[Update: On Jan 3, 2012, Alaska DEC filed in court against the Straughns for nuisance smoke from their two outdoor wood boilers located across the street from Woodriver Elementary. Follow Case 4FA-13-01205CI on CourtView.]
Borough residents have reported over 500 public smoke pollution complaints since 2008. Yet, there is no record that any agency has ever verified a violation, prosecuted an emitter, or issued a fine for smoke pollution in the FNSB. In 2011, the Alaska Department of Environmental Conservation ordered two local emitters to abate smoke nuisances but has been unable to find a violation of either order. DEC can prosecute violations of AS 46.03, AS 46.14, regulations, and orders but has no statutory authority to write tickets for air pollution.
These are the only nuisance abatement orders ever issued in the Fairbanks area:
Woodriver Elementary School [public record]
DEC Nuisance Abatement Order [enforceable] March 10, 2011 for 58 Trinidad Dr & 5055 Palo Verde Ave, Fairbanks [97KB]
DEC Compliance Letter [unenforceable] April 13, 2009 for 58 Trinidad Dr & 5055 Palo Verde Ave, Fairbanks [47KB]
Steese Highway and Farmer’s Loop [public record]
DEC Nuisance Abatement Order [enforceable] Jan. 26, 2011 for 150 Farmer’s Loop Extension, Fairbanks [42KB]
Following are links to laws, regulations, codes, and policies that could help reduce smoke pollution in Fairbanks and North Pole, Alaska. Emphasis added.
Clean Air Act, as amended 1990
Particulate Matter Standards, Federal standards for PM 2.5 [adopted into state regulation 18 AAC 50.010(B)]
PM 2.5 NAAQS Implementation
EPA PM 2.5 Nonattainment Designation Dec. 2009 for Fairbanks Area
Alaska Governor’s recommendation for designation, Dec. 2007 and supplemental information
Federal Register notice of Fairbanks area PM 2.5 nonattainment designation, effective Dec. 14, 2009, Table 1, p 58696
Federal Register notice of Revisions to Ambient Air Monitoring Regulations, effective December 18, 2006
Network Design Criteria for Ambient Air Quality Monitoring – 40 CFR 58, Appendix D to Part 58 4.7.1(b)(1): “At least one monitoring station is to be sited in a population-oriented area of expected maximum concentration.”
Dec 14, 2012 – State Implementation Plan due
Dec 14, 2014 – PM 2.5 attainment deadline
Dec 14, 2019 – final deadline (after all possible extensions)
State regulation 18 AAC 50.110. Air pollution prohibited:
No person may permit any emission which is injurious to human health or welfare, animal or plant life, or property, or which would unreasonably interfere with the enjoyment of life or property. Eff. 5/26/72
State regulation 18 AAC 50.045. Prohibitions:
(b) A person who owns or operates a stationary source that emits an air pollutant subject to this chapter shall ensure that the stationary source complies with this chapter and any other applicable local, state, or federal law.
(c) A person may not construct, operate, or modify a stationary source that will result in a violation of the applicable emission standards or that will interfere with the attainment or maintenance of ambient air quality standards.
State regulation 18 AAC 50.075. Wood-fired heating device visible emission standards:
(a) A person may not operate a wood-fired heating device in a manner that causes
(1) black smoke; or
(2) visible emissions that exceed 50 percent opacity for more than 15 minutes in any one hour in an area which an air quality advisory is in effect under 18 AAC 50.245.
Visible emissions of exhaust gases from wood-fired heating devices shall be observed at the point of release to the ambient air regardless of the presence of condensed water vapor. All other conditions specified in Method 9 of Appendix A to 40 CFR 60 shall apply.
State regulation 18 AAC 50.055. Industrial processes and fuel-burning equipment:
(a) Visible emissions, excluding condensed water vapor, from an industrial process or fuel-burning equipment may not reduce visibility through the exhaust effluent by
(1) more than 20 percent averaged over any six consecutive minutes, except as provided in (2) – (9) of this subsection; [applies to waste oil burner]
(9) more than 20 percent for more than three minutes in any one hour for a coal burning boiler…. [Allows three more minutes if coal boiler has DEC operating permit, began operation before August 17, 1971, etc.]
State regulation 18 AAC 50.065. Open burning:
(a) General Requirements. Except when conducting open burning under (g), (h), or (i) of this section, a person conducting open burning shall comply with the limitations of (b) – (f) of this section and shall ensure that
(1) the material is kept as dry as possible through the use of a cover or dry storage;
(2) before igniting the burn, noncombustibles are separated to the greatest extent practicable;
(3) natural or artificially induced draft is present;
(4) to the greatest extent practicable, combustibles are separated from grass or peat layer; and
(5) combustibles are not allowed to smolder.
