitted to the Commission for review,

public hearing, and comment in accordance with Section VII.D.

The Division shall not issue a permit for open burning to a significant user of prescribed

fire or entities acting on its behalf after July 1, 2002, unless the permit is consistent with

the comments and recommendations made by the Commission concerning the user's

planning document pursuant to Section VII.D.

e Commission for review,

public hearing, and comment in accordance with Section VII.D.

The Division shall not issue a permit for open burning to a significant user of prescribed

fire or entities acting on its behalf after July 1, 2002, unless the permit is consistent with

the comments and recommendations made by the Commission concerning the user's

planning document pursuant to Section VII.D.

Permit conditions imposed pursuant to this subsection may be excluded from the

permit if a federal land manager asserts that the condition is specifically

prohibited by federal statute and the Division determines that the assertion is

correct.

The Division shall report all such exclusions to the Commission, the Governor

and the Director of the Legislative Council within 30 days after the Division grants

the exclusion.

The Division may grant a permit regardless of the prohibition of this subsection if it

determines that issuance of the permit is necessary to protect public health and safety.

For the purposes of this Subsection VII.E, a permit for open burning includes permits for

general open burning, planned ignition fires and unplanned ignition fires and related

suppression activities, but does not include wildfire or suppression activities associated

with wildfire.

The Division shall not issue a prescribed fire permit to a significant user of prescribed fire

for areas with outdated planning documents. For the purposes of this subsection,

planning documents shall be considered outdated upon expiration of the time period for

which the document is applicable as stated in the document, but in no event longer than

10 years after submission of the planning document to the Commission.

VIII.

Fees for Open Burning and Prescribed Fire

Fees for General Open Burning Permittees

The Division shall charge no fees under this regulation to general open burning permit applicants

or permit holders.

Planning Document Evaluation Fees for Significant Users of Prescribed Fire

the document, but in no event longer than

10 years after submission of the planning document to the Commission.

VIII.

Fees for Open Burning and Prescribed Fire

Fees for General Open Burning Permittees

The Division shall charge no fees under this regulation to general open burning permit applicants

or permit holders.

Planning Document Evaluation Fees for Significant Users of Prescribed Fire

Every significant user of prescribed fire submitting a planning document to the

Commission as required in Section VII of this regulation shall pay a fee for the direct and

indirect cost of evaluating such documents.

If the Division requires more than thirty hours to evaluate the planning documents, the fee

paid by the significant user of prescribed fire shall not exceed $3,000, unless the Division

has informed the significant user that the billing may exceed $3,000 and has provided the

significant user of prescribed fire with an estimate of what the actual charges may be

prior to commencing the work.

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The planning document review fee shall be calculated at the rate stated in C.R.S. Section

25-7-114.7(2)(a)(III).

The Division shall prepare and send a bill at least annually to each significant user of

prescribed fire if the Division has spent one or more hours reviewing planning documents

from the significant user of prescribed fire. The bill will specify the number of hours spent

and the total fee amount. All fees assessed must be received within 30 days of the date

of receipt of the written bill. All fees collected under this regulation shall be made payable

to the Colorado Department of Public Health and Environment.

Prescribed Fire Fees

The Division shall charge no flat fee to an applicant for a planned ignition fire permit who

applies to an authorized local agency for that permit

amount. All fees assessed must be received within 30 days of the date

of receipt of the written bill. All fees collected under this regulation shall be made payable

to the Colorado Department of Public Health and Environment.

Prescribed Fire Fees

The Division shall charge no flat fee to an applicant for a planned ignition fire permit who

applies to an authorized local agency for that permit. Permitting activity and actual

burning activity for such permits shall not be counted into SMP scores pursuant to this

regulation’s Appendix C, “Distribution of Cost” section.

Except as provided for in VIII.C.1. every permittee pursuant to Section V and VI of this

regulation shall pay fees as set forth in the following paragraphs to cover the cost of the

smoke management program.

Fees shall be charged to recover the direct and indirect costs incurred by the Division to

operate and administer the smoke management program. Such costs include, but are not

limited to: process permit applications; issue permits; compile emission inventory and

monitoring information; prepare generally applicable regulations or guidance; model,

analyze, and make demonstrations; conduct a compliance assistance and enforcement

program; track wildfire activity as needed; operate the fee program; and review plans.

The Division shall prepare and send a bill at least annually to each permittee specifying

each fee type and the total fee amount for the previous calendar year. All fees assessed

must be paid within 30 days of the date of receipt of the written bill. All fees collected

under this regulation shall be made payable to the Colorado Department of Public Health

and Environment.

Every permit applicant shall pay annual fees regardless of:

Whether a permit is issued, , suspended, withdrawn, or revoked; and

ii.

Whether actual burning activity occurred.

The fee will be calculated in accordance with the Program Cost and Distribution

Methodology contained in Appendix C of this regulation.

hall be made payable to the Colorado Department of Public Health

and Environment.

Every permit applicant shall pay annual fees regardless of:

Whether a permit is issued, , suspended, withdrawn, or revoked; and

ii.

