The News

Emerging Fireplace Regulations in the California Bay Area

10/5/99 - Morgan Hill makes the right decision
12/2/99 - San Jose hearing "postponed"
12/9/99 - Duraflame backs out of the struggle
12/9/99 - Livermore Considers the Model Ordinance
1/4/00 - Opps! Dublin Got By us!
5/22/00 - A loss in Palo Alto
5/24/00 - San Jose Back Again
5/26/00 - The Masonry Heater Association Chimes In
San Jose Council Meets to Ban fireplaces 6/6/00
A Loss in San Jose

C H & H'ers:

At eleven-effing-fifty last night, the Morgan Hill Planning Commission recorded its unanimous disapproval of a proposed woodsmoke ordinance that would have prohibited woodburning fireplaces in new dwellings.  Those Southbay local government types take their jobs very seriously, bless 'em.

I will be in touch with City staff today to determine whether it is possible/plausible for the City Council to take up the issue in the wake of its unanimous disparagement by the Planning Commission.

HPA was not represented at the hearing, but Loel McPhee of Andiron Technologies followed our presentation with her own.

Given the hour, the discussion was deliberate, thorough, and noteworthy for its focus on the issues that concern us: regulatory over-response, paucity of compelling data, 99%+ compliance in the Bay Area with the most stringent PM standard in the known world, "false" EPA certification option, BAAQMD's failure to "own" the issue, etc.  In the discussion that followed our presentations, the Council members individually characterized the ordinance as "premature", "unnecessary", and -- in direct response to the discussion of the nonexistent EPA certification -- "unfair".

Planning Council members all saw the need for public education, but agreed that the ordinance was a $10 cure for a 5 cent problem.  (Every local official with whom we are in contact would like the industry to participate in public education).  They were also reluctant to go places that Palo Alto, San Jose and other larger municipalities had not yet decided to go.

Our efforts to date have produced a 2 for 2 record (Hercules, Morgan Hill), but the most significant challenges lay immediately ahead.  As we have noted, our entire public relations/communications effort is poised to respond directly to the proposals that finally see light in those two pivotal jurisdictions.  We have the momentum, and can now refer to "similar ordinances having been rejected by other Bay Area communities", but the stakes and the "degree of difficulty" will soon increase.

Next milepost:  San Jose Woodsmoke Advisory Committee meeting, currently scheduled for Nov. 18.


Memo to: California Hearths & Homes From: Michael Gersick Date: October 5, 1999

RE: Meeting with City of Morgan Hill (MH) Planning Department staff

Today's meeting with Curtis Banks and Andrea Subotic of the MH staff, and Tommi Mayfield of the BAAQMD, revealed both the potential strength and the weakness of our position on fireplace woodsmoke.

After Tommi described the nature of Particulate Matter (both PM10 and PM2.5) and the epidemiological bases for BAAQMD's concerns about woodsmoke, I responded with our three-point position:

Using current standards, there is no crisis. 0 exceedances of federal standard since 1991. Of the much more stringent California standard (most rigorous in the nation), there were 3 exceedances in 1996, 4 exceedances in 1997 (the last year for which the District has reported final data). If any trend can be observed, it is that the number of days on which "regulatorily significant" PM readings were recorded has declined dramatically in the past decade. (As reported by the BAAQMD, exceedances of state PM standards averaged 38 per year during the first four years of the current decennial period; the last four years averaged only six exceedances per year). Hardly a public health emergency, justifying the unconditional prohibition of one, and only one, source of particulate matter.

Irrespective of the readings that the BAAQMD's monitors generate for PM, the available data is not capable of source identification. The monitors relied on cannot "speciate" PM, and cannot allocate measured values between woodsmoke, food smoke, and other carbon-based PM. The estimates being used are extrapolations from Denver, CO; a very different air basin. No regulation, certainly no prohibition, can meet its burden until the problem it purports to address can be quantified, either absolutely or relatively.

If the woodsmoke/PM/public health "connection" were properly documented, and a regulatory response were appropriate, many other options would achieve greater reductions within the community than a prohibition on new woodburning fireplace construction/installations and/or remodel/retrofits. Consumer education, fuel selection, public media alerts, all would reduce PM generation from all fireplaces on critical days, rather than just the fireplaces yet to be installed, and still allow everyone who wanted one to enjoy a real fireplace on most days of the year.

Ms. Mayfield pleasantly disputed some of our contentions and projections, but finally acknowledged the data I cited on exceedances was correct, our characterization of "EPA Certified" was correct, our report of BAAQMD "regulatory abdication" was correct, etc., etc.

Despite the Planning Department staff's transparent support for a regulation that promises fresher air at whatever cost (have these "thirtysomethings" lost all sense of romance?), I am increasingly confident that our arguments will be well received in formal, City Council proceedings.

