Archive for the ‘Litigation’ Category

The nonprofit Center for Biological Diversity filed suit Tuesday against EPA for failure to perform “mandatory duties” required in the Clean Air Act on fine particle (PM2.5) pollution. The Clean Air Act allows EPA six months to issue a finding when a state has missed its deadline for submitting the required PM2.5 attainment plan.

The lawsuit excludes Fairbanks, Alaska, a community of 100,000 with levels of PM2.5 pollution rivaling Beijing, with no plan for attainment, and no finding from EPA.

The lawsuit – excludes Fairbanks: CBD v. EPA PM2.5 SIP Complaint 11-5-2013

According to Jonathan Evans, toxics and endangered species campaign director for the Center:

The Clean Air Act saves lives, protects wildlife and the places they live, and reduces haze from toxic soot pollution. We can only reduce the scourge of air pollution if the EPA and states follow a sound blueprint to clean up our skies. Media Release 11/5/2013

The lawsuit follows the Center for Biological Diversity’s 60-day notice of intent to sue notice regarding EPA’s failure to issue findings for 7 states that had not submitted attainment plans. Fairbanks was included in the notice of intent to sue. According to Mr. Evans, other states were excluded from the lawsuit because EPA had addressed concerned raised in the notice. EPA has not in addressed Fairbanks air quality concerns.

The notice – includes Fairbanks: CBD NOI PM2.5 SIP 8-28-2013

The Clean Air Act required the State of Alaska to submit a state implementation plan (SIP) by the deadline of Dec 14, 2012. The state failed to submit the SIP because every effort has been for delay, not meeting attainment. EPA was required to issue a finding by June 14, 2013 that Alaska’s PM2.5 plan for Fairbanks had not been submitted. EPA has failed to issue the finding. EPA must respond when sued, but perhaps not a minute sooner.

Related posts:
Alaska Dispatch: Winter Smoke and Lawsuit on the Way, Agencies Lack Urgency
EPA Put on Notice for Failure to Issue PM2.5 Finding


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For Immediate Release:

Timothy D. Ballo, Earthjustice, tballo@earthjustice.org  202-667-4500
Gregg Tubbs, American Lung Association, Gregg.Tubbs@Lung.org  202-715-3469
Sharyn Stein, Environmental Defense Fund, sstein@edf.org  202-572-3396
David Presley, Clean Air Council, dpresley@cleanair.org  215-567-4004 ext. 122
Nancy Alderman, Environment and Human Health, Inc., nancy.alderman@ehhi.org   203-248-6582

Health and Environmental Groups Challenge EPA over 17-year Failure to Update Clean Air Standards for New Wood Boilers and Furnaces

Groups Seek Clean Air Solutions to Protect Health of Communities and Families from Dangerous Soot

Washington, DC (October 9, 2013) – Today, national health and environmental groups filed a legal challenge to require the U.S. Environmental Protection Agency to update clean air standards that limit emissions from new outdoor wood boilers, furnaces and other similar sources that discharge large volumes of woodsmoke. This review is 17 years overdue, resulting in increased exposure to harmful smoke and soot in communities across the nation despite the wide availability of cleaner technologies.

The American Lung Association, Environmental Defense Fund, Clean Air Council, and Environment and Human Health, Inc., represented by Earthjustice, filed a lawsuit over EPA’s failure to update emissions standards for new wood-burning boilers, furnaces and other similar high-emitting sources of dangerous soot as required by the Clean Air Act. The complaint filed today asks the U.S. District Court for the District of Columbia to order EPA Administrator Gina McCarthy to review and revise the standards. Filing a similar complaint today were the states of New York, Connecticut, Maryland, Massachusetts, Oregon, Rhode Island, and Vermont and the Puget Sound Clean Air Agency.

Links to PDF of legal filings submitted today:
Groups’ complaint PDF
States’ complaint PDF 

“The EPA set the current standards for wood-burning devices more than a quarter century ago, years before the first of the landmark studies that demonstrated that particles like those that make up woodsmoke can be deadly,” said Janice Nolen, Assistant Vice President, National Policy, for the American Lung Association. “Since then, research into the pollutants from wood-burning has grown rapidly. EPA has abundant evidence that the standards from a generation ago endanger public health.”

When EPA last set pollution limits on new wood-burning devices in 1988, the Agency determined that these devices “contribute significantly to air pollution which may reasonably be anticipated to endanger public health and welfare.” The Clean Air Act requires EPA to review emissions standards for health harming sources of air pollution every 8 years. Under the law, EPA should have reviewed and updated the standards in 1996, 2004, and 2012.

EPA’s failure to update the standards means that homeowners install thousands of new wood-burning boilers, furnaces and stoves each year that produce far more dangerous air pollution than would cleaner units. Emissions from high polluting devices include particulate matter, carbon monoxide, nitrogen oxides, volatile organic compounds, hazardous air pollutants, and carcinogens. The revised standards would only apply to new units, and would not affect existing sources.

