Document from the CT Department of Health on how Connecticut Local Health Departments can enforce Wood Smoke complaints in CT ct.gov/dph/lib/dph/environmental_health/eoha/pdf/response_to_wood_burning_complaints_in_ct.pdf Legal Options: ENFORCEMENT Enforcement by local director of health >From the start, all local health directors should know they have clear legal authority to enforce a wood smoke complaint when it constitutes a public health nuisance. A public health nuisance is a nuisance which has such intensity, characteristics, frequency and duration that: (A) It is, or can reasonably be expected to be, injurious to the public health or welfare; or (B) It unreasonably interferes with the enjoyment of life or the use of property, considering the character and degree of injury to, or interference with, the health, general welfare, property, or use of property of the people affected, and the location of the pollution source and character of the area or neighborhood affected. A public health nuisance includes a residential smoke condition caused by the use of an outdoor wood burning furnace, wood burning stove, fireplace, chiminea or other wood burning device, which uses the director, has determined constitutes a nuisance that may endanger the health of the inhabitants. Whether the source of the emissions was present in the location first shall not be a consideration. Although wood smoke is not specifically referenced in the CT Public Health Code Section 19? 13?B1 as a nuisance, that list is not exclusive. It is read in the context of other relevant statutes and regulations. As set forth below, CGS section 19a?206 requires that the directors of health examine and cause abatement of all nuisances injurious to the public health. Freedom of Information and confidentiality of the complainant: Typical wood smoke complaints are initiated by an inhabitant of a property neighboring the wood burning source, who is being adversely affected by the wood smoke. Such a complaint may be responded to by the director of health or the directors authorized agent to determine if a public health nuisance exists. A record of the complaint, the investigation and the enforcement that follows should be made and kept by local health. Whether that same record is subject to public disclosure is a question answered by CT laws contained within the Freedom of Information Act, CGS section 1?200, et seq. For purposes of CT FOI law, local health is a public agency generally subject to disclosure of records. However, it is important to note that CT FOI laws exempt certain local health records from disclosure. CGS Sections 1?210 (b) (16), exempts from disclosure in relevant part: CGS 1?210(b)(16) Records of complaints, including information compiled in the investigation thereof, brought to a municipal health authority pursuant to chapter 368e or a district department of health pursuant to chapter 368f, until such time as the investigation is concluded or thirty days from the date of receipt of the complaint, whichever occurs first; 6It has previously been decided that the issuance of a legal order to abate marks the conclusion of the local health investigation. However, the complainant often expresses a desire to keep their identity confidential out of fear of threat or intimidation by the wood smoke site owner. On this particular issue, the State Freedom of Information has repeatedly concluded that the complainants identity is permissively exempt from disclosure. In doing so, the CT FOI Commission has determined that local health is a law enforcement agency for purposes of CGS 1?210(b)(3) and that the identity of the requested complaining person constitutes that of an informant not otherwise known. In relevant part, CGS 1?210(b)(3) exempts from disclosure: CGS 1?210(b)(3) Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known; Therefore a complainants identity in the records of local health is not subject to disclosure under CT FOI at any time where the disclosure would subject the complainant/informant to threat or intimidation if their identity were made known. See CT Freedom of Information Commission, Final Decisions, Docket #s FIC 1991?125, 1996?086; 199?144 and 2009?094. Necessity of proof of a public health nuisance It is well decided that the director of health may only issue an order to abate a nuisance which endangers the public health. However proof of a health injury to an inhabitant is not required for the director to have grounds to issue an order to abate a wood smoke health nuisance. Courts in CT and further have upheld the use of the health directors authority in broad measure when protecting the public health. In the case of State v. Cooney, 1 Conn.Cir.Ct. 530, 24 Conn.Supp. 242, 189 A.2d 511 (1962), the court held that the purpose of the nuisance statute is to authorize the director of health to examine and cause the abatement of any nuisance which may endanger the public health. The local director of health does need to document the local health nuisance investigation and findings as part of the case file. Most importantly, documenting the initial inspection will support the legal basis for the director of healths issuance of the order to abate the wood smoke as a public health nuisance. And, documenting the final inspection after the order has expired will support the legal basis for civil or criminal enforcement for violation of the order to abate, pursuant to CGS 19a?206. Since wood smoke frequency is an issue to the severity of the nuisance, each inspection where the complaint is verified should be noted in the case file with specific dates and findings. This should be the approach to every case, as any case may end up challenged in a court of law. Pictures, whether digital or 35 mm, video, field notes, and inspector or complainant? recorded observations, including inspectors sensory perceptions, such as the smell of bad smoke odors inside the neighboring property, are all helpful to later prove the existence of a public health nuisance