Has Spare the Air Spared the Penalty and Raised a Constitutional Question?

On July 9, 2008, the Bay Area Air Quality Management District (BAAQMD) adopted "a regulation that makes it illegal to burn wood or firelogs in household fireplaces and woodstoves" on Spare the Air days and nights. (1). Regulation 6 Rule 3, "limit[s] emissions of particulate matter and visible emissions from wood-burning devices." (2). These limits are in effect during the months of November through February as declared on a day-by-day basis by the BAAQMD. (3). The BAAQMD posts the wood burning status by noon each day on its Spare the Air website. (4). The news media, which publicly reported the regulation, also reports the Spare the Air declarations of the Air Pollution Control Officer. (5).

This article does not dispute the need for the regulation. "[F]ireplace and woodstove burning … make up 30 percent to 40 percent of soot emissions." (6). By one estimate, one million wood-burning fireplaces produce about ten tons of lung-trashing particles and gases per day during the winter months. (7,8). At this rate, the "estimated 1.4 million fireplaces and wood stoves in the nine-county district" kick out 14 tons of this pollution per day. (9).

The BAAQMD and the regulation have practical flaws and constitutional issues. Once the district declares a Spare the Air day, the public must proactively determine the legality of burning wood that afternoon and evening. At least one organization has noted that morning newspapers and other morning reports cannot report a Spare the Air day "because the air quality district doesn't decide until noon to declare a 24-hour no-burn period." (10). Undoubtedly, there are people who cannot access public media that day. As such, the regulation is burdensome to these people. While there is an exemption from the regulation for people lacking another source of heat, stopping the activities of a busy family to learn if a morning fire has become illegal may be a problem. (11).

The next flaw is that the BAAQMD has limited enforcement capacity. The BAAQMD has about 70 inspectors to cover its year round routine work of the commercial and residential sites in the district. (12). These inspectors must also handle responding to calls of winter wood-burning violations as well. (13). With so few inspectors, the BAAQMD has to ask the public to report "wood smoke concerns in their area." (14). This reliance on neighborhood informers was evident early on with the first Spare the Air days, when nine violators received warning letters, and "[s]ix of the nine violators were reported by neighbors." (15).

In addition, the BAAQMD has led people to believe that it has banned wood burning entirely on Spare the Air days. (16). In fact, the regulation only bans wood burning that produces more than a certain level of smoke. (17). People calling in the mere smell of smoke are potentially calling in a false alarm. With a limited number of inspectors, this quasi-policing policy is creating unproductive work for the district. The BAAQMD acknowledged the problem when it received 50 complaints but issued only six warnings on the first Spare the Air day. (18).

The next flaw is in the purported standard. Under the regulation, a violation occurs if the smoke from a wood-burning device exceeds "No. 1 on the Ringelmann Chart or 20 percent opacity for … more than six consecutive minutes in any one-hour period." (). For those persons unfamiliar with measuring the density of smoke from oil or coal-fired power plants, the Ringelmann Chart, and its opacity test, is a series of rectangular grills of black lines on paper published by the Bureau of Mines that an inspector holds up while eye-balling a smoke plume to determine the approximate combustion efficiency of the power plant. (20). The method of determining a measurement is so subjective, that even the Bureau of Mines admits that use of the Ringelmann Smoke Chart is empirical in nature with many limitations, although "it gives good practical results in the hands of well-trained operators." (21). With fines of possibly "several thousand dollars," we can only hope that the BAAQMD inspectors have reflective-laser reliable eyesight. (22).

The final flaws in the regulation relate to the purported penalties. To enforce penalties depriving a person of property or liberty, such as fines or jail time, the government must give advance notice that an act was illegal at the time committed, and the government must give advance notice of the severity of the penalty in relation to the regulated act. (23). Concisely, a person must have reasonable access to know in advance the proscribed act and the penalty.