Whether actual burning activity occurred.

The fee will be calculated in accordance with the Program Cost and Distribution

Methodology contained in Appendix C of this regulation.

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IX.

Statement of Basis, Specific Statutory Authority and Purpose

Adopted January 17, 2002

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 and implements parts of Sections 25-7-

106(7) and (8), 25-7-114.7 and 25-7-123, C.R.S.

Basis

These rule revisions implement the provisions of Senate Bill 01-214 and relocate, update and reorganize

existing provisions of Regulation Number 1 relating to open burning into Regulation Number 9. Regulation

Number 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

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

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.

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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

n 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

r 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

irty 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.

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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 use 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

ire 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 use 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

milar 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

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 Section 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.

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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.

Section7418, 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

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 Section25-7-106(7), C.R.S., pursuant to

Section118 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 Section118 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

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

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.

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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

ll 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 Section 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 Section 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 Section 25-7-110.5, C.R.S., and did not make specific determinations regarding the factors listed in

Section 25-7-110.8(1), C.R.S

etion under state law to adopt alternative rules that differ

significantly from these revisions, for the purposes of Section 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 Section 25-7-110.5, C.R.S., and did not make specific determinations regarding the factors listed in

Section 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.

Adopted December 19, 2002

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 Number9. Regulation Number 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.

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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.

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Purpose

When it adopted Regulation Number 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

$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.

Adopted February 19, 2004

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

-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.

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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.

Adopted February 19, 2004

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

ortions will be recalculated every three years to accommodate program participation changes

among large users.

Adopted February 19, 2004

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

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.

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Adopted February 19, 2004

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

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 Number 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.

ires 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.

Adopted March 12, 2004

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 prohibits anyone from operating an air pollution

source such as an air curtain destructor without first obtaining a permit.

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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 prohibits anyone from operating an air pollution

source such as an air curtain destructor without first obtaining a permit.

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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

itional 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

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.

Adopted December 15, 2005

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.

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ic 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.

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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 Number 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 Number 9.

Adopted December 14, 2006

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

ned unnoticed until

July 2005.

Accordingly, the Commission adopted corrections to Regulation Number 9.

Adopted December 14, 2006

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.

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mplement 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.

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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.

Adopted June 21, 2007

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

d 2008; with

billing of users based on the adopted percents to occur in 2007, 2008 and 2009, respectively.

Adopted June 21, 2007

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 Number 1 pursuant to C.R.S. Sections 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 Number 9.

The Division is authorized to delegate open burn regulation to local agencies under C.R.S. Section 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

mely 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.

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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

egarding 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

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.

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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.

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Adopted June 19, 2008

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 and Purpose

The Commission hereby establishes a process to administer planning documents for prescribed fire in the

event the ownership of the acreage in question changes. The Commission intends to ensure that new

landowners or managers are aware of the planning document that applies to their land and intend to

comply with the document.

Any new owner who qualifies as a significant user of prescribed fire and plans to use prescribed fire must

do so pursuant to an approved planning document. Significant users of prescribed fire include any public

or private entity that owns or manages 10,000 acres or more in Colorado and conducts enough wildland

prescribed fire burns such that they generate at least 10 tons of PM10 per year.

Significant users must submit a planning document that explains how decisions are made about fuel

treatment options and how the entity complies with applicable standards. The Commission reviews and

approves the planning document following a public hearing. The Division may not issue prescribed fire

permits to a significant user without an approved or valid planning document.

In the event of a change of ownership or management associated with acreage that is subject to a

planning document, the Division will seek a written commitment from the new owner or land manager to

comply with the document

proves the planning document following a public hearing. The Division may not issue prescribed fire

permits to a significant user without an approved or valid planning document.

In the event of a change of ownership or management associated with acreage that is subject to a

planning document, the Division will seek a written commitment from the new owner or land manager to

comply with the document. The Division will no longer issue permits until a written commitment is

received regarding the existing plan or the new owner or manager has submitted a new or amended

planning document that is approved by the Commission at a public hearing.

Specific Statutory Authority

C.R.S. Section 25-7-106(7) and (8) authorizes and directs the Commission to develop a program to

minimize impacts of actions by significant users of prescribed fire, including a requirement that significant

users submit planning documents to the Commission.

Adopted December 19, 2008

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 percentages used to distribute the fees for users of planned and

unplanned ignition prescribed fire permits utilizing the Division’s Smoke Management Program. This rule

revision also increases the cost of the smoke management program. Regulation Number 9 anticipates

that the Commission will review and, as necessary, change the fee charged for the program. Finally,

numerous format edits of Regulation Number 9 are adopted to achieve more consistency between

Commission regulations.

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This rule

revision also increases the cost of the smoke management program. Regulation Number 9 anticipates

that the Commission will review and, as necessary, change the fee charged for the program. Finally,

numerous format edits of Regulation Number 9 are adopted to achieve more consistency between

Commission regulations.

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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 overall smoke

management 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. 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