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Archive for the ‘2012 – Proposition 3’ Category

Ordinance 2013-28 Repeal of Pollution Control Officer, pg 1It took 5 1/2 months to get it all done. They did it by messy chops and wacks, not like ripping off a Band-aid®. There was a lot to repeal before they got around to rooting out the last life and safety safeguard from air pollution secured in one of the oldest sections of code, overlooked until the very end.

The mayor asked the Assembly to finish the task of wiping away the last local defense against air pollution. Quite simply, the Assembly complied.

Without or publicity, on Thursday, March 14, the Assembly voted 7 to 1 to eliminate the pollution control officer position, Ordinance 2013-28.

A single assembly member refused to go along. Send her a message of your thanks: Kathryn Dodge <kdodge@fnsb.us>. Tell her how much the pollution harms you: 479-8103 home.

If only all Assembly members took their responsibilities seriously and researched their options and the consequences, instead of merely following instructions and mouthing ineffectual postmortem regrets. Civics 101: Assembly members control their own vote; there can be no mandate on how that vote must be cast.

What would have happened if the Assembly refused to remove code established to protect life and safety? What would happen if they voted to reestablish air quality protections in code? These are serious questions with vital consequences for public health. Honestly, what outcome could be more excruciating than perpetual Borough hand-wringing while air pollution damages more residents’ lives?

Assembly Member Dodge followed the Constitution and stood up for your life and safety. Others didn’t.

The sequence of errors, mistakes, and irresponsibilities:

  1. The Borough attorney should have refused to approve Proposition 3 as an initiative or as a referendum consistent with state law and the Alaska Constitution.
  2. When Prop 3 as code conflicted with other code providing air quality safeguards, the Borough attorney and the mayor should have explained the range of choices and the consequences for the Assembly, not instructed the Assembly on how they must cast their vote.
  3. The Assembly made little effort to seek additional information, including that they were throwing away the only air pollution authority in the Borough with “police-like” power — the power to issue citations or tickets to violators.

Assembly member Dodge’s action on Prop 3 proves the Assembly had a lifeline and dropped it. Proposition A in 2011 followed the same sequence, failures, and lonely hero. It was Assembly member Diane Hutchison in 2011 who cast the solitary vote to retain safeguards prohibiting woodsmoke over 50% opacity and heavy plumes of smoke crossing property lines per Mayor Hopkin’s ordinance, 2011-03.

How the Borough dumped YOUR air quality protections.

Proposition 3, promoted by lead sponsor Representative Tammie Wilson as “local control“, was approved by voters October 2, 2012. What Prop 3 said:

“The borough shall not, in any way, regulate, prohibit, curtail, nor issue fines or fees associated with, the sale, distribution, or operation of heating appliances or any type of combustible fuel.” Proposition 3 (full text)

Prop 3 was put forward by the sponsors as an initiative, and improperly approved by the Borough Clerk under the advice of Borough Attorney Rene Broker. [Mistake #1.] Then, after registered voter signatures qualified it for the ballot, it was submitted to the voters for approval. [A mistake in judgment perhaps, but each voter controls his or her choice as does the Assembly.] Voters narrowly approved the measure October 2, 2012, and it was added to code (FNSB 8.21.025).

Then, Prop 3 put on its referendum cloak and persuaded the Borough attorney and Mayor Luke Hopkins to oversee the dismantling of chapters and entire titles of code supporting air pollution control (see list below). [Mistake #2.] Assembly members were led to understand they had no choice but to go along. With one noteworthy exception, Assembly members made little or no effort to examine their legal options to protect public health from grave consequences. [Mistake #3.]

Instead, the Assembly could have chosen to find Prop 3 “unenforceable” and in conflict with existing code. Prop 3 made the bed, let Prop 3 sleep in it! In a classic demonstration of “groupthink,” The Assembly followed misguided direction and joined the wrecking crew.

An initiative can only initiate new legislation; it cannot remove existing rules. From the Alaska Constitution:

“The people may propose and enact laws by the initiative, and approve or reject acts of the legislature by the referendum.” Constitution 11.1.

