Twenty newly released sworn affidavits reveal chilling evidence of injuries and harm attributed to two wood-fired hydronic heaters across the street from Woodriver Elementary School. Affidavits were submitted by agencies, representatives of the school, teachers, other school staff, and neighbors. These public records were released by the clerk of the court, (907)452-9277.
20 Affidavits for the State, filed 1/31/2013 [New!]
Complaint from the State, filed 1/3/2013
Answer to Complaint from Defendants, filed 1/29/2013 [New!]
Preliminary Injunction Order, ordered 2/4/2013
State v. Straughn (Alaska Superior Court, filed 1/3/2013). Follow on CourtView: case number 4FA-13-01205CI, plaintiff – State of Alaska Department of Conservation, defendants – Andrew and Gloria Straughn
The Woodriver affidavits are a window into the horror and dismay of residents under this drawn-out assault on their lives, health, and children as bureaucratic disregard and anti-regulation ideology from the state’s highest levels of government failed to act.
As citizens, we reported it as if you would report a crime—naively believing that they would hear that complaint and take action, just like as if you’d called the police. Here I am 4½ years later, as are others, wondering why it took that long…. Bring it to the public’s attention that we have been hurt by this. We have been made sick by this. —Dawn Brashear, Woodriver staff, 3/4/2013
The following Clean Air Fairbanks report applies the evidence from the Woodriver case to advocate for victims of hydronic heaters and hold those responsible accountable for their injuries.
The Crime of Smoke at Woodriver
State v. Straughn, case number 4FA-13-01205CI, was filed in Superior Court January 3, 2013. The civil case led to a preliminary injunction order February 4, 2013 that found Andrew and Gloria Straughn’s two wood-fired hydronic heaters located across the street from Woodriver Elementary School caused a “public nuisance” and ordered their operation to cease. Woodriver Elementary School is located in the Fairbanks neighborhood of University West. This historic case is the first and only enforcement action the state has taken to reduce fine particulate pollution in Fairbanks North Star Borough, and the only action raised against a hydronic heater in Alaska.
Penny Dean, Woodriver neighbor, waits to testify on March 9, 2010
The twenty affidavits now in public court records document grave harms including multiple asthma attacks in children, reduced lung function, eye irritation, chronic steroid treatment, chronic infections, surgeries, and hospitalizations. One affiant reports being reduced to 20% lung function. Local news reports another affiant died of a stroke.
The affidavit of Ali Hamade, PhD, environmental health program manager for the Alaska Department of Health and Social Services states: “Numerous studies have shown that exposure to the concentrations of PM-2.5 that have been measured at the Woodriver School could result in the following health impacts: aggravated asthma; chronic bronchitis; reduced lung function; irregular heartbeat; increased hospitalizations and emergency room visits for respiratory and cardiovascular diseases; non-fatal heart attacks; and premature death in people with heart or lung disease.”
Dr Hamade’s affidavit references a 2010 study by Rachel Kossover, MPH, RD, with the Division of Public Health Epidemiology Section on the association between PM 2.5 and Fairbanks hospital admissions. 5,718 hospital visits were analyzed. The mean 24-hour PM 2.5 level was 20.1 μg/m3. The study revealed that each 10 μg/m3 increase in PM 2.5 concentrations resulted in a 7% increased risk for stroke-related hospital visit for people under age 65; a 6% increased risk for stroke-related hospital visit for people 65 years or older; and a 6% increased risk for a respiratory illness-related hospital visit for people under age 65.
The state delayed enforcement for 4½ years as it mustered up the will, while the evidence of injury mounted. Installed and first operated in the fall of 2008, the boilers received their first complaints at that time. Residents made every effort to stop the smoke and reduce the harm: requests to the owners; 358 complaints to agencies (42% identify the boilers as the source); public hearing testimony; protests; backing seemingly responsive candidates; and appealing to voters with the citizens’ initiative Proposition 2 in October 2011 by Healthy Air Now for Prop 2. Other efforts included agency communications with the owners, dozens of DEC Air Quality Advisories, a Borough offer to remove the boilers for $7,500 each, and installation of a school air filtration system in February 2011. (Woodriver’s air filtration system cost about $67,500, according to the affidavit of Principal Grant Guy.) Over the years, State Representative Tammie Wilson (R-North Pole) encouraged the owners to take steps to reduce the smoke. The owners tried taller chimneys, split wood, and free installation of two $2,395 ClearStak CS-100 electric retrofit afterburners in December 2010. Nothing worked. Reports of the smoke continued until February 14, 2013, when the owners finally ceased operation of the hydronic heaters in compliance with the preliminary injunction order.