However, it is also clear that even if we win the current battles, there is a larger war that is being lost. The C H & H objectives may never be reached, not because our arguments are weak but because the perception of woodburning fireplaces has been permitted to become so negative.

In the case of Morgan Hill, today's meeting concluded with the acknowledgement all around that the proposed Ordinance may not be necessary, given the state of MH's residential development planning process. That process, which uses a checklist of "quality of life" characteristics to manage growth and community impacts, rates gas-fired fireplaces as a "plus", woodburning fireplaces a "minus". As a result, all of the 9,600 residential building permits granted (or granted and pending) in 1999 propose to use gas-fired "builders' boxes" only. No woodburning fireplaces will be constructed in MH for the foreseeable future. The cost of enforcing a "remodels only" ordinance versus its limited benefit (MH is growing OUT not IN) may not support its adoption. So, it is conceivable that MH will not adopt any woodsmoke ordinance, after which no woodburning fireplaces will ever again be installed within the City.

Bottom line: Among planners, regulators, and other public officials, up to and through management levels of public service, a reflexive connection between woodburning fireplaces and pollution has been established. Whether deliberately (by the gas industry), or by simple proliferation of bad science and bad intuition, such folks as the staff to MH's Planning Department have been convinced that gas-fired fireplaces improve the quality of life in their community, and woodburning fireplaces degrade it. They have structured the Cities permit-approval process on that basis, and will continue to do so, Ordinance or no Ordinance.


Date: Fri, 12 Nov 1999 16:58:38 -0800 From: Michael Gersick Subject: Re: Another notch on the gunbarrel To: Jim Buckley Reply-to: Organization: AIM MIME-version: 1.0 X-Accept-Language: en


When you say "Maybe we could encourage a mini grass roots movement to save our fireplaces and the regulators would pick on someone else to show that they're doing something", you are describing the principal service of my firm.  That kind of issue management is what AIM is all about.  The lobbying that we've been doing for C H&H, soon to become secondary to our media and interest group communications, is but a part of our package.

We would love to take this issue on, regionally and nationally.  Trade journal publications, mags for home builders and designers, newsletters and journals directed at elected officials at all levels...all those are typical avenues for rehabilitating the health and safety image of the masonry fireplace.

If you'd like to try one yourself, I'd be happy to look at a draft and suggest deletions that might be "sensitive" or compromising to our strategy or effectiveness.  But if you'd like to spend your time on your business, we are more than ready to rollover the C H & H position to a regional or national audience.

M. G.

Jim Buckley wrote:

Michael, I understand. I think your reports should be confidential and spontaneous. This is good stuff though and I'd love to write an article about it even more than merely posting your reports. How about, if I write something, I'll send you a draft and "clear it" with you first?  Maybe we could encourage a mini grass roots movement to save our fireplaces and the regulators would pick on someone else to show that they're doing something. Haven't a clue where I'm going to get the time to do this any time soon. Best, Jim Buckley

Thanks for the good words, Jim.

RE: your idea of posting the report on your website; I'd prefer to be able to communicate with C H & H in a manner not really suited for publication.  Much of what I try to put into the reports is subjective, often strategic, and even occasionally somewhat disrespectful of the decision makers we are dealing with.  So, I'd prefer the memos or reports per se NOT be put on the webpage.

The facts of the current matter, that the MH Planning Commission expressed unanimous disfavor toward the proposal, calling it "premature" "unnecessary", etc., and that the Commission strongly suggested that a good faith public education program and other industry-supported "voluntary" mitigations would be much more effective than restrictive bet.  That's stuff that I'd like to have seen by as many eyes as possible.

Thanks again.


Jim Buckley wrote:

Michael, I agree with Marshall - "Nice work".  Can I put your report on the website? On the testing front, latest word is that the BIA will contribute money and a standard masonry fireplace design to test in December.  I'm going down to OMNI in Portland to watch the testing in progress - Northern sonoma protocol plus two EPA stove protocols on a stove - on Friday.  By the way, OMNI Director, Paul Tiegs, says:

"OMNI is a "State of California Air Resources Board Approved Independent Contractor" for conducting compliance testing pursuant to Section 91207, Title 17 of the California Code of Regulations.  We maintain this accreditation in order for us to provide service to our industrial clients located in California but also comes in handy for a lot of other dealings we have in California."

Best, Jim Buckley

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Date: Thu, 02 Dec 1999
From: Michael Gersick
Subject: How can we shoot em 'tween the eyes if all they show is their backs?
To: Jim Buckley , "Cohen , Marshall" , McNear Brick and Block , "Parker, Erich" Cc: "Crouch, John" , "McPhee, Loel" Reply-to:

C H & H'ers:

Just got a call from Rita Norton's office... the San Jose City Council Committee hearing on the proposed woodsmoke ordinance has been "postponed" until some time in January.  Date to be announced at some later time.