If Prop 3 required the removal of code, by definition, it was a referendum. However, the sponsors couldn’t propose it as a referendum to repeal current code because the constitution would get their proposal thrown out before the first qualifying signature. In the wisdom of the delegates to the Constitutional Convention, citizen referendum are prohibited from wiping out laws to protect health and safety. Quite logically, initiatives do not have this same prohibition, because the constitutional delegates knew no initiative had the power to remove a law. In the delegates’ own words:

“The initiative shall not be used to dedicate revenues, make or repeal appropriations, create courts, define the jurisdiction of courts or prescribe their rules, or enact local or special legislation. The referendum shall not be applied to dedications of revenue, to appropriations, to local or special legislation, or to laws necessary for the immediate preservation of the public peace, health, or safety.” Constitution 11.7. referenced by AS 29.26.100 with regards to municipalities

Public health and safety are too essential to be legislated away by popular vote — that’s what constitutional delegates decided in 1956. Representative Tammie Wilson may not agree, but she’s never claimed to be a constitutional scholar.

Once Prop 3 was enacted into code, it conflicted with existing code it could not repeal.

That brings us to the choice the Assembly should have been offered: acknowledge Prop 3 as “unenforceable” as a matter of law. Instead, without understanding this choice, the Assembly used their own statutory authority to reject laws that protect health and safety, an authority which is theirs alone. There’s nothing illegal about the Assembly throwing out health and safety protections. Irresponsible and cruel? Yes. However, any premise that Prop 3 forced their hand to vote is incorrect.

State law gives the Assembly, not citizen ballot propositions, authority for air pollution control. A second class borough may adopt air pollution control areawide (throughout the entire borough — including inside and outside cities). Other discretionary powers so authorized include water pollution control, transportation systems, animal control, and licensing of daycare facilities, per Alaska Statutes 29.35.210(b)(3). [The Borough has declined to license daycare facilities, giving DHSS full authority in the FNSB.]

Representative Wilson claims the Borough’s lack of police powers prevent it from enforcing air quality control. This is wishful thinking, ignorance, or a blatant effort to mislead. As anyone who has had their dog picked up by animal control knows, the borough is fully capable of issuing citations and fines. FNSB code of ordinance clearly states that the borough has full authority to “enforce an ordinance and to prescribe a penalty for violation of an ordinance,” 1.02.020 A.7. as backed up by state law AS 29.35.010(7).

Alaska DEC, however, lacks similar citation authority in state law. Both DEC inspectors and the State Troopers are authorized to enforce air quality controls under 46.03.890, but state law has never granted DEC or the Troopers authority to issue air quality citations or tickets. State air quality controls can be enforced only thru taking violators to court one-by-one under AS 46.03.790 or AS 46.03.810 and AS 12.55.035. Agreed, these statutes contain severe penalties, but the slow and costly process judicial process limits the efficacy of this method and thus its overall deterrent effect. DEC, and now the FNSB, lack citation authority. Big mistake if you support effective enforcement of air quality protections for the purpose of protecting public health and heading off the economic penalties of nonattainment stipulated in the Clean Air Act.

The Borough’s systematical repeal of air quality codes breaks the 2010 MOU with DEC, that specifies the Borough will “take the lead” on “local control programs”. Clearly, the current Borough air quality program “fails to meet the terms of the cooperative agreement” in breach of AS 46.14.410. It is past time for DEC to notice that the Fairbanks MOU is due for a major overhaul and hold a hearing as required by AS 46.14.410.

More importantly, wiping away local air quality safeguards enforceable through citations abandons the health of residents and visitors to Alaska DEC. Without statutory authority to issue tickets, DEC is unable to adequately enforce the state’s limited set of air quality rules and prevent harm from air pollution. The Assembly paid no attention to their unique authority to issue citations and just dumped this local power along with every other safeguard to protect you and your children from air pollution. How could the Assembly not notice this gaping void in DEC’s paltry enforcement toolbox?

Did the Assembly not examine how well does Alaska DEC perform its job of protecting public health from air pollution? “Clean air is essential to every breathing moment” proclaims DEC’s air quality homepage. When faced with a real public health crisis, however, DEC track record of inaction protects the polluter and prolongs the harm.