“Woodsmoke from these devices is a significant source of dangerous fine particulate matter and because they emit close to the ground and their use is concentrated in certain areas including the Northeast, Northwest and Midwest, they have an enormous impact on wintertime air quality in those areas,” said Tim Ballo, attorney for Earthjustice. “The EPA needs to update its standards, which fail to cover the most heavily polluting types of wood burning equipment.”

“Wood stoves and boilers are a significant source of harmful particulates and toxic hydrocarbons,” said Elena Craft, Environmental Defense Fund Health Scientist. “Rigorous, health-protective standards for new stoves and boilers are both long overdue and urgently needed to protect families and communities around the country whose health is impacted by wood smoke emissions.”

“We’ve seen the market for outdoor boilers expand over the past two decades and over 10,000 units are sold each year,” said David Presley, Staff Attorney, Clean Air Council. “EPA and the industry developed voluntary outdoor wood boiler standards in 2010, but most devices sold fail to meet even these voluntary standards.”

EPA’s standards of performance do not reflect improvements in technology available widely today. For example, the State of Washington requires wood-burning devices to meet PM emission standards that are 40 percent more stringent than EPA’s standards. Moreover, EPA’s own data shows that many current devices far surpass even the Washington standards. Some widely-sold wood-burning devices, such as large outdoor wood boilers, are not covered at all by EPA’s current standards.

“Until EPA acts, the wood smoke from these devices will continue to enter the houses of all those who live near them, causing families to lose their health as well as the value of their homes, explained Nancy Alderman, Environment and Human Health, Inc. “The EPA cannot continue to allow so many citizens to be made sick because they have not acted, as the law requires, to set new air emission standards that keep pace with improving technology.”


Related posts:
States, Groups Demand EPA Update Outdated Residential Wood Heater Standards
Tell EPA to Close the Hydronic Heater Loophole

American Lung Association
Now in its second century, the American Lung Association is the leading organization working to save lives by improving lung health and preventing lung disease. With your generous support, the American Lung Association is “Fighting for Air” through research, education and advocacy. For more information about the American Lung Association, a holder of the Better Business Bureau Wise Giving Guide Seal, or to support the work it does, call 1-800-LUNG-USA (1-800-586-4872) or visit www.lung.org.

Clean Air Council
Clean Air Council is a non-profit environmental organization that has fought to improve the air quality across the Mid-Atlantic for more than 40 years. The Council has over 7,000 members across the region. The Council’s mission is to protect everyone’s right to breathe clean air. www.cleanair.org

Earthjustice is a non-profit public interest law organization dedicated to protecting the magnificent places, natural resources, and wildlife of this earth, and to defending the right of all people to a healthy environment.  earthjustice.org

Environmental Defense Fund
Environmental Defense Fund (edf.org), a leading national nonprofit organization, creates transformational solutions to the most serious environmental problems. EDF links science, economics, law and innovative private-sector partnerships. See twitter.com/EnvDefenseFund; facebook.com/EnvDefenseFund

Environment and Human Health, Inc.
Environment and Human Health, Inc. (EHHI), is a non-profit organization composed of physicians, public health professionals and policy experts dedicated to protecting human health from environmental harms.  EHHI is committed to improving the public’s health and reducing environmental health risks to individuals.  www.ehhi.org

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States and public advocacy groups are demanding the US Environmental Protection Agency update new source performance standards (NSPS) for residential wood heaters. This is the 25-year-old federal program used to “certify” woodstoves. The Clean Air Act requires EPA review and revise the standard every 8 years.

The states and groups argue that residential wood heaters are fired up much more frequently since the rules were crafted in 1988, including a “dramatic increase” from the exempted category of hydronic heaters, also called wood boilers.

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

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

The states of Connecticut, Rhode Island, Vermont, Oregon, New York, Maryland, and Massachusetts, as well as the Puget Sound Clean Air Agency of Washington State, sent notice August 1 that they plan to sue for EPA’s lack of promulgating new source standards for residential wood heaters as required by the Clean Air Act. Attorneys General NOI to EPA on NSPS (missing some pages).

On the same day, four organizations sent EPA a similar 60-day notice: American Lung Association, Clean Air Council, Environmental Defense Fund, and Environment and Human Health, Inc. NGO NOI to EPA on NSPS (missing some pages).

Wood burning devices contribute between 62 and 81 percent of winter fine particulate air pollution in Fairbanks and North Pole.

Link: Environmental Headlines 8/30/2013

Related posts:

Tell EPA to Close the Hydronic Heater Loophole
What You Breathe Each Winter in Fairbanks and North Pole [pie charts]

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Yesterday, a new motion was filed in Alaska’s first and only enforcement case against the owners of two wood-fired hydronic heaters, often called outdoor wood boilers.