I don't know whether the postponement is for holiday schedule reasons, or for reasons more substantive.  John Crouch told me last week that the Bay Area District had become very aware of our activities, and of their 0-for-1999 record on ordinance adoptions; he thought they might be contacting me to discuss some kind of a negotiated resolution.  No call yet, but rolling postponements and deferrals continue.  (As of this morning, the item is tentatively scheduled for hearing in Palo Alto on February 7.)


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Date: Thu, 09 Dec 1999
From: Michael Gersick
Subject: The Duraflame went out....
To: Jim Buckley , "Cohen , Marshall" , McNear Brick and Block , "Parker, Erich"

Unfortunately, the Duraflame Yule Log gift box is off. Duraflame (in the person of Sarah Hamlyn, Brand Mgr.) just told me that they were not comfortable being so publicly associated with a group which might endanger their "long term good relations" with Air Districts. They would like to remain informed of our activities.

I don't fault their judgment, and I think they will continue to be supportive of financial assistance to C H & H from the manuf. log sector of the industry. It's certainly in their best interest for us to be "riding point", pushing a more aggressive message challenging the District's case. They get the benefit of our success, and still get to be the District's "second choice" in its public information material. Were they seen to be joined at the hip with us, they lose that safe zone.

Is there any reason why we need Duraflame? I'd like to wrap our Q & A, and a warmly worded holiday greeting, around some generic manufactured log and send it to the good officials of our Southbay municipalities. Are there any concerns about C H & H doing that?


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To: Jim Buckley
From: "Thompson, Kirk"
Subject: Re: City of Livermore - Potential Fireplace Ordinance

I am with the City of Livermore Environment and Energy Committee.

I am gathering information on the BAAQMD model fireplace ordinance. We are reviewing it for potential or partial adoption.

We have the following questions:

Has any city adopted it since it was issued 1/99? Are any other cities pursuing adoption? Is the BAAQMD model ordinance available in electronic format for our use? Are "Spare the Air Nights" happening? When was the last one declared? The BAAQMD model code uses the word "install" under item 2. What about remodels or repairs? Where do you draw the line? How are inserts certified? Can fireplaces be tested the same as inserts? Who would govern their construction without a brand name or certification listing?

Thank you for your help.

Kirk Thompson




The BAAQMD Model fireplace ordinance is unfair and we are fighting it.  We have formed an organization, the California Hearth and Home Association (CH&H), and Michael Gersick has been attending all the meetings and is our point man.  I have sent him a copy of this email message.

The BAAQMD proposed fireplace ordinance bans fireplaces even though the BAAQMD says it doesn't.  The ordinance would require fireplaces to meet a non-existent EPA fireplace standard.  Meanwhile there are existing fireplace testing protocols that can test fireplaces to an "equivalency" of the EPA stove standard but the BAAQMD has chosen not to recognize any of these third party protocols and the EPA has not and will not develop a fireplace standard.

Moreover fireplaces are not the problem.  Fireplaces contribute very little to the air pollution in the Bay Area and the BAAQMD has had to manipulate, extrapolate and expand the little data they have to show any contribution from fireplaces.  Their tactics are tantamount to hunting mosquitoes with a shotgun.

I recommend you talk with Michael Gersick and review the BAAQMD model ordinance with the skepticism it deserves.  We want to be good environmentalists too and we have worked to develop cleaner-burning fireplaces tested in EPA certified laboratories and approved in Washington and parts of Colorado and California but the BAAQMD proposed model fireplace ordinance is all political, not rooted in science and should be re-written.

We urge you to vote against the BAAQMD proposed fireplace model ordinance and tell them to go back an re-write it to make it fair, legal and based on science.

and separately also on 12/9/99.........


I did generally answer another message I received from you but I wanted to elaborate on your last question: "Who would govern their (fireplaces) construction without a brand name or certification listing?"

Good question and one that we considered in Washington. I think several manufacturers or groups of manufacturers would come together to design, build and take responsibility for particular (brand name) masonry fireplaces and that the old fashioned masonry fireplace designed on the job by the mason is a thing of the past.

In Washington, since 1997 when the legislature mandated emissions testing and certification, the best and cleanest of the metal fireplaces and three or four masonry fireplaces have been certified. All of the certified fireplaces, including the masonry fireplaces, have brands, labels and serial numbers and are substantially the same as the models actually tested.