What’s it take to get DEC to take a flagrant air pollution violator to court? In the only example, 2 wood-fired hydronic heaters owned by a landlord across from the Woodriver Elementary, it took the combined weight of approximately 366 complaints from 50 to 90 individuals including principals and school nurses and the passage of 4 1/2 years to bring DEC to file in court. 17 became state witnesses and turned over personal medical records to the court to document the destruction of their bodies from the smoke. It gives DEC too much credit to call their response disinterested or incompetent. Ideologically biased or criminally negligent adverbs come to mind. When the evidence is broken bodies, waiting for too much evidence is not a good thing.

Woodriver Wood-fired Hydronic Heater 2009-2013, 58 Trinidad Dr, Fairbanks, Alaska

Woodriver Wood-fired Hydronic Heater 2009-2013, 58 Trinidad Dr, Fairbanks, Alaska

Did DEC somehow lose this authority in the brief history of this young state? More likely, the state legislature never opened its eyes to pollution serious enough to cause permanent bodily harm and even death. Levels of air pollution known to increase hospitalizations and deaths are categorized as a nuisance like a barking dog or littering, and are misunderstood as too insignificant to warrant a stepped up enforcement capability.

Court rooms are not the place to stop public health crimes in progress. In the Woodriver case, Judge Robert B. Downes took 32 days to determine the boilers were a “public nuisance” and order them to cease burning. By various reports, the landlord kept burning for as long as 8 more days before finally stopping.

To effectively prevent harm to health and meet EPA attainment, the key is enforcement, not voluntary measures or buckets of excuses. In Juneau, local staff issue tickets to air pollution violators. The enforcement program works both for individual compliance and deterrence. Juneau was declared PM 10 nonattainment in 1990, and last exceeded the standard in 1993. Enviable, indeed “exemplary” according to DEC.

Definition: ex·em·pla·ry  /igˈzemplərē/ Adjective
  1. Serving as a desirable model; representing the best of its kind.
  2. Characteristic of its kind or illustrating a general rule.

Synonyms:  model, typical

The Assembly reaped, now the people weep.

Local code now gives more protection to floodways [no joke: enforced with $500 fines!], than to public health from air pollution. This in a community where, according to agency scientists, “Fairbanks has some of the highest wintertime ambient PM2.5 concentrations measured throughout the United States.” No plan is in place to replace discarded protections. The Legislature is not considering any request from DEC to grant citation authority. Residents continue to be victimized by neighbors’ polluting choices.

Some will blame Mayor Hopkins, Attorney Broker, and the Assembly. Excepting Assembly member Dodge, we do.

Some will blame the voters who supported Proposition 3 (full text), all 8,658 of them — most from North Pole. They may not yet recognize their heart and lung problems are an increasingly likely consequence of North Pole’s severe air pollution. It wasn’t a huge margin — just 974 votes. You can’t blame Fairbanks voters: 54.5% voted no on Prop 3. Give at least a frown to those who could have voted but didn’t: over 53,900 residents. Turnout was just 23.5% of those registered. [FNSB 2012 election results]

But don’t put this on the children. Approximately 25,300 residents under the age of 18 live in the borough, according to the US Census. Children can’t move away, can’t choose where they attend school or daycare, can’t choose how their home is heated, can’t select where their foster family lives, can’t even take themselves to a doctor. Adults are empowered to make these and other decisions that set the course for every child’s future.

What parent would give away the ability to protect his or her child’s future? What adult would throw themselves at the mercy of a disinterested, negligent government based over 700 miles away that can’t even ticket air pollution violators? What leader would wring his hands and ask for our understanding, while ignoring the constitution and state laws that empower him to protect public health?

Assembly member Kathryn Dodge, please accept our sincere appreciation for refusing to go along with this injustice against our children and their futures. Your courageous vote shows the way forward to a serious reexamination of what went wrong and how the Assembly retains every lawful authority to make it right. Thank you.