BAAQMD, however, has not published the fine schedule, so the public does not actually know how BAAQMD will assess fines. (24). Regulation 6 Rule 3 lacks a provision for a penalty, none of the other regulations cite it, and the BAAQMD web site titled, "New Wood Burning Regulation 6, Rule 3: Wood-Burning Devices" merely states that "wood burning [is restricted] when air quality is unhealthy and a Spare the Air Advisory is issued." (25). The web site at www.sparetheair.org refers back to the Wood-Burning Devices page "for more information." (26). An email sent on December 13, 2008 to Susan Adams, the Assistant Counsel for the District Office Bay Area Air Quality Management, recounted a review of the regulations listed in the bibliography below. The email stated that the review of the regulations was "unable to locate the regulation providing the fine schedule. Please provide the name of the regulation providing for the fine schedule, and if possible, a link to, or copy of the regulation." She did not reply. On January 28, 2009, a couple of very nice people at the District Office of BAAQMD confirmed that there is not a written fine schedule for the public to view. A voice message was also left then for Ms. Adams, but she has not returned the call. For BAAQMD to impose fines without public knowledge of the fine schedule violates the due process requirement, and as shown below, other provisions of the Constitution.

The next flaw with the regulation is the amount of the fines. According to BAAQMD's CEO, the fines will be set to match the severity of the problem, with "some offenders [getting] little or no fine if the circumstances merited." (27). The constitutional issue here is that, as BAAQMD admits, "a $50 fine isn't enough to deter repeat offenders, [so] subsequent violations [will be] punished with fines of hundreds or even thousands of dollars." (28). Thus, some wood burning would be legal, but a violator would not know whether the fine for a repeat violation would be in the hundreds or the thousands of dollars until receiving a notice of violation. Such significantly high fines violate the proportionality requirement of the Eighth Amendment of the U.S. Constitution unless the penalty is clearly applicable to the crime of burning wood in a fireplace. (29).

This is not to argue that having penalties for violating the wood-burning regulation is unconstitutional. The air quality districts around Sacramento and the South Coast regions have properly worded penalty regulations. Rule 445 (h) of the South Coast Air Quality Management District clearly sets fixed fine penalties or constitutional alternatives. (30). Fines in other jurisdictions are similarly reasonable. (31). The issue here is that BAAQMD lacks a readily available fixed fine schedule and may impose arbitrary and discretionary penalties. That is unconstitutional.

The legislature has authorized BAAQMD to assess fees and fines through the Health and Safety Code. The misdemeanor penalties applying to air quality, however, are for outdoor fires, the burning of waste and for toxic pollution sources. (32). At worst, a fireplace or wood-burning stove that spews emissions (smoke) over No. 2 on the Ringelmann Chart and that causes actual bodily injury can carry penalties of $15,000 to $100,000 and jail time of up to one year, depending on the severity of the actual injury. (33). The lesser misdemeanors of §§39000 to 41500 are punishable by "a fine of not more than one thousand dollars ($1,000) or imprisonment in the county jail for not more than six months, or both."(34). These penalties have been law for some time. The legislature did not intend BAAQMD to threaten the public inside their homes with substantial fines "in the thousands of dollars" for merely staying warm next to an indoor fireplace or a wood burning stove. (35).

If anyone wants to challenge BAAQMD on the word-burning regulations, there is a likelihood of success in a procedural due process challenge. The substantial penalties circulated by BAAQMD in the public media are outside the range of the legislation and are arbitrary and capricious. Despite the amount of harm that burning wood in a fireplace or wood burning stove might cause, the BAAQMD would violate due process and the Eighth Amendment for imposing penalties in the thousands of dollars without a well-written and published regulation or fact-related legislation. (36).

Bibliography
The following regulations were reviewed in preparation for this article.
--General Provisions & Definitions - (http://www.baaqmd.gov/dst/regulations/rg0100.pdf).
--Notice to Comply - (http://www.baaqmd.gov/dst/regulations/rg0102.pdf).
--Permits - General Requirements - (http://www.baaqmd.gov/dst/regulations/rg0201.pdf).
--Fees - (http://www.baaqmd.gov/dst/regulations/rg0300.pdf).
--Open Burning - (http://www.baaqmd.gov/dst/regulations/rg0500.pdf).
--Particulate Matter - General Requirements - (http://www.baaqmd.gov/dst/regulations/rg0601.pdf).
--Wood-burning Devices - (http://www.baaqmd.gov/dst/regulations/rg0603.pdf).
--Users Guide - (http://www.baaqmd.gov/dst/regulations/users_guide_regs.pdf).