Our traditional masonry Rumford fireplace, for example, is sold to mason contractors as a "core kit" with components manufactured by Superior Clay in Ohio and Mutual Materials in Washington and includes dampers and glass doors and other components made by other manufacturers. Collectively we take responsibility for the "core kit". The door frame functions as a template so the mason builds the fireplace the right size, and the throat and smoke chamber dictate the other critical dimensions. We include "Instructions", "warrantees" and serial numbers and provide support. In other words we take responsibility for the "certified Rumford fireplace" and see that each one built is substantially the same as one of the four models tested at an EPA certified test lab.

You can see all this in our "Manual" on our website at It has not been a problem.

The BAAQMD has chosen to get rid of fireplaces in a blatantly arbitrary way. There is good evidence that fireplaces are inherently cleaner than wood-burning stoves despite what the stove industry says but the BAAQMD regulators have not chosen to establish an objective performance standard. We're not opposed to regulation and we are concerned about the environment. We'd just like the rules to be fair.


Jim Buckley

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Opps....Dublin got by us!

Natalie from Dave Gates and Assoc. (925 736 8176) called to say Dublin had refused to approve an outdoor Rumford unless we had an EPA certification. After a few calls, Ken Petersen, Dublin chief building official (925 833 6620), confirmed and sent me the ordinance the city of Dublin adopted last July! Here is the relevant section:

7.32.205 Section 3101.1, Chapter 31, Prohibited Installations - Added

A new Section 3101.1 is added to read:

It shall be unlawful to install a woodburning fireplace or appliance that is not one of the following:

What can I say? The Dublin ordinance includes the BAAQMD language requiring fireplaces to meet a non-existant standard and Ken sent me the BAAQMD doublespeak letter that says in bold type: "The ordinance does not ban fireplaces."

Jim Buckley

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Editorial Contact:
Michael Gersick
(916) 449-9507


PALO ALTO, CALIFORNIA -- May 23, 2000 -- In a move more symbolic than likely to have any effect on air quality, the Palo Alto City Council last night banned woodburning fireplaces in all types of new constuction, including hotels and restaurants.

The ordinance was sponsored by Councilmembers Mossar and Eakins, based on a "model ordinance" drafted by the Bay Area Air Quality Management District. Mossar is a member of the District Board.

Fireplace industry representatives supported the need for stringent air quality standards for "woodburning appliances", but strongly opposed the Palo Alto ordinance's use of "EPA certification" as the criterion that determines which "appliances² may be built. EPA ( U.S. Environmental Protection Agency) certification is not available to fireplaces, even though recent tests conducted at EPA certified laboratories have shown some fireplaces burn as cleanly as the EPA "certified woodstoves". Under the Palo Alto ordinance, the certified woodstoves would be permitted. The clean-burning fireplaces would not.

"The Palo Alto Council was committed to throwing out the baby, the bathwater, and the bucket", said California Hearths & Homes representative Michael Gersick. "The Council is on a Holy Crusade to eliminate woodburning fireplaces in Palo Alto and, by God, don't try and confuse them with facts."

"It's very unfortunate that so much misinformation was accepted by the Council and its staff, with so little critical review or analysis."

"The fact that some individuals -- among them Councilwoman Mossar's mother-in-law -- are bothered by woodsmoke apparently makes it OK in Palo Alto to abandon established principals of law and logic. Future generations of Palo Altans are not the only victims of this kind of lawmaking. Fairness and fact-based public policy were abandoned, as well. To permit woodstoves to be installed and to simultaneously prohibit fireplaces that have been shown to burn as cleanly, is neither fair nor fact-based."

Gersick indicated that industry would be seeking advice of counsel on the apparent inequity of the ordinance.


© California Hearths & Homes . All Rights Reserved.



Talking Points Approaching Palo Alto & San Jose Council Meetings

1) Ban on Fireplaces Unfair: The model ordinance advocated by the Bay Area Air Quality Management District (BAAQMD) bans fireplaces that may be as clean-burning as other wood-burning appliances that it would permit. The BAAQMD claims that the ordinance does not ban fireplaces but then they go on to explain that it merely requires fireplaces to meet a non-existent standard. Isn't that the same thing as a ban?

2) Existing Fireplace Standards: There are several fireplace emissions standards that the BAAQMD could use.

a) The Washington State Fireplace Standard developed as an equivalent of the EPA Phase II Stove Standard. The Washington Standard suffers from lack of effective enforcement but modifications to close the loopholes can be easily crafted.

b) The Northern Somoma County Fireplace Standard which is almost ready after almost a decade in the making.

c) The California Fireplace Standard proposed by the California Hearth and Home association. This proposed standard is basically the Washington Standard with the loopholes closed and the fueling protocol suggested by the Northern Sonoma County Fireplace Standard.

