Chapter 8.04
AIR POLLUTION1
Sections:
8.04.011 Purpose.
8.04.021 Definitions.
8.04.031 Unlawful acts.
8.04.041 Open burning.
8.04.051 Variances.
8.04.061 Emergency procedure.
8.04.071 Injunctions – Conditions for seeking.
8.04.081 Chapter enforcement.
8.04.011 Purpose.
The purpose of this chapter is the protection of health and safety, and the prevention of damage to property within Fairbanks North Star Borough. This chapter and any regulations promulgated hereunder are intended to preserve and maintain the purity of the air to a degree that will:
A. Protect human health and safety;
B. Prevent injury to property;
C. Preserve and enhance the quality of our environment and the life of the citizens of Fairbanks North Star Borough;
D. Maintain safe driving visibility. (Ord. 86-075 § 2, 1986)
8.04.021 Definitions.
In this chapter:
“Air contaminant” means dust, fumes, mist, smoke, fly ash, and other particulate matter, vapor, gas, odorous substances, or a combination of these things.
“Assembly” means Fairbanks North Star Borough Assembly.
“Borough” means Fairbanks North Star Borough.
“Commission” means Fairbanks North Star Borough pollution control commission.
“Construction debris” means any waste or unused material resulting from the building, remodeling, construction, addition to or repair of a structure, including but not limited to wood, plastics, rubber, vinyl, insulation, carpet, or metal.
“Director” means the department of transportation director of Fairbanks North Star Borough, or his/her designee.
“Emission” means a release into the outdoor atmosphere of air contaminants.
“Garbage” means any putrescible solid or semisolid animal or vegetable wastes resulting from the production, handling, preparation, cooking, serving or consumption of food or food materials.
“Open burning” means the burning of a material which results in the products of combustion being emitted directly into the air without passing through a stack or flare.
“Person” means any individual, partnership, copartnership, firm, company, public or private corporation, association, trust, estate, or any agency or board, department or division of the borough or the cities contained therein, or any other legal entity.
“Public notice” means notice published in a newspaper of general circulation in the borough at least seven days in advance of the event for which the notice is being given.
“Putrescible garbage” means a material that can decompose and cause obnoxious odors.
“Refuse” means any putrescible or nonputrescible solid waste, except human excreta.
“Smolder” means to burn and smoke without flame.
“Structure” means anything constructed or erected, the use of which requires a location on the ground or under the ground, or attached to something having a location on the ground, composed of parts and joined together in some definite manner.
“Untreated wood” means wood that has been modified from its natural condition only by cutting, breaking, drying or absorption of moisture. Wood or wood fiber that has been painted or artificially impregnated with volatile chemicals does not constitute untreated wood.
“Zone” means a portion of the Fairbanks North Star Borough within which certain uniform uses are permitted and other uniform restrictions as to size, bulk, and location are imposed, as established in FNSBC Title 18. (Amended during 1993 republication; Ord. 86-075 § 2, 1986)
8.04.031 Unlawful acts.
A. No person shall engage in open burning, that:
1. Discharges an air contaminant above public property or above the private property of another person:
a. Which causes or can reasonably be expected to cause a threat to human health or life or to property; or
b. Which unreasonably interferes with enjoyment of life or use of property; or
2. Discharges an air contaminant which presents a safety hazard by significantly restricting visibility for the operation of motor vehicles along a public roadway. For the purposes of this subsection, visibility is considered to be significantly restricted if visibility is less than one-quarter mile along the public roadway. This subsection shall not apply when the presence of uncombined water vapor is the only reason for the failure of the discharge to meet the requirements of this section.
B. No person shall engage in open burning in violation of the limitations in FNSBC 8.04.041.
C. No person shall engage in the open burning of trees, brush, stumps or construction debris within the following areas of the borough, as designated by the land use plan of the borough’s comprehensive plan:
1. Urban area;
2. Urban preferred commercial area;
3. Industrial area.
This subsection shall not apply to:
1. The use of a barrel with one end removed (burn barrel) or any other container less than 20 cubic feet in volume for incineration;
2. The burning of materials in a pile 10 feet by 10 feet or smaller.
D. No person shall engage in the open burning of wire, wire insulation, or sheathing. (Ord. 86-075 § 2, 1986)
8.04.041 Open burning.
A. Open burning is prohibited during the period of November 1st through February 28th, within the city of Fairbanks and the following areas of the borough, as designated by the borough’s comprehensive plan:
1. Urban area;
2. Urban preferred commercial area;
3. Light industrial area;
4. Heavy industrial area;
5. Perimeter area.
This subsection shall not apply if:
1. Such burning is for fire fighting training purposes and is conducted at a recognized fire training facility; or
2. Such burning is for small fires used for personal heating or cooking.
B. Open burning of putrescible garbage, animal feces, or other putrescible animal or vegetable matter is prohibited. This subsection shall not apply to:
1. The disposal of refuse from a single-family dwelling located greater than 10 miles in roadway distance from the nearest borough solid waste disposal container and where garbage collection services are not available;
2. The incineration of livestock carcasses or feces in accordance with normal agricultural practices on a land parcel at least 40 acres in size located in a general agriculture or unrestricted use zone, provided incineration is conducted in such a manner as to minimize the effect on surrounding property.
