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Smoke Got in Their Eyes, And Now There’s a Law

By Richard Brenneman
Thursday October 16, 2008 - 09:44:00 AM

The persistent efforts of 30 to 40 Berkeley neighbors have given Berkeley a new law, one that proponents say promises relief from a chronic, unhealthy and all-too-frequent menace. 

The neighborhood threat targeted by the recently passed ordinance? The particulate emissions otherwise known as smoke. 

If you’re building a new home in Berkeley these days (market peregrinations notwithstanding), there’s one thing you can’t have—a feature that attracted loving attention from such stellar architects as Julia Morgan and Bernard Maybeck. 

In Berkeley, it seems, you simply can’t build an open hearth fireplace. If you want one, you have to buy a house built before the city’s ban, enacted in January 2003. Otherwise, you’re limited to wood stoves and fireplace inserts that meet federal requirements. 

That ban resulted from the efforts of the Community Environmental Advisory Committee (CEAC)—the same council-appointed citizen body that proposed the new smoke ordinance. 

CEAC, in turn, was acting on the basis of a 1999 request from the San Francisco Bay Area Air Quality Management District (BAAQMD) urging local jurisdictions to enact wood smoke regulations. 

It’s existing fireplaces—or rather their emissions—that are the targets of the new legal process, one that transforms a physical and experiential nuisance into a Berkeley legal process. 

The neighbors targeted by the new ordinance are heavy users of open hearth stoves, as well as those who use approved wood stoves—usually in the form of fireplace inserts—in ways that result in emissions above the standards set by the Environmental Protection Agency. 

While both the state Air Resources Board and BAAQMD have enforcement programs that target wood burners who fail to comply, several problems confront residents plagued by noxious neighbors. 

“Right now, neighbors have no recourse,” said CEAC Chair Jason Kibbey when he presented the committee’s ordinance to the council on Sept. 23, noting that “most of these problems occur after 5 p.m. or on weekends, times when the BAAQMD is very unlikely to send someone out.” 

Another problem might be called the nostalgia factor, the cumulative effect of all those pleasant memories conjured up by the smells, sight and sounds of a roaring fire on a cold night or a festive holiday—call it the “chestnuts roasting on an open fire” factor. 

According to the staff memo that accompanied the measure to the city council, “there is general acceptance of smoke as an entirely acceptable form of pollution if it emanates from a chimney but not from a cigarette or from a vehicle exhaust tailpipe. People who complain of adverse health effects from wood smoke are generally dismissed by society and redress becomes difficult, if at all possible.” 

While EPA-compliant stoves are limited to spewing out 7.5 grams of soot per hour, the report stated, “Non EPA-compliant wood burning devices typically emit up to 10 times this level of particles.” 

Open hearth fires, which lack the catalytic converters and other technologies embodied in the federally approved stoves, are the worst offenders, but even in the stoves that have earned Uncle Sam’s blessing, noxious output can come from improper operation and from burning the wrong things, such as green wood and trash. 

While the state and regional laws define violations in terms of measured emissions of particles, meeting those standards requires equipment and technological savvy beyond the likely reach of neighbors, so CEAC decided on an alternative course, using the conflict resolution model already incorporated into the city’s tree ordinance. 

“What this is, is just a process,” Kibbey told the council. “What it is not, is a step creating smoke cops ... It is simply a way so that if there is a complaint, there is a process. If there is no complaint, there is no problem.” 

The ordinance poses no threats for most Berkeley residents who lay on the occasional fireplace blaze, he said. “It will be an issue for the 30 to 40 people that call the city” every winter “to complain about wood smoke inhalation from their neighbors, and they’re finding themselves with no recourse and no way to solve this problem.” 

CEAC, which includes Lawrence Berkeley National Laboratory scientist Robert Clear among its membership, took on the task of defining the standards for enforcement of their ordinance, running a thousand computer simulations to model fireplace smoke-dispersion patterns. 

Those calculations yielded a figure embodied in the new ordinance, which states that half of the people living 120 feet downwind from a fire burning in a non-EPA certified hearth could be exposed to unhealthy levels of smoke. 

The radius includes all adjacent and cater-corner homes, including at least two or three homes across a typical residential street. 

And at its worst, on a still air day, anyone within 40 feet of a noncompliant hearth can receive the state-regulated maximum particulate exposure within 15 minutes, Clear told the council. At 120 feet—the figure established by their new ordinance—approximately half the residents would exceed the maximum exposure in three hours. 

Those neighbors include people like Madelyn Landau, who told the council that she suffers from allergic asthma triggered by wood smoke. 

“I guess I’m one of those 30 or 40 people. There are two other people in my household who also have problems,” she said. “I myself have been sent to the emergency room a couple of times” because of a neighbor’s fires. 

While city Planning Director Dan Marks had given a qualified endorsement to the CEAC proposal in a memorandum to the council, he had cautioned that city staff “has a general concern that any code which gives authority to complain against a neighbor may enable disputes and litigation.” 

But Landau said that “based on three years of experience involving eight households where we have tried to mediate with this fellow, I would say quite the opposite.” 

And despite his concerns, Marks concluded in his reports that “given the serious concerns with the adverse health impacts from wood smoke expressed by the Commission and the limited action from the BAAQMD, the proposed ordinance provides a tool that may be useful in some cases.” 

The only voice of opposition came from Councilmember Darryl Moore, who abstained from the otherwise unanimous vote that approved the new statute. He said he was concerned that the council’s discussion had been scheduled late in a long session, and because few people had attended CEAC’s discussions of the ordinance. 

He urged his colleagues to delay action until they could hold a full discussion and public hearing, but in the end could only abstain while his colleagues endorsed the ordinance. The measure appeared as a consent calendar item when it came back for its final vote Oct. 7. 

Acting City Attorney Zach Cowan told councilmembers how the law will work before the Sept. 23 vote. 

“You have to allege and eventually demonstrate that the neighbor you’re complaining about is either using a noncompliant wood-burning appliance or that they’re using a compliant one with improper fuel. So that’s some level of burden,” he said, referring to the burden of proof required to prevail in a court case. 

Before reaching a trial court, neighbors would first have to try to resolve the issue among themselves, and failing that, would have to offer the smoky neighbor the opportunity to resolve the dispute through arbitration. 

If the neighbor refuses arbitration, then the neighbors could file a nuisance action through the civil court system. 

“It’s ultimately going to be that person’s judgment as to what’s an appropriate remedy,” Cowan said, referring to the arbitrator or judge charged with resolving the case. 

He offered as possible resolutions could include orders to burn not more than three hours a day or to not burn at all on still air days. 

The new law and the CEAC report are available online in a single document file at 

Passage of the new law doesn’t mean CEAC has finished with smoke. Next up on their particulate agenda? Barbecues.