3) Good Science Soon: Earlier this year the industry funded the emissions testing by OMNI, an EPA Certified lab, of four masonry fireplaces, a factory-built fireplace and an EPA certified stove, each tested to four emissions standards - the Washington Fireplace Standard, the emerging Northern Sonoma County Fireplace Standard and both EPA Method 5-G and 5-H. The objective is to get direct comparisons between all six appliances and all four emissions testing standards. The results are almost finished and the industry is committed to a peer review by Dr. Dennis Jaasma at Virginia Polytechnic Institute and re-testing at least one of the fireplaces in another independent EPA certified lab to confirm the results.

4) A Rational Decision? We urge the Council to table this proposed ordinance for only a couple of months until a rational decision can be made based on the emerging test results mentioned above and until an appropriate fireplace emissions standard can be identified.

Council Meeting

We lost unanimously in Palo Alto, as predicted. The City Council didn't seem to be interested in nor did they listen to any arguments. There was no opportunity to even raise the issue of masonry heaters although I mentioned them along with fireplaces in my allotted three minutes for oral remarks. Here is my report to the CHH:

Tony Mayfield reported that other cities (Petaluma, Dublin, etc.) passed similar ordinances with "no problem". The only councilman who even bothered to return Michael Gersick's call said it was nice to have a fire but in a densely populated area we'd just have to give it up. One councilwoman and the City Manager both pointed out that they were not scientists and had to rely on the BAAQMD. There was little time and no interest in hearing about grams per kilogram or the new round of testing.

What it means, I'm afraid, is we will lose most of the remaining fireplace business because the "word" is they banned fireplaces. The ordinance still would allow replacing existing fireplaces or building masonry fireplaces with gas logs in them (We think. Martin will test that assumption.). So, on the face of it its a "non event" - a minor loss in the retail wars that will kill our market - unless.....

We do something.

1) Issue a press release - at least.

2) Sue* on the basis that the ordinance is an arbitrary restraint of trade and an inequitable abuse of authority in that no performance criteria was used to ban appliances that may be cleaner-burning than the appliances they do allow. It would be dramatic, grab a headline, raise our main issue and could be successful. I favor it - even the threat of a suit may send a message to San Jose and other cities that would induce them to at least identify a performance standard.

3) Call for a referendum** to overturn Council.

4) Put on a workshop and/or focus some advertising toward pointing out you can still build masonry fireplaces to replace existing fireplaces and if you install gas logs.

5) We should do whatever we decide to do quickly.


*When we lost at the BAAQMD level our legal advice was we had no standing and we should wait to see if any cities actually passed an ordinance that arbitrarily banned fireplaces without establishing any performance standard. Now several have and they say they're not scientists and our fight should be with the BAAQMD. The process makes for a slippery and shifting target.

**Interestingly, there was very recently a referendum in Palo Alto that overturned Council's approval of an ordinance to regulate historically appropriate changes to residential homes. Actually those who owned the historic homes favored the historic preservation review, but the referendum backers concentrated in non-historic areas and got enough votes to overturn Council. With our grass roots contacts and the CHH Survey, should we consider a referendum?

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San Jose Stuggle

Date: 5/20/00
To: Jeff McNear ,
From: Jim Buckley
Subject: Wording for SJ Amend
Cc:, Paul Tiegs

Jeff, Michael & John,

A proposed amendment for City of San Jose based on John Crouch's proposed amendment and our CHH meeting last Friday and including masonry heaters:

9.11.300 Unauthorized Appliances Prohibited

No person shall install a woodburning appliance that is not one of the following:

add to Definitions:

A masonry heater is a periodically fired, thermal mass woodburning appliance defined by ASTM E-1602

A City Approved Fireplace means a specific model of fireplace approved by


1) Include masonry heaters, like pellet stoves, which are very clean. Strategically it's good to associate fireplaces with heaters because the issues of burn rate, thermal mass, periodic firing and the need for a g/kg emissions factor standard are similar.

2) Keep it simple, yes, but provide a list of "not-ready for prime time" standards which makes the point that they should really table the issue until the test results are ready and until the Northern Sonoma county Fireplace Standard really exists.

Notes on the proposed standards:

a) The Washington Standard suffers mostly from lack of enforcement. The law allows approval of "similar" fireplaces that have not been tested but the proposed introductory language, "a specific model of fireplace approved.." takes care of that. The Washington Fireplace Standard does, however, exist, is a consensus standard and a state law and represents the best yet fireplace standard that is an equivalent of the EPA Phase II stove standard.

b) The Northern Sonoma County standard still does not exist and is therefore no more acceptable than an "EPA standard - should the EPA ever develop such a standard" that the BAAQMD recommends. On the other hand the Northern Sonoma County Fireplace Standard could be and probably will be implemented soon and it would be acceptable if the Council specifies no enforcement until the standard exists.

c) The California Fireplace Standard, sponsored by California Hearth and Home is the Northern Sonoma County Fireplace protocol in it's current state of development as used in the recent OMNI tests with a standard, equivalent to the stove standard, established of 7.3 g/kg and with the complicating efficiency factor eliminated.