C. Open burning is prohibited if an air quality advisory issued by the director is broadcast on radio or television or is published in a newspaper of general circulation in the borough stating that burning is not permitted due to poor air dispersion, high levels of air pollution or excessive smoke in the air. (Ord. 94-083 § 2, 1994; Ord. 86-075 § 2, 1986)
8.04.051 Variances.
A. A person who owns or controls a building, structure, or parcel of land may request from the commission a variance from rules or regulations promulgated by the borough. A request for variance shall be in writing, signed by the applicant, and shall state the reasons for the request. The commission shall grant the variance if, in its discretion, it finds that:
1. The emissions occurring or proposed to occur do not endanger human health or safety; and
2. Compliance with the rules or regulations from which the variance is being sought would produce serious hardship without equal or greater benefits to the public.
B. A request for variance under this section shall be decided by the commission at a public hearing held after public notice. The commission shall consider the relative interests of the applicant, owners of property likely to be affected by the emissions, and the public health, safety, and welfare.
C. A variance or its renewal granted under subsection (A) of this section shall be for periods and under conditions as the commission shall determine within the following limitations:
1. The variance or renewal shall extend for a period not to exceed the reasonable time which, in the opinion of the commission, is necessary;
2. A variance granted on this ground shall contain a timetable for taking action in an expeditious manner and shall be conditioned on adherence to the timetable, and shall not exceed a maximum period of one month.
D. A variance granted under this section may be renewed on conditions and for periods which would be appropriate on initial granting of a variance. If complaint is made to the commission on account of the variance, no renewal of it shall be granted unless, after a hearing on the complaint following public notice, the commission finds that renewal is justified. The complaining party has the burden of showing that the variance is unjustified. No renewal may be granted except upon application. Immediately upon receipt of an application for renewal the commission shall give public notice of the application.
E. A variance or renewal shall not be a right of the applicant but shall be within the discretion of the commission. However, a person adversely affected by a variance or renewal granted by the commission may appeal to the superior court of the state of Alaska pursuant to Part VI of the Appellate Rules of the Alaska Rules of Court Procedure. Judicial review of the denial of a variance or renewal may be had only on the ground that the denial was arbitrary and capricious, or any other ground provided in AS 44.62.
F. No variance or renewal granted under this section may be construed to prevent or limit the application of the emergency provisions of FNSBC 8.04.061. (Ord. 86-075 § 2, 1986)
8.04.061 Emergency procedure.
If the director finds in writing that a condition of air pollution exists and that it creates, or is in imminent danger of creating, an emergency requiring immediate action to protect human health or safety, then the director shall, with the written concurrence of the borough mayor, order the person or persons causing or contributing to the air pollution to reduce or discontinue immediately the emission of air contaminants. The order shall be in writing, and shall fix a place and time, not more than 24 hours later, for a hearing before the commission. Within 24 hours after the commencement of the hearing, and without adjournment, the commission in a written decision with findings of fact and conclusions may affirm, modify, or set aside the order of the director. A person aggrieved by a decision of the commission may appeal to the assembly. The director shall immediately after the emergency session of the commission issue and direct the service of such pleadings, orders, and notices as the commission may require. (Ord. 86-075 § 2, 1986)
8.04.071 Injunctions – Conditions for seeking.
The borough may seek to enjoin any person who engages in any open burning:
A. Which discharges into the atmosphere any air contaminant which results in the contamination of the air above public or private property; and
B. Which meets one or more of the following conditions:
1. Is offensive, obnoxious, odoriferous, or opaque to the extent that substantial reduction in the value of adjacent property occurs or is reasonably expected to occur;
2. Renders adjacent property uninhabitable;
3. Causes detectable aggravation or exacerbation of respiratory, circulatory, or skin diseases, or other human diseases;
4. Damages the health of domestic livestock or damages vegetation to such a degree as to render them unmarketable, or to cause a substantial reduction in its value, or in any other manner renders its production more costly;
5. Damages wildlife or indigenous vegetation to such a degree as to reduce the carrying capacity of the land for wildlife;
6. Impairs the value of property, whether public or private for recreational purposes; or
7. Causes noticeable damage to buildings, materials, paint surfaces, fabrics, or textile pigments. (Ord. 86-075 § 2, 1986)
8.04.081 Chapter enforcement.
A. Any violation of any provision of this chapter or the open burning regulations is punishable by a fine of not more than $300.00 for each violation. In the case of a continuing violation, each day the violation continues constitutes a separate offense.
B. For the purposes of this section, a violation is any of the following:
1. Any act or omission declared to be unlawful in this chapter;
2. The knowing maintenance of an emission or pollution condition prohibited by this chapter; or
3. The failure of any person to comply with an order issued or regulation promulgated pursuant to this chapter.
C. All orders directed to a corporation shall be issued to the president or chief executive officer of such corporation or to his or her agent. In the event of prosecution under subsection (A) of this section, the corporate treasury and assets shall be liable for payment of fines, and the president or chief executive officer of such corporation or such other person who as officer or agent thereof is authorized to decide and direct compliance shall be personally liable thereunder.
D. An action may be brought at law or in equity in the name of the borough to employ any of the remedies available under the statutes of the state of Alaska, the common law, or general equity principles to prevent, enjoin, terminate, and punish violations of this chapter.
F. No provisions of this section shall preempt remedies available to the state under Alaska Administrative Code or other state enactment.
G. This chapter does not affect the private right of any person to bring an action for damages or other relief because of an injury caused by air pollution. (Ord. 86-075 § 2, 1986)
For statutory provisions authorizing municipalities to regulate air pollution control, see AS 29.35; for provisions relating to air quality control see AS 46.03.