(b) Black Smoke Prohibited. Except for firefighter training conducted under (h) or (i) of this section, open burning of asphalts, rubber products, plastics, tars, oils, oily wastes, contaminated oil cleanup materials, or other materials in a way that gives off black smoke is prohibited without written department approval. …
(2) the person who conducts open burning shall establish reasonable procedures to minimize adverse environmental effects and limit the amount of smoke generated; and
(c) Toxic and Acid Gases and Particulate Matter Prohibited. Open burning or incineration of pesticides, halogenated organic compounds, cyanic compounds, or polyurethane products in a way that gives off toxic or acidic gases or particulate matter is prohibited.
d) Adverse Effects Prohibited. Open burning of putrescible garbage, animal carcasses, or petroleum-based materials, including materials contaminated with petroleum or petroleum derivatives, is prohibited if it causes odor or black smoke that has an adverse effect on nearby persons or property.
(e) Air Quality Advisory. Open burning is prohibited in an area if the department declares an air quality advisory under 18 AAC 50.245, stating that burning is not permitted in that area for that day. This advisory will be based on a determination that there is or is likely to be inadequate air ventilation to maintain the standards set by 18 AAC 50.010. The department will make reasonable efforts to ensure that the advisory is broadcast on local radio or television.
(f) Wood Smoke Control Areas. Open burning is prohibited between November 1 and March 31 in a wood smoke control area identified in 18 AAC 50.025(b). [Mendenhall Valley area of Juneau is only area so designated.]
State law AS 09.10.070 Actions for torts, for injury to personal property, for certain statutory liabilities, and against peace officers and coroners to be brought in two years.
(a) Except as otherwise provided by law, a person may not bring an action (1) for libel, slander, assault, battery, seduction, or false imprisonment, (2) for personal injury or death, or injury to the rights of another not arising on contract and not specifically provided otherwise; (3) for taking, detaining, or injuring personal property, including an action for its specific recovery; (4) upon a statute for a forfeiture or penalty to the state; or (5) upon a liability created by statute, other than a penalty or forfeiture; unless the action is commenced within two years of the accrual of the cause of action.
State law AS 44.62.250. Emergency regulations.
A regulation or order of repeal may be adopted as an emergency regulation or order of repeal if a state agency makes a written finding, including a statement of the facts that constitute the emergency, that the adoption of the regulation or order of repeal is necessary for the immediate preservation of the public peace, health, safety, or general welfare. The requirements of AS 44.62.040(c), 44.62.060, and 44.62.190 – 44.62.215 do not apply to the initial adoption of emergency regulations; however, upon adoption of an emergency regulation the adopting agency shall immediately submit a copy of it to the lieutenant governor for filing and for publication in the Alaska Administrative Register, and within five days after filing by the lieutenant governor the agency shall give notice of the adoption in accordance with AS 44.62.190(a). Failure to give the required notice by the end of the 10th day automatically repeals the regulation.
State law AS 46.03.710. Pollution Prohibited:
A person may not pollute or add to the pollution of the air, land, subsurface land, or water of the state.
State law AS 46.03.790. Criminal penalties:
(a) Except as provided in (d) of this section, a person is guilty of a class A misdemeanor if the person with criminal negligence
(1) violates a provision of this chapter, AS 46.04, AS 46.09, or AS 46.14, a regulation or order of the department, or a permit, approval, or acceptance, or a term or condition of a permit, approval, or acceptance issued under this chapter, AS 46.04, AS 46.09, or AS 46.14;
(c) Each day on which a violation described in this section occurs is considered a separate violation.
State law AS 12.55.035. Fines:
(a) Upon conviction of an offense, a defendant may be sentenced to pay a fine as authorized in this section or as otherwise authorized by law.
(b) Upon conviction of an offense, a defendant who is not an organization may be sentenced to pay, unless otherwise specified in the provision of law defining the offense, a fine of no more than
(5) $10,000 for a class A misdemeanor;
State law AS 46.03.810. Air and land nuisances:
(a) A person is guilty of creating or maintaining a nuisance if the person
(1) places or deposits upon a lot, street, beach, or premises, or upon or anywhere within 200 feet of a public highway, any garbage, offal, dead animals, or any other matter or thing that would be obnoxious or cause the spread of disease or in any way endanger the health of the community;
(2) allows to be placed or deposited upon any premises owned by the person or under the person’s control garbage, offal, dead animals, or any other matter or thing that would be obnoxious or offensive to the public or that would produce, aggravate, or cause the spread of disease or in any way endanger the health of the community.