The inclusion of the California Fireplace Standard represents the industry's willingness to be regulated and to suggest some immediate and appropriate fireplace standard as an alternative to the Washington Standard and a couple of non-existent standards.

Calpine powerplant in So. San Jose.


When I talked with you a few months ago about our struggles with the BAAQMD over fireplace regulations you said the BAAQMD was "polluter-friendly". I know what you mean. Thought you might get a kick out of our education and radicalization in part as a result of the note below. Need any help? We might like to support a larger cause.


Jim Buckley

Date: Mon, 08 May 2000 14:26:38 -0700 From: Michael G Subject: San Jose To: John Crouch Cc: Jeff McNear , Jim Buckley


See these recent clippings re: proposed Calpine powerplant in So. San Jose.  We've got a 800 lb. gorilla in the cage with us, and we've got to decide how to take advantage of him.  It may be tough for us, or anyone, to sell a "PM is no problem" argument while this thing is hanging.  On the other hand, it may be tough for the BAAQMD to have any credence in their concern about woodsmoke, having issued a PDOC to the Calpine plant.  Let's put this on our agenda.


Michael Gersick & Associates
public affairs -- issue management
980 Ninth Street, #1600
Sacramento, 95814
(916) 449-9507

Posted April 26, 2000

One Big Step Closer
As expected, the Bay Area Air Quality Management District (BAAQMD) issued their Preliminary Determination of Compliance (PDOC) essentially giving Calpine their approval to build the power plant. Any comments on the PDOC must be received by the BAAQMD before May 31, 2000. Some noteworthy items from the PDOC:


Response from Bradly Angel, Green Action:

Thanks for your message....yes the Air District will go on and on about pollution from barbeques in your backyard, and then allow major polluters to emit large amounts of dangerous chemicals and pollutants. They issue weak permits, and then twiddle their thumbs as the companies then violate those weak permits....that is why we need to stay involved and active! here is info on an important upcoming conference i urge you and others to attend:

10th Annual Conference of California Communities Against Toxics
Hosted by the Mohave Elders of the Colorado River Indian Tribes and co-sponsored by Greenaction

Saturday and Sunday, June 3-4, 2000
Colorado River Indian Tribes Reservation
The Blue Water Hotel and Casino, Parker, Arizona
(on the banks of the Colorado River between California and Arizona)

Join with grassroots community activists from California and Arizona for this important conference and gathering. The Mohave Elders and the Colorado River Indian Tribes have been on the front lines of the battle to save Ward Valley and the Colorado River from the proposed nuclear waste dump, and we are honored they are hosting this year's conference.

Saturday, June 3:
8 a.m.- noon - Breakfast & Plenary Session: The State of the Movement
Noon: lunch
1-6 p.m.: Skills and Issues Workshops
6 p.m.: Dinner, Cultural Presentations and Celebration of Victories at Tribes' Nature Preserve

Sunday, June 4:
8 a.m. Breakfast
9 a.m. - 1 p.m. Workshops and Closing Plenary

Workshops: Environmental Justice, Toxics and Nuclear Issues, Contaminated Communities and Superfund, Pesticides, Community Organizing, Media Skills, Accessing Government Documents, Government Accountability, Children's Health Issues, Lead, Drinking Water Quality, Advanced Technology Deployment, Sewage Sludge/Toxics in Fertilizers, and Brownfields Issues.

Logistics: For information aboutlodging or childcare or to RSVP contact Jane Williams at CCAT (661) 273-3098 or Bradley Angel at Greenaction (415) 252-0822. Call the Blue Water Hotel and Casino to make hotel reservations (tell them you want the California Communities Against Toxics/Mohave Elders conference rate of $55 per room. Camping is also available nearby).

Greenaction for Health and Environmental Justice
phone (415) 252-0822
fax (415) 252-0823
1095 Market Street, San Francisco, CA 94103

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The Masonry Heater Association Chimes In

Date: Fri, 26 May 2000 07:36:30 -0400
From: Norbert Senf
Subject: San Francisco Bay Area is Banning Masonry Heaters

Hello Everyone:

Palo Alto passed an ordinance last Monday to ban woodburning fireplaces that are not EPA certified. This ordinance effectively bans masonry heaters as well. This is because the ordinance specifies "EPA certified" stoves only. The EPA regulation in fact recognizes masonry heaters as inherently clean burning, and classes them as "non-affected facilities".