condition. Keep in mind that evidence of an alleged public health nuisance is only admissible in court if it was lawfully obtained by local health. In that regard, if the alleged wood smoke nuisance is operating on private property, particularly a single family home, the owner may have a right of privacy. Therefore as a general rule, consent must be sought to conduct a private property inspection. If the owner does not consent, the inspector should seek a search warrant, and secure it before entry is made, or before any special testing is conducted; except as in the case of a public health emergency, wherein entry and action may be made by the director as necessary to protect the public health. In the alternative, the inspector may legally document by photos, etc., everything that can be seen in plain view, even with a binocular or other magnifying device, from a consenting neighbors property or a public way. Once it has been determined that a nuisance smoke complaint has been detected, the local health director has two options for notifying the responsible party that a violation exists; a letter indicating a public health complaint, or the issuance of an Order to Abate. Issuance of a letter indicating a public health complaint by a local director of health If the local director of health desires, a letter notifying an owner or occupant of an alleged wood smoke complaint may be issued prior to a formal order to abate, in an attempt to gain compliance by cooperation before formal process. A suggested form for such a letter is provided as Attachment B. Provided the nuisance smoke has not created an imminent health hazard, a local director of health may send or deliver such a letter to the responsible party. The letter should cite the violation and provide a timeframe for correcting the problem. Local health directors should be careful not to rely solely on this type of letter unless the recipient responds promptly and in full cooperation, by abatement of the complaint as needed. If this letter is not successful in protecting the public health under the circumstances, the local director of health should promptly send a formal order. Issuance of an Order to Abate by a local director of health Enforcement by a municipal or district health director of a wood smoke nuisance is pursuant to CT General Statute, and CT Public Health Code, which state in relevant parts: CGS Sec. 19a?206. Duties of municipal directors of health. Nuisances and sources of filth. (a) Town, city and borough directors of health or their authorized agents shall, within their respective jurisdictions, examine all nuisances and sources of filth injurious to the public health, cause such nuisances to be abated or remediated and cause to be removed all filth which in their judgment may endanger the health of the inhabitants. CPHC Section 19?13?B2. Abatement of nuisance. (a) Any local director of health, upon information of the existence of a nuisance or any pollution occurring within his jurisdiction, or when any such nuisance or pollution comes to his attention, shall, within a reasonable time, investigate and, upon finding such nuisance or pollution exists, shall issue his order in writing for the abatement of the same. (b) Such order shall specify the nature of such nuisance or pollution and shall designate the time within which such abatement or discontinuance shall be accomplished; and if such order is not complied with within the time specified, the facts shall be submitted to the prosecuting authority. Copies of all orders shall be kept on file by the director of health in his office and copies of the same shall be furnished the state commissioner of health on request. General instruction on how to issue an abatement order and related enforcement topics are covered under a separate document available through the Department of Public Health, entitled How to Get the Job Done, written by CT Supervisory Assistant States Attorney for Housing, Judith R. Dicine. Orders of the director of health should be done on the form prescribed by the Department of Public Health, as it contains necessary language, including regarding the right of appeal pursuant to CGS 19a?229. It is important to note that the order form must be amended to cite sections CGS 19a?206 and CPHC 19?13?B2 so it pertains to the particular alleged wood smoke nuisance, and must contain a specific time frame for abatement of the nuisance, commencing from receipt of the order. CT Public Health Code Section 19?13?B2 requires further that the directors of health investigate and order the abatement of any public health nuisance; and if the order is not complied with in the time specified, to refer the facts to the prosecuting authority. 9 The time frame and method of abatement may be set as the director of health deems appropriate, which must be analyzed on a case by case basis. The degree of violation, in addition to the affect it has or may have on the inhabitants, should be the considerations when the director chooses a method and time frame for abatement. The local director of health may issue an abatement order which requires anything from a minor furnace cleaning or operational change to a complete cessation of use of the existing equipment. A legal order of a director of health is one which contains neither more nor less than deemed reasonably necessary to abate the public health nuisance. Once the order is issued, and unless revised, it can only be enforced when the time provided in the order has expired. State v. Drexel, 148 Conn. 439, 171 A.2d 398 (1961). Therefore, directors of health should give careful consideration to how much time they give an owner or occupant to abate a wood smoke nuisance, as it must be adequate for the protection of the public health. Decisions of the CT State Department of Public Health have dealt supportingly of local health with respect to orders to abate a wood smoke nuisance. In the case of Joshua Eddinger v. Middletown Health Department, State of CT Department of