Case Motion #33: Joint Motion for Entry of Stipulated Final Judgment and Order 7/22/2013

This is a joint request from the state of Alaska–the plaintiff–and the defendants (the Straughns) to Judge Jane Kauvar. It appears the state has reached agreement with the defendants to settle the case, Alaska v. Straughn.

Straight down the line, the state’s claims have been favorably received from the court. There’s no need for a trial if the state gets everything it wanted in the settlement agreement.

FROM THE STATE – all granted by the judge

Case Motion #1:
Motion for Preliminary Injunction

Case Motion #3:
State’s Motion to Strike Defendants’ Jury Demand

Case Motion #9:
Motion to Amend Complaint

Case Motion #19:
Motion for Discovery Sanctions and to Compel

Case Motion #21:
Motion for Expedited Consideration

Case Motion #25:
Unopposed Motion for Commission to Take Out-of-State Deposition of Jeff Hallowell by Telephone (Hallowell is president of ClearStak)

Case Motion #29
Motion for Commision to Take Out-of State Deposition of Rodney Tollefson by Telephone [Tollefson is VP of Central Boiler]

FROM THE DEFENDANTS – all denied by the judge

Case Motion #7:
Cross Motion to dismiss Claims for Restitution Under 46.03.810(b)

Case Motion #12:
Motion to Extend Deadline to File Joinder of Parties

Case Motion #14:
Motion to Vacate Pre-Trial Dates or, in the Alternative, Stay Proceedings

Case Motion #15:
Motion to Extend Deadlines for Replies to Defendants Motions to Dismiss and to Vacate Pre-Trial Dates, or in the Alternative, Stay Proceedings

Case Motion #28:
Motion for Reconsideration Regarding Motion for Leave to Add Additional Parties

>> Link: CourtView to follow Alaska v. Straughn, also called the Woodriver case, case number 4FA-13-01205CI

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Judge Jane F. Kauvar was asked by an attorney for the defense in the Alaska v. Straughn case to suppress pictures and expert witnesses submitted as evidence by the state. Judge Kauvar has not ruled on the motions.

Case Motion #23: Motion in Limine: Pictures filed by Attorney Michael Walleri 6/18/2013

Case Motion #24 Motion in Limine: Expert Witnesses filed by Attorney Michael Walleri 6/18/2013

Which photos is the defense seeking to keep out as evidence? Perhaps these?

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

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

Or could it be a recent photo of the so-called “dismantled” boilers lurking like snakes in the grass? See previous post: When is “Dismantled” Just “Unplugged”? Newspaper Promotes Defense Fabrication

5055 Palo Verde Ave, Fairbanks, Alaska 6/27/2013

5055 Palo Verde Ave, Fairbanks, Alaska 6/27/2013

58 Trinidad Dr, Fairbanks, Alaska 6/27/2013

58 Trinidad Dr, Fairbanks, Alaska 6/27/2013

Does the defense want to suppress the photos because the images would inflame the jury against the Straughns? Is the defense seeking to suppress all photographic evidence submitted? Did the state submit a photo of the 4 children having asthma attacks on just one day at Woodriver Elementary? Can a photo capture the suffering of not knowing you can take the next breath?

The state filed Case Motion #16 Motion in Limine to Preclude Defendants From Introducing Expert Testimony at Trial 5/28/2013. The state is seeking to exclude expert witnesses paid for by Central Boiler, the manufacturer of the two hydronic heaters above, out of the trial. Central Boiler built the two units and has much to lose by the evidence of harm already in court records.

Link: CourtView to follow Alaska v. Straughn, also called the Woodriver case, case number 4FA-13-01205CI

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News-Miner reporting reaches new levels of one-sided reporting and incompetence.

In a story, uncorrected as of today, references “removed”:

“The wood boilers at the Straughn property, which Walleri said were removed from the property, had stickers showing they complied with Environmental Protection Agency regulation, but Walleri claims in practice, they weren’t.” Attorney says manufacturer, retailer share blame for wood boiler pollution 6/26/2013 FDNM

In today’s story, the reporter notes he was told by Michael Walleri, the attorney for the Straughns, defendants in the Woodriver case, that the outdoor wood-burning hydronic heaters were “dismantled”:

‘The News-Miner incorrectly stated in a previous story that the boilers had been removed as of Tuesday. Walleri had said the boilers had been “dismantled” and were in the process of being removed.’ State faults wood stove owners for years of pollution 6/27/2013 FDNM

Then, today’s article includes the current status of the boilers according to the attorney for the state, Seth Beausang, “unplugged”:

‘Beausang said that a recent DEC inspection of the boilers found they had only been “unplugged” and could be made operational without much time or effort.’ State faults wood stove owners for years of pollution 6/27/2013 FDNM

Since when does “unplugged” mean “dismantled”? How easy is it to flat-out lie to a reporter? As easy as it is to lie to a judge and jury?