Home heating through the clean burning of sustainably grown fuelwood is one way to reduce American greenhouse gas emissions, which are the highest per capita in the world. It is environmentally irresponsible for local councillors to ban responsible wood heating.

A very substantial body of North American test data supports the claim that masonry heaters are the cleanest way to burn cordwood, by a substantial margin. Furthermore, the EPA test protocol is impossible to do on a masonry heater, so that they are by definition uncertifiable.

Similar ordinances have already been passed in Dublin, Petaluma, and Northern Sonoma.

San Jose has a full council meeting tentatively scheduled for June 6, and is almost certain to do the same thing. The Masonry Heater Association (MHA) wrote a letter to the Office of the City Attorney on October 26, 1999, but has received no reply.

If you are in the Bay Area, one thing that you can do is download the MHA position paper and try to get local politicians to read it.

Uninformed environmental legislation is in no one's interest.

Thanks for your time ............. Norbert Senf

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San Jose Council Meets to Ban fireplaces 6/6/00
(Lawsuit, Letter to Supporters, Talking Points)


Ken Finney, from Heller Ehrman, thinks that now we do have more reason to file a lawsuit that we did after the BAAQMD process. It wasn't so much that we didn't have standing it was that we needed to exhaust our administrative remedies, which, he though, we now have. We should sue Palo Alto, not the BAAQMD despite Palo Alto's claim that they're not scientists and are only relying on the district, for passing an "arbitrary and capricious act".

So, here's the process as I understand it from Ken.

There is a statute of limitations of maybe 30 days but probably 90 days in which to file suit.

The first step is to send the Palo Alto City Attorney a letter outlining our case and notifying him of our intention to sue, suggest what we want (allow fireplaces that have been determined by an independent EPA certified lab to be as clean-burning as EPA certified stoves) and enclose a "tolling agreement" which basically says, let's negotiate and waive the statute of limitations for filing suit while we're negotiating. Ken thinks there would be about a 25% chance of them signing the "tolling agreement" and negotiating with us at this point. The cost for Ken's service for this would be around $5,000.

If Palo Alto doesn't sign the "tolling agreement" Ken would file a "pre-empter writ" (file suit). This involves doing the case law background work and would cost an additional $5,000. The city would have to respond, however, and it would begin to cost them time and money. After they respond there would be another opportunity to negotiate and, if that failed, it could cost another $10,000 - or a total of $20,000 - to go to court.

Ninety percent of lawsuits are settled without going to court and we could back out at any level, bearing in mind that early success means convincing Palo Alto that we're in it for the long haul no matter what it costs.

I recommend we ask Ken to do the first $5,000 "tolling agreement" bit and that we urge Michael help make it as believable as possible by 1) telling everyone we think Palo Alto may be pivotal to the whole Bay Area and therefore very important to us and 2) all we want is for Palo Alto to permit fireplaces that meet any existing fireplace standard. I think this would send an important and timely message to both the BAAQMD and to San Jose. It would just be easier for them to be fair and allow fireplaces that have been determined by an independent EPA certified lab to be as clean-burning as EPA certified stoves.

Interestingly, I told Ken about the recent "historic review" referendum in Palo Alto and asked him if he thought a referendum would be effective for us. He thought it would, although it would take longer and depend on our ability to generate some interest and get the vote out. I thought I'd at least find out who ran that "historic review" referendum and how much they would charge us. Palo Alto isn't very big and we have the CHH Survey and a list of contacts.


Letter to Supporters Before the 6/6/00 Council Meeting:

Dear _________

The San Jose City Council will meet at 1:30 pm on Tuesday June 6 to consider a proposed woodsmoke ordinance, similar to the one passed recently in Palo Alto and recommended by the Bay Area Air Quality Management District, that would ban fireplaces. The meeting will be in City Council Chambers, City Hall, 801 North First Street at West Mission Street in San Jose.

It's important that we get enough people - masons, architects, builders, customers - from the San Jose area to come to the meeting and/or express their concern by letter, telephone or email to help persuade the Council to take a more fair and effective approach.

The proposed ordinance allows EPA certified stoves and pellet stoves but cites no performance standard for fireplaces even though standards appropriate for fireplaces do exist and independent testing shows that masonry fireplaces are often cleaner-burning than stoves. Based on this "arbitrary and capricious" language we will bring a lawsuit against Palo Alto (and San Jose too if they pass a similar ordinance). Our attorney has called the San Jose City Attorney and has been asked to attend the Council meeting Tuesday.

