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Archive for the ‘Local Air Quality Ordinance’ Category

Has FNSB issued its first air quality fine?

CAF will post the address when confirmation is received.

Map to Kellum Street near Raven Landing: https://goo.gl/maps/5nYYr3XfFF12
Fine may be $100 (violation of visible emissions standard, 1st offense) or $500 (emissions crossing property lines, 1st offense) depending on section of code was violated.

Fri, 02/05/2016 – 20:10 –mfussell NewsCenter 11

The Fairbanks North Star Borough is issuing its first citation for an air quality violation, nearly a year after a program to monitor pollution was put in place.

“It either just happened recently, or it will happen first thing tomorrow morning,” Jim Williams, the Chief of Staff for FNSB Mayor Karl Kassel, said at a Borough Assembly meeting Thursday.

Williams said the Kassel Administration reached out to the Kellum Street individual being cited at least ten times since October.

He adds Mayor Karl Kassel wanted to be the first to make the call to take action.

“[Kassel] will continue to make the decision on fines to make sure that property owner have every single opportunity to be heard,” Williams said. “That specific property owner didn’t want anything to do with the borough.”

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Key question still being overlooked:

Would an ordinance weaker than state regulations (including the final SIP) risk termination of the local control program and state funding per AS 46.14.400, AS 46.14.410, and 18 AAC 50.015?

Instead of addressing this question, coverage in the Fairbanks Daily News-Miner is limited to reporting on opinions from three North Pole City Council members. North Pole leaders offer differing opinions on borough air quality plan 2/26/2015.

Link  to previous post: Assembly Proposal for Weak Controls Risks Termination of Local Control

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During recent public hearings on development of a new air quality ordinance, 2015-01, there was no mention that the new ordinance needed to be at least as stringent as the new plan approved by the State or the Borough risks losing local control.

The Assembly went so far as to amend into the draft ordinance a control zone, in effect shrinking the boundaries of the designated PM2.5 nonattainment area by removing the northern third of the nonattainment area. The revised control zone excludes part or all of Chena Ridge, Sheep Creek, Goldstream, Fox, and Gilmore Dome neighborhoods, view proposed “Air Quality Control Zone” map. Not only is there no data to support shrinking the nonattainment area, to do so violates State and Federal law. The idea that air quality must be a compromise seems to have thrown the Assembly off track. Like it or not, long-delayed deadlines and controls take effect Feb. 28, 2015. Opportunities to develop a local plan were squandered years ago. The Assembly holds only these options: follow the State program, strengthen it, or get out of the way. Weakening controls established by the State risks termination of local control and funding granted to the Borough for the program.

Legal substantiation:

  1. The latest version of ordinance 2015-01 appears to include an error in the “whereas” statements. The last statement on page 2 refers to “draft regulations” issued by DEC that are “intended to be part of the State Implementation Plan as required by the EPA.” The regulations issued by DEC are no longer in “draft” form. They are FINAL regulations that have been fully adopted by DEC (and signed by the Lieutenant Governor) and they constitute state regulatory law beginning Feb. 28, 2015. DEC’s website makes plain that the regulations are final.
  2. The draft Borough ordinance also notes on page 2 that the Borough has been authorized by DEC to operate an air quality control program “in lieu of and consistent with the State’s air quality program.” This is accurate, although the key word is “CONSISTENT.” Any local air quality control program must operate in a manner that is “consistent” with DEC requirements. This is specified in the statutory provision that allows for the existence of the Borough’s local air quality control program. Per AS 46.14.400(a): “With the approval of the department, a municipality may establish and administer within its jurisdiction a local air quality control program that operates in lieu of and is consistent with all or part of the department’s air quality program as established under this chapter.” (emphasis added).
  3. By Alaska statute, to be “consistent,” the Borough’s local air quality control program MUST implement DEC regulations. This is specified in AS 46.14.400(f):  “A municipality or a local air quality district administering a program under this section shall administer its local air quality control program according to this chapter, regulations adopted under those sections, and its cooperative agreement under (d) of this section.” (emphasis added).
  4. The only exception to the statutory requirement that a local air quality control program administer state regulations is for “more stringent” local requirements, which may be adopted with DEC approval. See AS 46.14.400(f).
  5. A local air quality control program may only operate if approved by DEC. See AS 46.14.400(a). If a local air quality control program is NOT administered in a manner that is consistent with legal requirements, DEC can revoke approval and terminate the program. See AS 46.14.410.
  6. The boundaries of the nonattainment area are set by EPA, whose delineation constitutes federal regulatory law. The boundaries of the nonattainment area are further codified in DEC’s regulations, which incorporate by reference the delineation of the EPA administrator.  See 18 AAC 50.015.
  7. In light of the foregoing, it would be UNLAWFUL, DISRUPTIVE, and ultimately POINTLESS for the Borough to adopt less restrictive air quality regulations.