>> Link: Compare Woodriver Smoke Maps Before and After Court Order
>> Link: 140 air pollution complaints, Woodriver Elementary area, 2008-2011
A Community Under Assault from Smoke Pollution
In 2009, the populated area of the Borough was designated in PM 2.5 nonattainment, the only area in Alaska so designated under the Federal Clean Air Act. To meet federal standards, the state was required to file a State Implementation Plan (SIP) by December 14, 2012. The plan is now over 160 days overdue. The state’s failure to submit a SIP risks federal sanctions including loss of highway funds and requirements that will force higher electric rates. Alaska statutes do not allow citations or tickets for air pollution. Thus, the state’s only enforcement option is to take violators to court one-by-one, at substantial expense and delay. On October 6, 2012, local voters approved the citizens’ initiative Proposition 3. The Assembly used the Prop 3 initiative as a referendum to repeal all authority for air pollution control, including the ability to cite or ticket violators.
Recorded PM 2.5 concentrations during the 2012/2013 winter were higher than 500 US cities—higher than all but one city in China, with nearly 9 million residents. In 2012, monitors in the worst hit area, North Pole’s “the Rectangle of Death” (named by agency professionals) recorded 50 days exceeding federal standards. Wood smoke accounts for between 62.7% and 81.2% of winter PM 2.5, according to a 2012 source apportionment study for Fairbanks and North Pole. Often called outdoor wood boilers, hydronic heaters “emit significantly more particulate matter than other residential wood burning devices and short term particulate matter spikes can be extremely high.” (NESCAUM 2006)
In 2013, a FNSB proposal to build Elbasan Acres, an elementary school and 200-home subdivision on 634 acres of Borough land in North Pole, has received significant opposition. Residents objected to the danger of siting a school in an area known to have one of the highest concentrations of fine particulate pollution in the nation. Residents also objected to the harm to private property owners from swamping an already-saturated real estate market. On Nov 18, 2012, School District Superintendent Pete Lewis endorsed the site for two schools:
A portion of the proposed Elbesan (sic) Acres school site should work well for a new elementary school. The remaining dedicated property could conceivably serve as a secondary school site if one is needed in the future.
Although not consulted by the Borough, Jim Conner, PhD, director of FNSB’s air quality program, acknowledged the area’s high air pollution levels and raised concerns it will interfere with meeting attainment goals:
This development (Elbasan Acres) is very close to an already polluted area and will likely contribute to more wood/coal smoke in the borough non-attainment area. —James Conner 4/16/2013
To oppose Elbasan Acres, Jeanne Olson, DVM, appealed the plan in February. On May 30, the FNSB Planning Commission denied the appeal, 5 to 2. Dr Olson has until June 3 to file an appeal in Superior Court. Contact her to offer support: Jeanne Olson <corvi@mosquitonet.com> (907)488-8800.
The example of Elbasan Acres shows the Borough’s continuing disregard for any responsibility to protect public health or provide safe schools for our children. The Woodriver case teaches us we cannot passively wait for agencies to step forward to solve the epidemic of harm from hydronic heaters. Evidence of injuries is now in court evidence. Evidence of the lack of effective alternatives to enforcement is now in court evidence. Causing permanent injury to innocent victims, in reckless endangerment of our health and safety with knowledge that death or serious harm will result, is criminal and should be prosecuted as such. Saving money is not a defense, but motive. Civil liability for the injuries and lack of responsible and timely action by responsible parties weigh heavily on owners, the school district, FNSB, and the state. It is time insurers recognize the risk of carrying policies on properties with hydronic heaters. It is time to apply pressure with strategic focus to force government to stop protecting polluters of the air we need to breathe and to take responsible action to prevent the harm.
The worsening plague of smoke pollution in Fairbanks and North Pole has led to a rash of news stories in the The Los Angeles Times, Reuters, Time, NPR Science Friday – text and audio, Alaska Dispatch, and KTUU, and repeated coverage in the Anchorage Daily News, AP Wire, APRN, KUAC, and the Fairbanks Daily News-Miner.
Clean Air Fairbanks 
Take Action: Comment for Clean Air on Draft State Rules
Posted in ADEC Proposed Regs for Fairbanks, State Responsibility & Regulations, Take Action for Clean Air, tagged air pollution regulations, Alaska DEC air pollution control draft regulations, Fairbanks Alaska, North Pole Alaska, PM2.5 regulations, public comment on state air quality regulations on October 10, 2013| 5 Comments »
Don’t wait! Send your comments for clean air NOW!
