Mafia Tactics
7/1/23
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The tactics of harassment, intimidation and bribery used by the Mafia are surprising and unsettling when used by our environmental friends working for the progressive state of California.
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Masonry Fireplaces Threatened Masonry Fireplaces are permitted in Most Areas Masonry fireplaces are inherrently clean-burning and only used occasioally so the EPA does not regulate masonry fireplace emissions. Masonry fireplaces are permitted in most of California and almost all of the rest of the country. Americans love their fireplaces and BBQs and the fact that they are environmentally responsible, use renewable fuel and can be relied on in an emergency. The air regulators would ban all wood-burning if they could and they are doing it by disingenuous regulation. The Placer County Air District has threatened to fine the Buckley Rumford Co. (BRCo) up to $75,000 per day because they sold the components to build a Certified Rumford fireplace to a customer who had a building permit to build it. California Building Standards Code of Regulations Title 24>
Harassment and Intimidation It may be hard to prove, but that's exactly what the air districts are doing. After receiving the Notice of Violation (NOV) and being threated with huge fines without any recource short of an expensive countersuit, do you think we will ever sell or build another fireplace in Placer county? They have won. They don't even have to enforce the NOV. We think that is how the various air districts in California have persuaded our dealers to stop selling fireplaces even where they are permitted. Should we fight? You might think that the regulators are guity of administrative overreach extending their ban on advertising beyond their jurisdiction and beyond their reguatory mandate. Or maybe they are arbitrary and capricious and hae stooped to harassment and intimidation. Problem is courts defer to administrative agencies even if they are ambiguous, disingenuous or arbitrary and capricious under a doctrin known as the "Chevron" principle, although that is currently under scuteny in the Supreme Court for usurping the function of the court to interpret laws. Due process and the derived presumption of innocence guaranteed by the 5th and 14th Amendments seem to be our best legal argument. Besides the lack of an administrative prosses to question, clarify, offer alternative ways to compply with an Air Distric Rule or appeal an Air District decision, the District went directly from accusation to penalty, depriving us of our rights guaranteed in the 5th and 14th Amendments to "life, liberty, or property, without due process of law." But really - Should we fight? Are we ethically justified? Are we on the right side of history? Fireplaces do emit pollution and so do stoves. Burning wood, however, can be better than heating with a fossil fuel or even eletricity generated by fossil fuel. Wood-burnig can be done environmetally responsibly and wood can be a renewable fuel. Is using a fireplace to heat one room rather than turn up the furnace, less polluting? Dither, dither, dither. We are all polluters. We drive cars that pollute. Maybe if we don't drive to work or to the grocery store we could have a fire or cook out that evening. It might take an effort - time and money - to mount a class action lawsuit. And it's sobering to find out that some of the best legal precidents are set by the NRA, the tobacco industry or buisinesses that abuse geese or pigs. Maybe some of the ways to curb police brutality could be useful. Or fighting against some of th draconian rules to enforce abortion bans, like arresting doctors, banning interstate travel, promoting citizen's arrests, could guide us. Of couse some people support abortion bans and some may support the air districts efforts to ban wood-burning but most Americans think abortion should be legal and they love their fireplaces. Stoves and masonry heaters are next
The Bay Area Air Quyality Management Disstrict (BAAMD) has banned all wood-burning devices in new building construction in the Bay Area
If you have a stove store anywhere in the Bay Area will you be able to stay in business after the BAAQMD sends you a Notice Of Violation?