Additional points:

  • Because state law requirements govern no matter what the Borough decides, inconsistent local measures risk unnecessary confusion and the potential that residents might face enforcement consequences for violation of state regulations—which they must obey no matter what the Borough says. (NOTE: Page 4 of the DEC-Borough MOU specifies that a violation of a DEC regulation will be handled by DEC.) Adoption of inconsistent local regulations risks termination of the Borough’s local air quality control program by DEC and funding provided for this program by state and federal agencies.
  • The adoption of inconsistent regulations by the Borough—and the attendant confusion and uncertainty about the extent to which state regulations are in force—likely would undermine the chances that EPA will approve the SIP submitted by DEC in January. If DEC’s SIP submission is not approved by EPA, the clock will start running on potential sanctions for Fairbanks, including stricter permit requirements for new major source, the loss of highway funds, and imposition of restrictions by EPA.

Note on Data Gap: In 2008, Mayor Jim Whitaker requested a time extension on the nonattainment boundary decision, insisting it was not “to delay addressing the problem,” but to resolve the “significant gaps” in the data used to set the nonattainment boundary. Link to source. (Whitaker is now chief of staff for Governor Bill Walker.) CAF encourages readers who are data driven to review the data used in 2008 to successfully press EPA to shrink the size of the nonattainment area. Link to ADEC nonattainment documents.

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[UPDATE: 2013-35 was approved, 8 to 1.]

How long until public health becomes a priority?

Until the cows come home.

– Melissa Simpson, Fairbanks, comment posted on Clean Air Fairbanks

The Assembly will take up the second pilot program related to air pollution Thursday, April 11.

Scheduled for Public Hearing (and vote)
2013-35, Enhanced Solid Fuel Change Out Program, $650,000. Targets three hot zones with reimbursements up to $10,000 plus $500 or $1,000 in cash for purchasers of a pellet stove or pellet boiler.

>> Link to Agenda, 6 pm, Assembly Chambers, Borough Admin Center, 809 Pioneer Road, Fairbanks
>> Link to Full Agenda Packet [5.7MB] p 79

Limitations to Ordinance 2013-35:

1) Eligibility is limited to wood and coal burners in priority areas. FNSB Air Quality has identified three hot zones: The Rectangle of Death in North Pole, Nordale Elementary/Hamilton Acres, and The Watershed School/Dale Road. See maps below.
Shows Two PM 2.5 Hot Zones: Watershed/Dale Road and Nordale Elementary/Hamilton Acres in Fairbanks, Alaska

Shows Two PM 2.5 Hot Zones: Watershed/Dale Road and Nordale Elementary/Hamilton Acres in Fairbanks, Alaska

Shows "Rectangle of Death" PM 2.5 Hot Zone in North Pole, Alaska

Shows “Rectangle of Death” PM 2.5 Hot Zone in North Pole, Alaska

2) No smoke victims with life threatening emphysema or atrial fibrillation need apply unless they also burn wood or coal.
  • 3) Funding is not for home or school air filtration systems or bus tickets to safety, but to increase already generous payments, currently up to $3,000, to as much as $10,000 to incentivize wood and coal burners. Change-out payments in current code are the highest in the nation, if not the world.

4) Program participants may be reimbursed for purchase and installation of an oil burning boiler or furnace, but cash payments of $500 or $1,000 are for pellet stove and pellet boiler purchasers only, thus may not be used to offset heating oil expenses.

5) With a single exception, no state, federal, or local code limits installation of any coal stove, outdoor wood boiler, barrel stove, or other highly polluting solid-fuel heating device. The exception applies only within the City of Fairbanks: installation of hydronic heaters is prohibited after June 8, 2009. Everywhere else in the borough including in the PM 2.5 nonattainment area is an install-anything zone, lacking any restrictions on what types of devices may be installed. For just over $100 and an old drum, anyone can smoke out the neighborhood.

$115 Barrel Stove Kit (w/o barrel) by Kimbak, #KIMYK1110 from AIH, http://store.aihalaska.com

Assembly member Michael Dukes installed a Harman TLC-2000 coal stove last fall in his home in the Rectangle of Death. No provision in the proposed ordinance prevents installation of the most noxious, poisonous-smoke-spewing boiler next to any school in the borough. Or next to your home or workplace. As long as it is outside the Fairbanks city limits, it’s allowed. Highly polluting waste oil burners can be installed anywhere, anytime.