*NEW* Download post as DOC file: Take Action: Comment for Clean Air on Draft State Rules.DOC
Edit and submit by email or attach to online form #8 General Comments.
Online Comment Form:
https://dec.alaska.gov/Applications/Air/airtoolsweb/FormalComments
Comments also accepted by mail, email, and fax.
Scott Sloane, Division of Air Quality, 410 Willoughby Ave #303, Juneau, AK 99801
Scott Sloane <scott.sloane@alaska.gov>
Please CC <cleanairfairbanks@gmail.com>
(907)465-5129 fax
Comment deadline: Jan. 23, 2014.
Draft (to strengthen): Proposed Air Quality Control Regulation
Existing regulations: Alaska Air Quality Control Regulations
State webportal: http://dec.alaska.gov/air/anpms/comm/fbks_pm2-5_proposed-regs.htm
Important: Has air pollution cost you money? Comment on how you’ve been harmed financially and check the “fiscal impacts” boxes. Also, submit evidence such as receipts, letters from your doctor, number of days you missed work each year, list your expenses caused by air pollution including medical costs, cost of air filtration systems, masks, missed workdays, etc. State law requires agencies to “pay special attention to the cost to private persons of the proposed regulatory action.” AS 44.62.210.
Section Numbers Correspond to Online Form Fields:
1. 18 AAC 50.065(f) prohibits open burning in PM2.5 nonattainment areas between Nov 1 and March 31. (Currently, Fairbanks is the only such area in Alaska.)
Amend: Open burn prohibition should start October 1, not wait until Nov 1. Open burning in October 2011 caused a PM2.5 nonattainment violation.
2. 18 AAC 50.075(b) removes the prohibition against operating a wood-fired heating device during an air pollution episode and makes the declaration of any prohibition a discretionary act of the Alaska Department of Environmental Conservation.
Oppose: Do not weaken weaken air quality protection statewide by making state response to high levels of air pollution optional. The proposed change weakens current regulations by allowing DEC to ignore the numbers, regardless of how high air pollution levels rise. DEC says the proposed rule allows “flexibility” to respond area by area, but, in fact, DEC would get flexibility to not respond at all. The proposal ignores the fact that Fairbanks is in an airshed. When there is a strong inversion, all sources, even if not located in a low area, contribute to the poor air quality.
Amend: Revise to read “A person may not conduct open burning or operate a waste oil burning device, solid fuel-fired heating device, or incineration device in an area for which the department has declared an air pollution episode under 18 AAC 50.245.” Health needs and attainment can’t be met without cutting smoke from high polluting devices. Black smoke is commonly seen coming from waste oil burners associated with oil change businesses and car sales lots. An incinerator owned by a business on Chena Pump Road, a heavy smoke area, frequently adds smoke to the mix. These devices should not be operated during air pollution episodes.
Amend: Revise to lower the allowable level of opacity from a wood-fired heating device from 50 percent to 20 percent (or less) and remove “in an area for which an air quality advisory is in effect.” 20 percent opacity limits are commonly used in other communities to protect health and meet attainment goals.
3. 18 AAC 50.076 adds new section restricting materials allowed to be burned in a solid-fuel heating device in the Fairbanks PM2.5 nonattainment area.
Amend: Prohibit burning wood over 20 percent moisture content. Burning wet wood makes excessive smoke.
Amend: Prohibit burning any material not intended by a manufacturer for use as a fuel. Burning the wrong fuel in a heating device voids the warranty and can cause explosions and chimney fires, serious safety and liability concerns.
Amend: Prohibit burning any material that when combusted generates noxious, poisonous, or injurious fumes.
Amend: Limits on prohibited fuels are needed statewide to protect health, not just in the seriously polluted Fairbanks PM2.5 nonattainment area.
4. 18 AAC 50.077 adds new section to establish emissions limits for new wood-fired heating devices, including hydronic heaters and woodstoves, that are manufactured, sold, or installed within nonattainment areas.
Amend: Delete subsection (4)(B) so that nonqualified solid fuel-fired heating devices and waste oil burners must be removed when real estate is sold. Woodstoves and boilers can last decades. No one wants nonattainment to last that long. Better yet, require all devices to meet the new standards. Grandfathering existing devices will not help neighborhoods where air pollution levels are already high.