Our fight is really with the BAAQMD's model ordinance which bans fireplaces arbitrarily. For your information I've attached some "Talking Points" and there is a lot more background information on our website linked to "Emerging Fireplace Regulations in the California Bay Area" at You can also get some useful information about the San Jose Council from their website at And, finally, the San Jose Mercury News has both pro and con editorials on line at and

Most importantly right now, however is the attached list of masons, dealers, architects and builders [not attached on line]. The list is drawn from the people who have contacted me about Rumford fireplaces. You probably know many of them and could add more. I plan to start calling them all on Monday so if you see any errors or can add people or call others yourself, please let me know.

Thanks for your help. We really need it now.


Jim Buckley


San Jose Council Meeting Procedures, courtesy Pat.O'hearn, City of San Jose

The "Wood Smoke Ordinance" item is being cross-referenced out of the Committee Report and will be heard under the General Government portion of the June 6th Council Meeting as Item 9 L. You and members of your group are welcome to speak on this issue - each speaker should fill out a yellow speaker card which you will see in the Council Chambers and give them to the City Clerk. When the item is heard, the Mayor uses these cards to call the speakers to the podium. Each speaker is given 2 minutes to speak.


Talking Points

1) Ban on Fireplaces Unfair: The model ordinance advocated by the Bay Area Air Quality Management District (BAAQMD) bans fireplaces that may be as clean-burning as other wood-burning appliances that it would permit. The BAAQMD claims that the ordinance does not ban fireplaces but then they go on to explain that it merely requires fireplaces to meet a non-existent standard. Isn't that the same thing as a ban?

2) Existing Fireplace Standards: There are several fireplace emissions standards that the BAAQMD could use.

3) Better Science Soon: Earlier this year the industry funded the emissions testing by OMNI, an EPA Certified lab, of four masonry fireplaces, a factory-built fireplace and an EPA certified stove, each tested to four emissions standards - the Washington Fireplace Standard, the emerging Northern Sonoma County Fireplace Standard and both EPA Method 5-G and 5-H. The objective is to get direct comparisons between all six appliances and all four emissions testing standards. The results are almost finished and the industry is committed to a peer review by Dr. Dennis Jaasma at Virginia Polytechnic Institute and re-testing at least one of the fireplaces in another independent EPA certified lab to confirm the results.

4) Table for a Rational Decision: We urge the Council to table this proposed ordinance for only a couple of months until a rational decision can be made based on the emerging test results mentioned above and until an appropriate fireplace emissions standard can be identified.


A Loss In San Jose
San Jose Council passed to a 2nd reading, an ordinace based on the Air District's model banning fireplaces.

I am going to use the occasion of your message to this group to update everyone on the results of yesturday's city council meeting in San Jose.

In brief, the council passed to a 2nd reading, an ordinace based on the Air District's model. In fact, they passed it on unanimously. All the public comments were given two minutes each, Michael Gersick was given just a little more time because he asked to raise a procedural issue before his time started but when it became clear that he wanted to talk about how difficult it was to find out when the transportation committee was meeting (which is clearly where the details were supposed to be dealt with), the Mayor began the two minutes.

My comments focused on giving the building department discretion to approve 'other than EPA certified appliances', based on another communities ordinance (Petaluma, California). One citizen urged the council to pass this for his asthmatic son, and another congratulated the council for considering this, and urged them to pass it, citing the mis-information in that area about woodsmoke being a significant cause of Dioxin in San Francisco Bay.

No masons, no builders, no citizens of any strip who thought this was a good idea.

This issue is clearly finished, UNLESS, local people raise a great deal of indignation. My sense is that no one in that area cares that, after August, or thereabouts, no permit will be issued for a woodburning appliance that is not either, EPA approved, or pellet burning.

I'm very discouraged, particularly given the amount of local focus that Michael Gersick has been able to bring to this, thanks to Jeff McNear, and other's who have contributed to that effort.

I should mention that HPA has been doing more than just cheering Michael on, I did norganize an op-ed piece in the San Jose Mercury News on rather short notice, see: for HPA's piece, and Is that Fireplace a Respitory Danger, for the Mercury New's Pro view.

Today, for a story on the council meeting, see:

In anyone on this list has any questions I will be out until next Tuesday, but will be happy to answer any questions next week. Please do not direct any customers who might want to help to me, however, Michael might be interested in speaking to a local builder or mason who cares about this. Also, San Jose is a fairly net centric town, so all of the contact info for the council is on the web. I would caution folks who wish to try and intervene, that a local address is probably the only relevant item right now for standing on this issue, all non-locals should find a person within that town to funnel their concerns through.

John Crouch


For a more colorful report and no-holds-barred political analysis by the "CH&H/Literary Division" click here.


The San Jose Merc's account of yesterday's hearing can be found at:

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