Mr. Walleri should be ashamed. Central Boiler, the boilers’ manufacturer, should hire themselves another attorney.

Come on Fairbanks Daily News-Miner! People believe what they read in the paper. The defense in Alaska v. Straughn is playing the paper like a fiddle, fabricating fiction for potential jurors and positioning themselves for a beneficial settlement.

Missing from the pages of the News-Miner’s years of coverage on these poisonous boilers are interviews from victims with a description of how they have been harmed by Straughns’ smoke.

Judge Robert Downes listened to the victims. Why won’t the News-Miner? Balanced coverage and ethical journalism demand it.

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In a bizarre presentation last night, attorneys for the defendants in the Woodriver case painted their clients as innocent victims. As a civil trial, all the defendants need is a majority of the jury. Scapegoating the state and manufacturer of the boilers may be all they need to get off if the case goes to trial. The trial is scheduled to begin September 16.

According to an attorney for Andrew and Gloria Straughn, the defendants in the Woodriver case:

“Even if the Straughns have some fault in this, other people including the manufacturer, wholesaler and retailer knowing these products, they share fault,” he said. “Where is the state of Alaska in defending the people from snake oil salesmen who are coming up here and selling them defective products.” Attorney says manufacturer, retailer share blame for wood boiler pollution 6/26/2013 FDNM

When asked, the attorneys wouldn’t answer who paid their fees. Likely it is Central Boiler, the manufacturer of the hydronic heaters. According to NESCAUM, Central Boiler has paid attorneys and given cash settlements to seal court records in other cases involving Central Boiler wood-burning boilers.

It is inappropriate for the Air Pollution Control Commission to enable a cowardly legal defense strategy designed to let Fairbanks’ most notorious smoke polluter off the hook.

Residents submitted a letter requesting the presentation be removed from the agenda. Commissioners ignored the request:

Link: 43 People Request APCC to Remove Attorney for Defendants in Woodriver Case from Agenda

Here is the news release on the letter:


Citizens Request Commissioners Remove Presentation by
Attorney for Defendants in Woodriver Case from their Agenda

Fairbanks, Alaska – June 25, 2013 – 43 citizens and organizations submitted a letter to a local air pollution commission requesting them to remove a presentation from their agenda. An attorney for the defendants in a highly publicized public nuisance air pollution case, often called the Woodriver case, is scheduled to give a presentation at the meeting later today.

According to the letter, the 15-minute presentation from Michael Walleri violates the powers and duties of the Air Pollution Control Commission.

The signers stated that there is no interest served by Mr. Walleri’s report other than to influence the outcome of the upcoming trial and bias the jury pool demanded by his clients.

It is the right of any citizen to speak for 3 minutes during Citizen Comments, but it is inappropriate to give special treatment and a platform to individuals established to have caused public nuisance air pollution, stated the signers in the letter. Link to 6/25/2013 APCC agenda.

In addition, the letter stated, the APCC should responsibly and “fully investigate nuisances, health hazards and other harmful effects” that led up to the Woodriver case, but that Mr. Walleri’s presentation does not constitute an “investigation” per FNSB Chapter 2.48.120.

Bethany Russell, who signed the letter, gave this statement:

“As a person raising a family in the Fairbanks-North Pole area, I am dismayed at our local government’s lack of concern for our air quality and our health. Children need to be able to breathe clean air in our schools and community.”

A copy of the letter was submitted to members of the Commission, Mayor Luke Hopkins, FNSB Transportation Director Glenn Miller, and FNSB Air Quality Specialist Dr. Jim Conner. Link to letter: 43 People Request APCC to Remove Attorney for Defendants in Woodriver Case from Agenda

Alaska v. Straughn was filed by the state of Alaska in Superior Court January 3, 2013 and is scheduled for trial September 16, 2013 at 8:00 am. A “Demand For Jury Trial” has been submitted on behalf of the Straughns. Case number 4FA-13-01205CI CourtView.

February 4, 2013, Judge Robert Downes ruled “the operation of the defendants’ outdoor wood boilers has proven to be a public nuisance.” Link to order by Judge Downes.

One of the attorneys representing the defendants in the case is Michael Walleri.

Andrew and Gloria Straughn have two outdoor wood boilers across the street from Woodriver Elementary School in Fairbanks. This is the state’s first public nuisance case against an owner of a hydronic heater, also called an outdoor wood boiler.

Agencies have received hundreds of complaints against the smoke from the Straughns’ burners. Link to 20 affidavits and other court documents.

Reporters may wish to ask Mr. Walleri how many doses of Albuterol he took after visiting Woodriver Elementary in 2011 and who pays his fees.


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