Amend: Two revisions of EPA’s test procedure are needed. 1) Apply the rate limit so that no emission spike exceeds 2.5 g/hr limit during any individual test run. 2) Require cordwood models to be tested with cordwood, not lumber.
Amend: Add subsection to prohibit installation of solid fuel-fired heating devices not meeting 18 AAC 50.077. This would prohibit installation of new coal burning devices. Otherwise, the new regulations favor installation of coal heaters over wood.
5. 18 AAC 50.245(a) Table 6 adds PM2.5 level that triggers the three levels of air quality episodes: alert, warning, and emergency.
Amend: Set the PM2.5 trigger for Air Alerts to 35 micrograms per cubic meter or lower. The state has proposed to set the trigger at 56 micrograms per cubic meter. Nonattainment violations start at 35 micrograms per cubic meter. The trigger needs to be no higher than 35 to help prevent violations. Alaska must not be the only state in the nation with a trigger higher than 35. Juneau, AK uses 30, Washington State uses 25 and 35, Sacramento, CA uses 31 and 35, and Utah nonattainment areas use 25.
Hospitalization for heart attacks, lung ailments, and strokes increase at levels above 20 micrograms per cubic meter. A lower number better protects health. FNSB 11/29/2012, p 11. Scientific evidence and medical harm support a trigger of 20 micrograms per cubic meter. A level of 56 is cruel because it gives no protection to sensitive groups such as people with heart or lung problems, diabetics, elders, children, and developing fetuses.
Amend: Add section for public notification of Air Alerts. Establish “check before you burn” website, email notifications, toll-free phone number, and other media outlets. Air pollution can continue to increase after an announcement of unsafe levels of air pollution depending on how well the order is communicated and public response.
6. 18 AAC 50.245(a), (b), and (c) give authorized local air quality control programs authority to declare air quality episodes and advisories and to take immediate action.
Neutral. Pro: Local government retains full authority to authorize or not and knows where hot zones are located. Con: Lack of clarity on who is in charge may result in no action during an air pollution event.
7. 18 AAC 50.990 changes the definition of wood-fired heating device. It also adds definitions for clean wood, hydronic heater, solid fuel-fired heating device, and wood heater/wood stove.
Amend: Add definition for curtailment action – “No person shall operate (combust material in) any solid fuel-fired heating device or incinerator or burn waste oil during a curtailment period. Visible smoke from the chimney shall be prima facia evidence of a violation.” Defining and taking action to limit wood burning emissions is vital to the success of any control program. According to Dr Jim Conner, FNSB Air Quality Program Manager, “It is not possible to demonstrate attainment of the PM standard without limiting wood burning emissions on high concentration days.” Conner 2012, p 6.
8. General Comments on the Overall Proposal
Important: Describe how air pollution has cost you money. Check the “fiscal impacts” box and submit supporting evidence on your expenses caused by air pollution. Include medical expenses, air filtration systems and filter replacements, moving expenses, missed workdays, reduced property values, receipts, letters from your doctor, harm to your business, etc. State law requires agencies to “pay special attention to the cost to private persons of the proposed regulatory action.” AS 44.62.210.
Are these rules sufficient to meet attainment requirements in the federal Clean Air Act? These rules must equip DEC with the tools to submit a State Implementation Plan (SIP) meeting meet federal Clean Air Act requirements for nonattainment areas, 42 USC § 7501-7515. These requirements establish that a state shall use, at a minimum, reasonably available control technology and demonstrate reasonable further progress. DEC has not provided sufficient information to the public to determine that these rules will be enough to do the job. If these rules are not sufficient, the rules will need to be strengthened, entailing additional delays on controls and enforcement needed to protect health and meet attainment.
The proposed rules fail to consider control options used in other states and identified in Strategies for Reducing Residential Wood Smoke EPA 3/2013. The state is required by federal law to use, at a minimum, reasonably available control technology (see previous comment).
Action is needed to reduce air pollution now, this winter. Reference the cost information (submitted above). Why wait until 2019 or later to meet PM2.5 attainment? Children’s lungs develop every day. Heart damage can happen in hours. Further, nonattainment is already hurting property values, jobs, and the military. What will be done to end the delays and move forward with effective and enforceable rules to clean the air?
State agencies have authority to take emergency action now, this winter, under AS 44.62.250. Two steps are urgently needed to protect health this winter: 1) Prohibit installation of solid fuel-fired heating devices not meeting 18 AAC 50.077 (#4 above) and 2) Add PM2.5 trigger of 35 micrograms per cubic meter (or lower) to Table 6 in 18 AAC 50.245(a) (#5 above).