Harmon TLC 2000 Coal Stove

Who loses under 2013-35? Residents who want to participate in the change-out program but live outside priority hot zones. The $650,000 cost comes from previous state grants, likely EPA pass-thrus, that would otherwise be spent for the existing change-out program for which anyone (resident or business) in the PM 2.5 nonattainment area is eligible. The program will touch 2/3 fewer residents than the existing program because the higher payouts ($11,000 under 2013-35 vs $3,000 previous cap) will burn through available funds far more quickly.

Who wins? The dealers of the devices. Retailers like The Woodway and manufacturers like Central Boiler. Plus, Superior Pellet Fuels, the local pellet manufacturer.

Could it help? If it helps one child avoid an asthma attack, that’s vital for that child. But what will prevent program participants from taking the money and turning right around and installing a highly polluting device? Absolutely nothing.

Is it fair and smart? Why don’t purchasers of an oil furnace receive cash payments just like purchasers of a pellet stove or pellet boiler? FNSB testing at Omni Lab in Portland found a 40 times higher 10 fold reduction over burning a fuel oil furnace, see runs 1 and 40 of Omni Lab draft Appendix A. The additional benefit of going with a cleaner oil-fired unit is that it won’t be shut down during a burn ban.

Can it be sustained? With state oil tax cuts on the way and federal cutbacks from the sequester taking effect, funding sources for the change-out program are likely a thing of the past. A case could be made to immediately suspend the change-out program to preserve current funds to use after Prop 3 expires Oct. 2014 and the Borough can establish limits on installation of highly polluting devices. Then there’s no backsliding, or need to pay the same program recipients again and again.

But will it pass? The Assembly will pass it just so it looks like they’re doing something to help.

Any recusals this time? Assembly members with a solid fuel burning device in the hot zone neighborhoods should be required to recuse themselves. Assembly member Michael Dukes has a coal stove in his Rectangle of Death neighborhood. If Assembly member Van Lawrence in Hamilton Acres has a solid fuel burning device eligible under the enhanced change-out program proposal, he should be required to recuse himself as well. However, as the ordinance does not specify what areas are specifically targeted, there may be an attempt to let assembly members skate on recusals. Assembly members were briefed on the “hotspots” during the FNSB powerPoint presentation on March 21, 2013, pages 5 and 6, so there’s really no question which neighborhoods benefit from the targeted payments.

What’s in 2013-35 for Assembly Member Dukes? Assembly member Dukes can remove his new coal stove, install a pellet hydronic, and get reimbursed for up to $10,000 plus get $1,000 in cash. Then he can turn around, sell the pellet boiler on Craig’s List, buy another coal stove, and spend the $1,000 on a winter’s supply of coal. Clearly a conflict of interest and lucrative for him personally. Assembly member Dukes talked up the installation of his coal stove with Kim Murphy of the LA Times:

“People seriously were in a panic. It really became a question of heat or eat,” said Michael Dukes, a member of the Fairbanks North Star Borough Assembly who recently installed a coal stove — only slightly less polluting than a wood stove — in his home in North Pole’s rectangle of death. “I was paying twice what my mortgage was just to heat my home.” — Fairbanks area, trying to stay warm, chokes on wood stove pollution  Wood-burning stoves give the Fairbanks, Alaska, area some of the worst winter air pollution in the country, 2/16/2013.

When will polluters stop being rewarded? When will the pollution stop increasing? With consequences, instead of rewards, pollution levels will quickly decrease and public health will be protected. In the meantime, raising children is and will continue to be hazardous, especially in Assembly member Dukes’ neighborhood, the Rectangle of Death in North Pole.

On Education and Incentives vs. Enforcement: All the education in the world won’t overcome the economic payoff that directly benefits those who choose to heat with highly polluting but very cheap methods. It’s a modern-day tragedy of the commons, forfeiting the air you need to breathe. Incentives for those who use highly polluting fuels may show progress in the short-term, but the costs of those incentives and the air quality improvements are borne by all. A few benefit directly. It’s only a matter of time before the public tires of throwing public funds at a special interest group. Enforcement, on the other hand, is self-supporting, sustainable, and deters pollution so harm is prevented. Only in Fairbanks, using the tail end of funds from a bygone era, can incentives be so generous and the effective, affordable method — enforcement — practically nonexistent.

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[UPDATE: 2013-29 failed on 4-4 tie. Assembly member Van Lawrence recused himself because he lives in Nordale/Hamilton Acres neighborhood. See FDNM article: Borough Assembly rejects clean air incentive proposal 3/29/2013.]

The Assembly will take up two pilot programs related to air pollution Thursday, March 28.

Scheduled for Public Hearing (and vote)
2013-29, Community Heating Incentive Program (pilot program), $500,000
Exclusively targets the Nordale neighborhood (Full Agenda Packet, p 103).