Footnotes
1. Welcome! Bay Area Air Quality Management District. http://www.baaqmd.gov/. *Viewed and saved February 7, 2009.
2. Regulation 6-3-101. Adopted July 9, 2008.
3. Regulation 6-3-301. Adopted July 9, 2008.
4. Winter Spare the Air Program, Bay Area Air Quality Management District. http://sparetheair.org/. *Viewed and saved February 7, 2009.
5. Regulation 6-3-203. Adopted July 9, 2008.
6. Mike Taugher. "Duraflame sues over fireplace restrictions." Contra Costa Times. January 27, 2009. Available at: http://m.contracostatimes.com/contracosta/db_10589/contentdetail.htm. *
7. Daniel Tedford. "Air quality officials want wood-burning fireplace out of the home." Inland Valley Daily Bulletin. October 29, 2008. Available at: http://www.dailybulletin.com/ci_10843491. *
8. FN6, Taugher, supra.
9. "Letting everyone know is crucial to success of no-burn days." Marin Independent Journal. February 3, 2009. Available at: http://www.marinij.com/opinion/ci_11615634. *
10. Id.
11. Regulations 6-3-110, -111, -112. Adopted July 9, 2008.
12. Compliance and Enforcement Division, Bay Area Air Quality Management District. http://www.baaqmd.gov/enf/index.htm. *
13. Denis Cuff. "First Bay Area burn violators get warnings." Contra Costa Times, November 20, 2008. Available at: http://www.contracostatimes.com/ci_11036070. *
14. FN4, sparetheair.org, supra.
15. FN13, Cuff, supra.
16. Wood Burning Rule Compliance. Bay Area Air Quality Management District. http://www.sparetheair.org/about/wbrulesummary.htm *
17. Regulation 6-3-302. Adopted July 9, 2008.
18. Christopher Heredia, "Wood burning banned today across Bay Area," S.F. Chronicle, Nov. 25, 2008. Available at:
http://www.valleyair.org/Recent_news/News_Clippings/2008/In%20the%20News%2011-25-08.pdf.
19. Regulation 6-3-217. Adopted July 9, 2008.
20. Ringelmann Smoke Chart, Information Circular 8333, Revision of IC 7718, By Staff, Bureau of Mines (May 1967), pages 1-2. Available at: http://www.cdc.gov/Niosh/mining/pubs/pdfs/ic8333.pdf. The Ringelmann chart was already old in Europe when adopted by the USA in 1897. Why BAAQMD still uses such archaic technology in Silicon Valley in this high-tech era is not clear.
21. FN20, Ringelmann, supra.
22. FN6, Taugher, supra.
23. Unites States v. Booker, 543 U.S. 220 (2005). ((Holding that the statute mandating courts to follow the Federal Sentencing Guidelines violated the Sixth Amendment because "the statutes put a potential federal defendant on notice that a judge conceivably might sentence him anywhere within the range provided by statute." J. Breyer, dissenting). (Emphasis added). (N.B., See Footnote 6 to Justice Thomas's dissent in part on the commentary to statute §6A1.3, at which the Court notes the Guidelines violated due process with a mistaken belief in the burden of proof).)
24. Denis Cuff. "Fireplace ban, fines effective today." Oakland Tribune. FindArticles.com. October 31, 2008. Available at: http://findarticles.com/p/articles/mi_qn4176/is_20081031/ai_n30969996. *
25. New Wood Burning Regulation 6, Rule 3: Wood-Burning Devices, Bay Area Air Quality Management District, http://www.baaqmd.gov/enf/woodsmoke/woodsmoke_portal.htm. * (The word "advisory" is a clue that the BAAQMD knows the penalties are just smoke.)
26. See the bibliography for the list of regulations and articles reviewed in the attempt to find the fine schedule.
27. FN24, Cuff, supra.
28. FN24, Cuff, supra.
29. Furman v. Georgia, 408 U.S. 238, 249 (1972) ("A penalty . . . should be considered `unusually' imposed if it is administered arbitrarily or discriminatorily." (quoting Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773, 1790.))
30. South Coast Air Quality Management District, Rule 445, Wood Burning Device, §(h) Penalties. Adopted March 7, 2008. Available at http://www.aqmd.gov/rules/reg/reg04/r445.pdf.
31. FN24, Cuff, supra.
32. See Cal. Health & Safety Code §41700, et. seq., §41800, et. seq., and §42400 et. seq.
33. Cal. Health & Safety Code §42400 et. seq.
34. Cal. Health & Safety Code §42400(a).
35. FN24, Cuff, supra.
36. United States v. Jordan, 256 F.3d 922 (9th Cir. 2001). (holding when a sentencing factor has extremely disproportionate effect on the sentence relative to offense of conviction, due process requires that government prove the facts underlying the enhancement by clear and convincing evidence).