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The possible legal issues (Based on watching TV and checking Google) Administrative overreach By prohibiting advertisng and selling of masonry fireplaces even wher they are permitted as in most of California and even in areas that regulate fireplace emissions in certian situations, we think the Air Districts are extending their rules beyond their jurisdiction and beyond their reguatory mandate. This may also be seen as Air District administrators assuming the authority to interpret their own rules which is a role that the Constitution reserves to the courts. The The "Chevron" principle, named after the famous 1984 decision in Chevron v. National Resources Defense Council holds that when a federal statute is ambiguous under the ordinary rules of statutory construction, a court ought to defer to the interpretation of the statute made by the relevant administrative agency. Chevron is commonly regarded as the rock on which the modern administrative state rests, giving agencies a huge advantage when their activities and regulations are challenged in court. Yet it has been attacked recently by Justice Neil Gorsuch and Judge Brett Kavanaugh as an unprincipled abnegation of the judicial function. Gorsuch and Kavanaugh argue that Chevron effectively grants executive branch officials the authority to interpret laws, a role that the Constitution reserves to the judicial branch and ultimately the Supreme Court. Arbitrary and Capricious Under the "arbitrary and capricious" standard of review, courts look to see whether agencies have taken a "hard look" at the underlying questions of policy and fact upon which their decisions are based. If the Air District objective is to ban all wood-burning they probably did take a "hard look" but probably won't publicly reveal their nefarious intentions. Administrative Process The Administrative Procedure Act (APA) Due process Due process may be our best legal footing. Besides the lack of an administrative prosses to question, clarify, offer altenative ways to compply with an Air Distric Rule or appeal an Air District decision, the 5th an 14th Amendments guarantee that the government cannot take a person's basic rights to "life, liberty, or property, without due process of law." The due process right is designed to protect citizens from actions taken by state government, counties, towns, and cities. The presumption of innocence It is a cardinal principle of our system of justice that every person accused of a crime is presumed to be innocent unless and until guilt is established beyond a reasonable doubt. This is derived from the rights guaranteed in the 5th and 14th Amendments to "life, liberty, or property, without due process of law." Restraint of trade Common law, mostly used to prevent monopolies, but could prevent the Air Dist. from restraining our trade where it is legal or out of their jurisdiction. Disingenuous rules Placer County Rule 225, like many air distict rules, is disingenuous or dishonest in that it is written to sound reasoable but the District has no intnetion, and never has, to approved any firepace or wood-burning appliance under Section 302.2.2.4. Example is the 1999 BAAQMD letter. This is legislatioin by disingenuous rules. Harassment and Intimidation I couldn't find much on regulatory or government officials harassing and intimidating people or businesses, but that's exactly what the air districts are doing. After receiving the NOV and being threated with huge fines without any recource short of an expensive countersuit, do you think we will ever sell or build another fireplace in Placer county? They have won. They don't even have to enforce the NOV. Is that how the various air districts have persuaded our dealers to stop selling fireplaces even where they are permitted? Entrapment Building permit approval - then District interveines and forces reversal. What is the case law on building permits that are reneged? Is Rule 225 so obvious that no judgnment is necessary? No administrative "due process" within the District. NOV is an accusation and a judgement in one document without any interveining independent third party commission, board or court. What's the defense?
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Loose ends, redundancies - need editing ... Masonry fireplaces are permitted in most of California and the rest of the country because they are relatively clean-burning, only occasionally used and are not regulated by the EPA.
Leagl right to a trial - presumption of guilt Accusation to punishment
Assumptions: We did not intend to violat Rule 225. We thought the Building Official had made the correct decision based on our Test Resuls. After the fact, reading Rule 225 closely, it is silent on masonry fireplaces except to define fireplace and exempt them from Section 303 whicgh has to do with transferring of property. Rule 225 does not ban or permit masonry fireplaces. Maosnry fireplaces are not mentioned in Sections 301 or 302 which deal with allowed emissions standards. Rule 225 does, however permit pellet stoves and masonry heaters and cookstoves - similar to the EPA Title 40 stove standard, except that the EPA standard also permits masony fireplaces becasue they are typically used occationaly and not for heating. In particular Section 302.,2.2.4 of Rule 225 seems to invite discression and alternative ways to meet the standard but there is no way to pursue that. The building official might consider these issues when approvng a permit but there was no expectation or recommendation to check with the Air District after getting a buiding permit to see if they agreed with the building official. Placer Air District may be able to enforce their rules but it's not at all clear how. Since all masonry firepaces are built into houses or buildings and building permits are required, the building official would seem to be the logical interpretor and enforcer of the Air District rules as they apply to masonry fireplacs. The threat of a fine up to $75,000 per day and the per day feature seems inappropriate - to have some other sort of industrial polluter in mind.
Summary The Air District says the Rumford does not meet their stove emissions standards. We say it does by an equivalency developed by the EPA and accepted in Washington and Colorado. The Rumford fireplace is probably cleaner than the stoves thay do apporve expecially when you consider, as the EPA does, that fireplaces are only occasially used. Rumford fireplaces are as clen-burning as a masonry heater according to tests for approval in Colorado. There does not appear to be an administrative way to question, suggest alternative ways to comply or appeal their decision. Point is the Building Official made the decision to approve the fireplace after reading our test results.