Protections for life and safety from air pollution voted into and out of code by the Assembly:

  • prohibition on installation of any solid fuel burning device unless it is EPA-certified stove or EPA-qualified Phase 2 hydronic heater
  • prohibition on installation of coal-burning appliances
  • setbacks, lot size, and chimney requirements for hydronic heaters
  • prohibited fuels list: clean, dry wood; garbage; tires; materials containing plastic or rubber; waste petroleum products; paints and paint thinners; chemicals; glossy or colored papers; construction and demolition debris; plywood; particleboard; saltwater driftwood; manure; animal carcasses; and asphalt products
  • contractual restriction to prevent installation of non-FNSB qualified devices at properties receiving removal payments
  • opacity safeguard
  • nuisance safeguard
  • open burn safeguards
  • air pollution citation authority
  • pollution control officer position

When the last ancient tree from a once-marveled forest falls, its hulk plummets to the ground more heavily than the first. But when the last local defense for air pollution is repealed, a silence borne of guilt and complicity leaves not a whisper. ― Clean Air Fairbanks

“All tyranny needs to gain a foothold is for people of good conscience to remain silent.” ―  Thomas Jefferson

“If I were to remain silent, I’d be guilty of complicity.” ― Albert Einstein

“Not only will we have to repent for the sins of bad people; but we also will have to repent for the appalling silence of good people.” ― Martin Luther King, Jr.

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[UPDATE: The Assembly approved Ordinance 2013-07, 7-0 to repeal open burning rules without amendment on 1-24-2013.]

Have you given up on the Borough? Are you counting on Alaska DEC to quickly revise its open burning regulations so they can step in to protect public health? The News-Miner editorial board is there already: More fallout: Proposition may have killed winter burn ban 1-24-2013.

Get Real, Face Facts

What are the chances of DEC doing anything quickly? DEC doesn’t even have the statutory authority to issue citations or tickets. Even with the flagrantly polluting Woodriver OWBs, DEC waited 4 full years before finally taking the violators to court.

If Assembly members want to preserve some semblance of concern for public health and safety, simply define “fuel”. This worst-polluted winter is not the time to rush through a repeal of Borough Chapter 8.04, the entire open burning code, as does line 32 of Ordinance 2013-07.

COME TONIGHT TO SAVE THE OPEN BURNING ORDINANCE!

Help the Assembly make a better choice tonight, January 24 at 6 pm (agenda).

What’s the Problem?

Mayor Luke Hopkins claims Prop 3 “conflicts” with the open burning code and is “no longer valid and enforceable.” Mayor Hopkins is all in: “I urge your approval of this ordinance.” (Ordinance 2013-07)

How can this be? Proposition 3 (full text), passed by voters Oct 2, 2012, includes no definition of the word “fuel”. There was no discussion of its possible effect on open burning rules. There’s no evidence that Prop 3 sponsors had any intention of causing any effect on open burning rules. Prop 3 was even titled the “Citizens (sic) Home Heating Initiative” because, it was about, well, heating.

Ask the Prop 3 sponsors yourself: (State Representative) Tammie Wilson at 590-7602, Maria Rensel at 455-7008/590-4164, and Tim Sovde at 458-8196.

Tonight is the time for the Assembly to define “fuel”

Current Borough code doesn’t. Alaska DEC regulations don’t. This is an easy fix and a safe, reasonable way to save the open burning code. Assembly members need to add a definition of “fuel” in the open burning section, Borough Chapter 8.04 and, for good measure, in the PM 2.5 section, Borough Chapter 8.21. Here’s one they could use:

Merriam-Webster definition of fuel: fu·el  noun, often attributive \fyü(-ə)l\

1. a: a material used to produce heat or power by burning

Does Prop 3 Prevent Regulation of Open Burning?

Proposition 3 states that the Borough is prohibited from restrictions or fines associated with heating appliances “or any type of combustible fuel.”

Question: Is the material burned during open burning “fuel”?
Answer: No, and certainly not in the way Prop 3 intended. Open burning is disposing of waste in our air. It is not heating. Therefore, while what is dumped in a burn barrel or burn pile may be combustible, it is not used for heating, so cannot be fuel. In no way does Prop 3 dictate that open burning code dating back to 1986 (or even earlier) be killed.

Who knows, maybe a future mayor will take an interest in health and safety and actually enforce the code.