Open for Public Comment (during Citizen’s Comments)
2013-35, Enhanced Solid Fuel Change Out Program (pilot program), $650,000
Scheduled for public hearing at Apr 11, 2013 Assembly meeting.
Priority ranks applications based on location and air quality benefit (line 97). [Watershed families seem to think their area would be prioritized, but it isn’t specified in the proposed ordinance.]

>> Link to Agenda, 6 pm, Assembly Chambers, Borough Admin Center, 809 Pioneer Road, Fairbanks
>> Link to Full Agenda Packet — 2013-29, page 96; 2013-35, page 305

$1.15 million for air quality financial incentives and voluntary programs with zero fiscal impact to FNSB.

Sounds good, but will it work? Might. People need help desperately. If it helps one individual breathe better air, that’s one life made better.

These programs aren’t cheap. Willingness to spend $1.15 million more speaks to the concern that a realization is finally dawning: major economic stakes are riding on meeting federal PM 2.5 attainment as required by the Clean Air Act. Federal transportation funding and grants will be redirected to EPA to pay for the costs of meeting attainment if the state can’t show attainment has been met.

Where is the $1.15 million from? It appears that it may be from pass-thru grants from EPA to the state, previously allocated to the Borough for stove change-outs. A little transparency on funding would be appreciated.

Assuming the pilot programs work, will they be sustainable? Where would the cash come from for future incentives and infinite change-outs?

Limits on the Effectiveness of the Programs as Proposed

After dark, how can the Borough “visually” verify incentive program participants who continue to burn? Full Agenda Packet, p 103.

There is no restriction to prevent anyone, including change-out fund recipients, from installing yet another highly polluting device anywhere in the Borough. Directly across from Woodriver or Watershed or any school? No problem. Heck, a state-licensed daycare in North Pole has a noxious hydronic heater! It doesn’t take many wood or coal boilers or wet wood burners to erase hard-fought gains.

For the record, these programs will not pay for installations of wood or coal boilers. Rep Tammie Wilson’s mission has been more wood and coal boilers with the $1.3 million earmark for her pet nonprofit without accountability, the Alaska Resource Agency and her bill to provide loans statewide that can be used to purchase and install more wood and coal boilers, HB 35.

Delays Backed up by Snow Jobs

Their primary purpose is not improving public health, which they may, but to delay. To show EPA how hard we’re working here, thereby justifying an extension until 2019. Delaying nonattainment harms public health.

The Borough says it is preparing a plan for attainment including: “identifying control measures and components that demonstrate attainment by December 2014,” 2013-29, line 18-21. Yet, 2014 attainment is calculated from a three-year average of design values from 2011, 2012, and 2013. The design value for 2011 was 38 and for 2012 was 50. Work the math. To reach an average of 35 to demonstrate attainment, the 2013 design value has to be 17 or lessHow likely is that? We love snow, not getting snowed!

Attention needs to be focused squarely on mandatory programs with effective, proven control measures and enforcement to protect public health. Focus not on delays, but on durable solutions. Be not distracted by delay tactics.

The state legislature adjourns April 14. Distracting delays have nearly whiled away yet another session with this blog being the only voice calling for statutory citation authority for air pollution violations. This void in the state’s paltry enforcement toolbox will delay PM 2.5 nonattainment indefinitely.

New voluntary programs and incentives are not air quality controls. The ability to take pollution violators to court is not sufficient for effective enforcement. Delays backed up by public snow jobs are literally sickening.

How much longer will public health wait to become the priority?

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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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Some will say the Woodriver smokers, Andrew and Gloria Straughn, will see this post and stop burning.

We say, go right ahead and stop. That’s exactly what they should have done over 4 years ago.

The Straughn’s got the order. It’s public record. Why shouldn’t you see it too?

Preliminary Injunction order on Straughn 2013-2-4

>> Link: State of Alaska v. Straughn Preliminary Injunction Order, ordered 2/4/2013

Here’s what we LOVE [Hey, it’s Valentine’s day!] about the court order.

“…(T)he Court finding good cause for such motion, and further finding that the operation of the defendants’ two outdoor wood boilers has proven to be a public nuisance;” Thank you, Judge! That’s a first for Fairbanks!

IT IS HEREBY ORDERED that the defendants may not operate either of the two outdoor wood boilers…unless they obtain an order from this Court allowing such operation.”

“This order takes effect immediately.” (Feb 4, 2013)

Signed by “Superior Court Judge Robert B. Downes”

Did the Straughns violate the order? Yes they did. Tomorrow we’ll publish a new set of photos. The evidence is in. Does the State have the juice to go after the Straughns for contempt of court? They better.

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