Not Guilty - the legal defense Administrative incompetance - Notice Of Violation (NOV) cites the wrong section of code, is unclear what we are alleged to have done and threatened an inappropriate penalty per day enhanced by alleging this is our second offence since another customer appied for (and didn't receive) a permit to build a Rumford fourteen years ago. Administrative obfuscation - How to resolve a revisited (alleged mistaken) building permit. No administrative procedure short of a penalty Arbitrary and capricious - There was no intent to violate the Air District rules as implied in the NOV. Rule vague and unclear - Violation of the Constitutiona right to a fair trial - Presumption of guilt without any due process or access to an independant commission or court before assessing a penalty. We did not have an opportunity to pleade not guilty or present our case except to the Air Distric accusers who's minds were made up. Harassment and Intimidation can't be legal.
Beyond the Defense - Counter suit or a Class Action lawsuit Lack of due process - not clear who interprets and enforces rules. Lack of administrative way to resolve questions or consider alternative ways to comply. Restrait of trade - Masonry Fireplace are inherrently clean-burning and used only occassiohnally, not as heaters, and so are exempted from EPA wood smoke rules. Masonry fireplaces are permitted in most of California as well as the rest of the country and even permitted in areas that do regulate fireplace under certain circumstances. The industry shoul not be prevernted from promoting and selling masonry firepalces where they are permitted - most places. Harassment and Intimidation can't be legal. What do we need to establish standing and to file a Class Action lawsuit?
Certified Rumford Test Results Notice of Violation
This is just wrong. The EPA exempts masonry fireplaces because they are inherrently clean-burning and typically only burned occasionally. Certified Rumford fireplaces are as clean-bunig as EPA stoves by an equivalency developed by the EPA and accepted in Washington and Colorado and when you consider that they, like all firepaces, are only used occassionally, a Rumford fireplace will not pollute as much as a stove which is approved. Administrative overreach - The ban on advertising could be enforced on anyone anywhere who promotes or advertises masonry fireplaces. Administrative incompetence - The NOV charged us with the wrong section Section 3021.2 of code, which they characterize incorrectly as prohibiting "the selling, advertising, offering for sale or supply of a wood-burning appliance not certified to meet EPA ..." which is pretty close to Section 302.2.2. It's not clear what we are charged with - selling, advertising, offering for sale, or installing. Administrative obfuscation - We think we comply with Section 302.2.2.4 in that we meet the stove standard by an equivalent test developed by the EPA to be appropriate for fireplaces and accepted in Washington and Colorado. Placer County Air (Springsteen) says they have not approved any appliances under this section which means that section is designed to sound reasonable but actually hides an outright ban. Second offense? - The NOV also says the District has previously informed us that our fireplace does not meet their standard. We didn’t initiate either of our customer’s requests for building permits to include a Rumford fireplace. We said then as we still say our Rumford meets the EPA stove standard by an equivalency worked out but he EPA and accepted in Washington and so we think is does comply with their rules. That previous case was 14 years ago when an architect applied for a permit which was denied and the Rumford was not built. If this is meant to show that we knew about Rule 225, fine, we did. But the fireplace was not built 14 years ago and we did not initiate that request nor this recent case. Lack of due process - acting as enforcer, judge and jury (presumed guilty without providing a way to defend ourselves and going straight to a penalty assessment). Lack of clarity about how rule 225 in enforced. We think the building official enforces the rules as in the past and in other counties and cities and stated explicitly in the BAAQMD 1999 letter to cities in the Bay Area. Arbitrary and capricious - another way to say Administrative obfuscation and Lack of due process. Restraint of trade - Especially the prohibition of selling, advertising, offering for sale or supply .. appears to apply to any masonry materials dealer, architect, builder or mason who specifies, promotes, sells the components to build or builds a masonry fireplace even in areas and situations where fireplaces are permitted. Selective enforcement of over broad rules - The prohibition of selling, advertising, offering for sale or supply seems to apply to anyone anywhere. We only advertise on the Internet - not in Placer County. Our dealers promote, advertise and sell components for masonry fireplaces in many areas where they are permitted Harassment and Intimidation - Threatening fines without any opportunity to discuss exceptions or work out compliance by alternative methods.
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Masonry fireplaces are the low hanging fruit.
At least the stove industy has the Heath Patio and Barbeque Association (HPBA)
and the maosnery heater builders have the Masonry Heater Association (MHA).
We need a masonry fireplace organization.
Help Us Fight for Masonry Fireplaces
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