Assembly Vote, Assembly Choice

For those who may be tempted to allow the repeal of our open burn rules as a way to lay blame at the feet of the Prop 3 sponsors — State Representative Tammie Wilson, Maria Rensel, Tim Sovde and others — you’re not using your noggin’. Do you think Prop 3 sponsors care about your health or public health in general? They’ll say, sounding shocked, “Don’t blame us. That was not our intent.” True, but don’t expect them to take a stand against repealing the open burning rules. The Mayor erred in recommending this ill-conceived, unnecessary, injurious proposal to the Assembly. But only the Assembly has the final say. Lay full responsibility at the feet of your Assembly. It’s their vote, their choice.

Other terms defined in Borough Chapter 8.04. All are repealed by Ordinance 2013-07.

Construction n debris” means any waste or unused material resulting from the building, remodeling, construction, addition to or repair of a structure, including but not limited to wood, plastics, rubber, vinyl, insulation, carpet, or metal.

Garbage” means any putrescible solid or semisolid animal or vegetable wastes resulting from the production, handling, preparation, cooking, serving or consumption of food or food materials.

Open burning” means the burning of a material which results in the products of combustion being emitted directly into the air without passing through a stack or flare.

Putrescible garbage” means a material that can decompose and cause obnoxious odors.

Refuse” means any putrescible or nonputrescible solid waste, except human excreta.

Smolder” means to burn and smoke without flame.

Untreated wood” means wood that has been modified from its natural condition only by cutting, breaking, drying or absorption of moisture. Wood or wood fiber that has been painted or artificially impregnated with volatile chemicals does not constitute untreated wood.

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The Borough “invites the community to these public meetings to discuss how everyone can be a part of the solution to our neighborhood air quality problems. Join your neighbors … to find out what you can do to help.”

  • Tuesday, Dec 11 at 6PM – The Watershed School, 4975 Decathlon Ave, Fairbanks
  • Wednesday, Dec 12 at 6 PM – Nordale Elementary, 397 Hamilton Ave, Fairbanks

An earlier public meeting on Nov 29 in North Pole was attended by 20 residents. At the North Pole presentation, the Borough asked residents to make less smoke: North Pole Air Quality Presentation 11/29/12.

The Borough is limited to asking for voluntary compliance because they cannot enforce restrictions on harmful emissions due to voter approval of Proposition 3 on October 2, 2012: Sample Ballot with Prop 3.

Will voluntary compliance work? How many open houses will it take? Will more pleas and explanations of the harm make the air fit to breathe? Each of these meetings is being held in a pollution pit. [See the maps in the North Pole Presentation, above.] Many can’t risk exposure by attending.

The FDNM editorial board got it right and are finally calling for the state to take “aggressive action” on the “foulest polluters” Bad month: November highlighted need for action on air 12/2/2012.

Insist the state take enforcement action now:

Contact Governor Sean Parnell <governor@alaska.gov>  (907)465-3500
Sources tell us the Governor has taken over DEC’s enforcement authority, so all air pollution concerns need to be directed to him.

Then, if the air isn’t too bad, attend an open house to sign up to receive air pollution updates and volunteer not to burn wood or coal on those days.

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UPDATE: this initiative was approved by voters Oct 2, 2012. [Link: Election History 2011-2012]

A new voter initiative sidelines the Borough from any role in restricting air pollution from heating appliances if approved October 2. The Borough would be unable to stop those who burn “any type” of noxious or toxic materials for heating or smoke-out schools and neighbors. EPA’s deadline for meeting PM 2.5 attainment is December 2014. The initiative sticks the oh-so reluctant Alaska DEC with the job of reducing winter smoke pollution. To date, DEC has taken no action to stop air polluters harming public health in the community. Quite honestly, neither has the Borough.

2012 Initiative Language:

The borough shall not, in any way, regulate, prohibit, curtail, nor issue fines or fees associated with, the sale, distribution, or operation of heating appliances or any type of combustible fuel.

“Heating Appliances” is defined as, but not limited to: oil furnaces, gas furnaces, wood stoves, coal stoves, wood-fired hydronic heaters, wood-fired furnaces, coal-fired hydronic heaters, coal-fired furnaces, masonry heaters, pellet stoves, cook stoves, and fireplaces.

Links:

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