Is a new law on the way to provide for enforcement? Current law allows enforcement only through civil filings in court, not citations or tickets. Air pollution enforcement through civil actions will not be timely, cost-effective, or sufficient as a deterrent. The state delayed taking the owner of two hydronic heaters near Woodriver Elementary to court for 4 1/2 years, causing extensive injuries to neighbors, teachers, and students. Once the case was filed, it still took 6 months to be resolved. Without ticketing authority, these regulations cannot be effectively enforced. [See 20 Affidavits for the State, filed 1/31/2013]
Will the state air quality program be revenue neutral and not shift costs to the public? Other communities levy a registration fee for solid fuel-fired heating devices and fine violators.
Are other regulations on the way to limit PM2.5 emissions from power plants, the refinery, commercial and residential coal heating, incinerators, idling vehicles, and cold starts? Wood is the primary winter source of PM2.5, but the proposed regulations fail to control emissions from other sources and promote installation of highly polluting coal heaters.
PM2.5 precursors (such as SOx and NOx) that convert to PM2.5 in the atmosphere are not addressed from these regulations, yet are significant contributors to PM2.5. Coal burned in power plants, stoves, and boilers contribute PM2.5 precursors that interfere with meeting attainment.
Are other regulations on the way to protect air quality inside buildings? People exposed to PM2.5 air pollution inside workplaces, public buildings, homes, and schools are not protected under these regulations. Outside air pollution comes inside buildings. During the winter, most exposure to PM2.5 occurs indoors.
New regulations are needed to protect health outside the designated PM2.5 nonattainment boundary. Neighborhoods outside the nonattainment area face the same high air pollution levels as those inside but are offered no protection by these regulations. Unprotected neighborhoods include: Herning Road, Becker Ridge, Cripple Creek, Spinach Creek, areas off Freeman Road, Ester, and Moose Creek.
New regulations are needed to require labeling of moisture content of wood sold by firewood sellers over a certain size or to set limitations on moisture content for firewood sales.
The proposed regulations need to include an exemption for essential residential heating during a temporary power outage and where a solid fuel-fired heating device is the sole source of heat. Exempt devices must be registered by a cut-off date and upgraded when the property is sold. A exemption for essential residential heating is standard in other states including California, Washington, Nevada, and Utah.
A new definition should be included for “essential heating” to provide for residential heating needs that are absolutely necessary.
The state needs to take an active role in public education to inform residents about the importance of clean air and the effect of new regulations. Better understanding of the health-air quality connection will build public support for reducing PM2.5. Public outreach should also inform residents about state programs such as AHFC and ADHSS-public assistance.
9. Comments on the Public Review Process for this Proposal
The absurdly long, 125-day comment period on the regulations allows more installations of highly polluting devices until the new regulations are finalized. Local government’s change-out program is actively paying for installations of solid-fuel heaters that do not conform with proposed regulations yet will be grandfathered. These new heaters cannot be used during curtailments and may well require a second subsidy to be removed. Is the goal of these rules and the local change-out program to benefit manufacturers and dealers and to further delay needed action for health and attainment?
Will public comments be posted online? A higher level of public engagement will occur if DEC provides links to each comment submitted and to DEC’s response. Modern technology makes it easy for DEC to post comments and responses online, thereby allowing the public convenient and immediate access to the information.
The public hearings, scheduled Tuesday, Jan 21, 2014 from 11:30 am to 1:30 pm in Fairbanks, Anchorage, and Juneau, are inadequate for individuals who work during the day. Please extend the hearing to include evening hours of 5:30 to 7:30 pm.[DEC added a new hearing: 5 to 7 pm on Jan 7, 2014 at Fairbanks Westmark Hotel, Yukon Room – 813 Noble St.]Alaska DEC should ask EPA to comment on these proposed regulations and the draft SIP. The regulations are the foundation for the Fairbanks PM2.5 State Implementation Plan (SIP) to be submitted to EPA by the State of Alaska. The SIP was due Dec 14, 2012. It will only cause further delay to wait for input from EPA until after the SIP is finalized and submitted. If EPA cannot accept the SIP, additional comment periods for new regulations and a revised SIP will be needed, dragging this process out for months longer. Timeline posted by DEC.
We do not support any further delays on submission of the SIP to EPA. The goals of health and attainment need to become priorities in this process.
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