(b) A person who neglects or refuses to abate the nuisance upon order of an officer of the Department of Environmental Conservation is guilty of a misdemeanor and is punishable as provided in AS 46.03.790. In addition to this punishment, the court shall assess damages against the defendant for the expenses of abating the nuisance.
State law AS 46.03.820. Emergency powers:
(a) When the department finds, after investigation, that a person is causing, engaging in, or maintaining a condition or activity that, in the judgment of its commissioner presents an imminent or present danger to the health or welfare of the people of the state or would result in or be likely to result in irreversible or irreparable damage to the natural resources or environment, and it appears to be prejudicial to the interests of the people of the state to delay action until an opportunity for a hearing can be provided, the department may, without prior hearing, order that person by notice to discontinue, abate, or alleviate the condition or activity. The proscribed condition or activity shall be immediately discontinued, abated, or alleviated.
State law AS 46.14.410. Inadequacy of local program:
(a) If a municipality or a local air quality district has an approved local air quality control program under AS 46.14.400 and the department determines that the program is being implemented in a manner that fails to meet the terms of the cooperative agreement or is otherwise being inappropriately administered, the department shall give written notice setting out its determination to the municipality or local air quality district. Within 45 days after giving written notice, the department shall conduct a public hearing on the matter. The hearing shall be recorded by any means that ensures an accurate record.
Cooperative Agreement, ADEC and FNSB MOU for Air Pollution Control, Jan. 22, 2010:
IV. Area Source Control Programs
The Borough and DEC recognize that many small stationary pollution emission sources have the potential to collectively impact air quality. These small sources are categorized as area sources by EPA and DEC and may be regulated by local, state, or federal rules, but are not typically permitted by the DEC Air Permit program. They include, but are not limited to, the following types of sources: solid fuel-fired heating devices, commercial and residential space heating, small sources that fall below permitting thresholds, and fugitive dust sources. The Borough will take the lead in developing and implementing local control programs to address pollution from area sources…. [page 2]
V. Complaint Response
As indicated above [see image in MOU], both DEC and the Borough will be responsible for assessing whether or not an air quality complaint received by the respective agency is a violation of either Borough or State regulations. Once it is determined whether or not either, or both, State or Borough regulations are being violated, or have been violated, the appropriate agency will take the lead role in enforcement action.
VII. Air Quality Planning
The Borough will:
Implement PM 2.5 strategies to attain the standard that are shown to be reasonable and cost effective;
Take the lead in collaboratively developing with DEC a PM 2.5 attainment plan to bring Fairbanks into attainment with the national ambient air quality standard.
Prohibited acts and requirements of Chapter 8.21 repealed by Assembly vote following voter approval of Proposition 3 October 2, 2012.
Air Pollution Chapter 8.04, the entire open burning section, was repealed by Assembly vote 1/24/2013, citing Prop 3.
Borough Chapter 8.21.030 Voluntary replacement and repair program. [see full chapter]
Borough Powers Chapter 1.02:
1.02.040 Conferred areawide powers.
A. The borough by ordinance exercises the following powers on an areawide basis:
3. Provides air pollution control in accordance with AS 46.03, May 14, 1970.
1.02.060 Conferred nonareawide powers.
B. The borough may by ordinance exercise the following powers on a nonareawide basis:
4. Provide air pollution control in accordance with AS 46.03;
D. The commission shall review proposed revisions of regulations or other criteria related to the air quality program and make recommendations to the administration. The commission shall hold public hearings for the purpose of receiving testimony.
E. On request of the borough mayor, the commission may fully investigate nuisances, health hazards and other harmful effects related to or caused by air pollution.
F. The commission shall develop comprehensive plans for the prevention, abatement, and control of air pollution in the borough. Such plans may include recommendations on subjects including, but not limited to, transportation control measures, zoning, taxation, research, and public relations.
G. The commission shall act as a hearing board on appeals on matters relating to the air quality program.
Borough Chapter 2.52.010 Pollution control officer [see Ordinance Footnote, below]:
The director of the department of environmental services, or such other person as the mayor shall designate, shall perform the duties of the pollution control officer. The officer shall be directly responsible to the borough mayor for the implementation of policies and programs instituted pursuant to law for the control of air and solid waste pollution and disposal within the borough.