Public Health - Docket No. 10119EH (2010), local health was found to be within its authority to order the cessation of the operation of the outdoor wood burning furnace on the property, stating the goal is to eliminate the smoke that is threatening the public health. In the case of Sally Huyser v. Trumbull Monroe Health District, State of CT Department of Public Health, Docket No. 080422EH (2009), an order of cessation was found appropriate even when the wood burning stove was the primary source of heat. In Huyser, the Commissioner of Public Health held that the Appellant is not entitled, as a matter of law, to maintain a nuisance; there are other forms of heat that appellant can install that would not create a nuisance or filth that adversely impacts on the health of her neighbors. In John Tallman v. County of Chautauqua, 2007 WL 4278825 (W.D.N.Y.), the court held that there was no statute or regulation which entitles someone to heat his home with wood as a property right. Without such an entitlement, plaintiff cannot claim a denial of due process, in the order to extinguish a wood burning boiler, especially when its use constitutes maintaining a public nuisance. In the event that the local director of health needs to order the cessation of a wood stove or outdoor wood burning furnace which is the sole or necessary source of heat for an occupied structure, a safe alternative source of heat should be put into place as soon as possible. Temporary alternative heating sources may be reviewed by the local building official. Caution should be observed to restrict the use of unsafe temporary heating such as kerosene heaters, which use is illegal pursuant to CGS 29?318. Permanent alternative heating sources will require a permit and licensed contractor for any new installations. If the structure cannot be safely occupied due to lack of an essential service necessary at the time, relocation of the occupant may be mandated pursuant to the CT Uniform Relocation Act, (see CGS Chapter 135). If the unit is a rental property, the landlord may be responsible for relocation of the affected occupants pursuant to CGS Title 47a. Finally, if the property is a tenement, boarding or rooming house, the local health director may choose to remedy the problem by executing the order and liening the costs pursuant to CGS 47a?55, as amended in 2010. Enforcement by CT Department of Environmental Protection The Department of Environmental Protection regulates outdoor wood burning furnaces pursuant to CGS 22a?174k. Complaints regarding smoke from an outdoor wood burning furnace should therefore be referred to the DEP. This pertains to both commercial and residential property. CT DEP generally handles all commercial air quality complaints. But despite DEPs statutory authority on all wood burning air quality issues, the local health director may have a complaint of nuisance smoke affecting a neighboring property, which as discussed above, requires an investigation by local health. So which is it? When does DEP get the complaint as opposed to local health? The answer is both may properly have the complaint, as was clarified in the above referenced 2010 decision of the CT Commissioner of Public Health in Joshua Eddinger v. Middletown Health Department: The threshold for Local Health to find a violation of the Public Health Code is significantly different than for DEP to find a violation of its regulations. DEP has jurisdiction to regulate air pollution, while Local Health has jurisdiction to protect the public health and safety. As such, DEP may find that smoke produced by a wood burning stove complies with its regulations and does not constitute air pollution, whereas Local Health may find that the same stove constitutes a threat to the public health in violation of the Public Health Code, based on toxins in the smoke causing adverse health consequences in the population in proximity to the stove. Enforcement by local building official and CT Department of Consumer Protection The director of health should be aware that the installations of an outdoor wood burning furnace or an indoor wood stove require the issuance of a building permit by the local building official prior to installation. And except in the case of an?owner occupied single family home owner, it also requires a valid plumbing and heating license from the Department of Consumer Protection. Enforcement of these issues rests with those two departments, but should be supported by the director of health. Any violation of these provisions should be referred promptly by the local director of health to the related department for follow?up. Keep in mind that the issuance of a building permit does not waive the director of healths authority to protect the public health. In cases where permits or licenses were duly issued for the installation, the director of health may yet have an actionable public health nuisance based on the wood smoke emitted from an otherwise lawfully installed wood burning stove or furnace. 11 Since the goal of CT health and safety code enforcement officials uniformly is to protect the public through the proper enforcement of the various state codes, responding to complaints for wood smoke nuisances should be a cooperative effort of all related departments. The public is best served when related enforcement agencies present a clear and consistent response to shared issues. Enforcement ? Legal Advice Finally, this document is offered as general guidance only. Local health directors should consult their municipal or district health department attorney for any specific legal advice on public health nuisance enforcement. The local health director may also consult with the prosecuting attorney assigned to handle housing matters for the local State Attorneys Office. Long Term Monitoring and Closure Certain cases will only be resolved with multiple inspections occurring over several months....
Posted on: Mon, 10 Nov 2014 12:46:36 +0000
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