For statutory provisions authorizing municipalities to regulate air pollution control, see AS 29.35 [likely AS 29.35.055]; for provisions setting minimum standards for borough air pollution control programs, see AS 46.03. [more likely AS 46.14.400-410]
Borough Chapter 2.52.020 Responsibilities:
A. The officer shall have the responsibility of investigation to further the purposes specified above, including but not limited to the following:
1. Investigation of citizen complaints;
2. Such investigation as the pollution control commission or borough mayor may direct; and
3. Authority to inspect equipment, structures, and operations and to make measurements on private property at reasonable hours and with proper notice to the occupant of the premises.
B. The officer shall conduct such surveys and research as is necessary to assist the pollution control commission in the drafting of regulations and ordinances.
C. The officer shall to the extent practicable encourage the voluntary cooperation by persons and affected groups to achieve the purposes specified above, or regulations pursuant thereto.
D. The officer has the authority to issue citations to alleged violators of sections of this code relating to control of air and solid waste pollution and disposal, requiring the alleged violators to appear in a court of law.
E. All zoning changes within the borough shall be brought to the attention of the officer by the borough planning director prior to the time notice is given for any public planning commission hearing. If the officer feels that the proposed zoning change will affect the air quality of the borough, he shall issue a report to the planning commission and pollution control commission. The report may recommend approval, modification or disapproval of the proposed zoning change in the interest of maintaining or enhancing the air quality of the borough.
F. The officer shall seek voluntary cooperation of citizens, but has the authority to secure judicial search warrants for conducting routine or area inspection with regard to air pollution of any particular place, dwelling, structure, premises, or vehicle.
Fairbanks North Star Borough School District:
Fairbanks City Code Article VI 34-201 & 34-202 Hydronic heaters:
No hydronic heater may be installed inside the City of Fairbanks after June 8, 2009, without a permit issued by the City of Fairbanks. No permit shall be issued until standards are adopted by the Fairbanks City Council.
Fairbanks Municipal Code Article IV 34-106 Report of pollution conditions:
When the city engineer shall find facilities for disposal of sewage, wastewater or other liquids, or waste gases on premises within the city which do not comply with section 10-136, adoption of the Uniform Plumbing Code, or a failure to use facilities that contaminate or pollute or tend to contaminate or pollute the air, a flowing stream, a standing body of water, groundwater, or the ground to such an extent as to endanger human life or health, a report of such findings shall be made for the files of the state department of environmental conservation and copies of said report shall be distributed to the mayor.
North Pole Municipal Code 8.04 Nuisances:
8.04.060 Dense Smoke.
It is unlawful for any person to permit the emission of any smoke from any source whatever of a density equal to or greater than that density described as No. 2 on the Ringlemann Chart, published by the United States Bureau of Mines. The emission of such smoke is declared to be a public nuisance and may be summarily abated as provided in this chapter. (Prior code §12-9)
8.04.070 Soot, cinders, noxious acids, fumes and gases.
It is unlawful for any person to permit or cause to escape any soot, cinders, noxious acids, fumes or gases in such place or manner as to be detrimental to any person or to the public or to endanger the health, comfort and safety of any such person or the public, or in such a manner as to cause or have a tendency to cause injury or damage to property or business. The escape of such matter is declared to be a public nuisance, and may be summarily abated as provided in this chapter. (Prior code §12-10)
North Pole Municipal Code 12.24.210 Violations Deemed A Public Nuisance:
A. In addition to the enforcement processes and penalties provided, any condition caused or permitted to exist in violation of any of the provisions of this Ordinance is a threat to public health, safety, and welfare, and is declared and deemed a nuisance, and may be summarily abated or restored at the violator’s expense, and/or a civil action to abate may be taken to enjoin or otherwise compel the cessation of such nuisance.
B. It is the duty of the mayor or his designee receiving information or obtaining knowledge of the existence of anything or things declared to be nuisances in this chapter to notify the person committing, creating, keeping or maintaining the same to remove or cause the same to be removed within twenty-four hours, or such other reasonable times may be determined by the city official after such notice has been duly given; and if the same is not removed by such person within the time prescribed in the notice, it shall be the duty of the mayor or his designee to remove or cause to be removed such nuisance or nuisances and all costs and expenses of such removal shall be paid by the persons committing, creating, keeping or maintaining such nuisance or nuisances. A person violating the provisions of this chapter may be punished by a fine of not more than $200 (two hundred dollars) per violation in addition to any costs and expenses for removal of the nuisance.