Save Our Summers (SOS) and the family of Tim Krautkraemer file this appeal pursuant to RCW 34.05.330(3), a statutory provision permitting the public to appeal a State agency’s denial of a Petition for Rulemaking (Petition). See Attachment A. We appeal the Washington State Department of Ecology’s (Ecology) decision denying our Petition for Adoption of Wheat Stubble Burning Rule received by the Center For Justice on January 16, 2001. In addition, Petitioner’s respectfully request a hearing with the Governor prior to a decision being made in this matter.

The Washington State Clean Air Act (Clean Air Act) affirmatively requires Ecology, in the implementation of its programs and policies, to protect human health and safety, including the most sensitive members of the population. RCW 70.94.011 (1991). Furthermore, the Clean Air Act requires that Ecology condition all permits for wheat stubble burning to insure that safety to life and property are fully considered. RCW 70.94.650(1)(c)(1998). The Washington State Administrative Code requires that Ecology establish controls for agricultural burning in the state in order to minimize adverse health effects. WAC 173-430-010 (1995).

Ecology’s wheat stubble burning program is in violation of the law. Petitioner’s assert that the only way for Ecology to gain compliance with the law is to initiate the rulemaking process which would insure that both a health-based assessment and a cost-benefit analysis would be done on the impacts of wheat stubble burning.

SOS is a non-profit advocacy group whose members include individuals who are physically impaired by exposure to pollutants in the air. SOS members live, breathe, work, pay taxes, vote and recreate in the State of Washington. SOS is dedicated to the protection of the general public, and in particular its sensitive members, whose very lives are endangered each time Ecology fails to regulate wheat stubble burning as mandated by statute. Ecology’s knowing and reckless disregard for the public’s health, in its failure to regulate wheat stubble burning, puts the State of Washington in jeopardy of legal liability as well.

Tim Krautkraemer and his family reside in Pullman, Washington. Eleven-year-old Tim suffers from allergies and asthma. Tim, and many other cardiac and/or respiratory impaired individuals, are often required to take high-risk steroidal medications during wheat stubble burning season in order to prevent infection and potential hospitalization. Even when Tim and others like him do take these steroids, they may not be able to prevent hospitalization arising from the deadly air pollution caused by wheat stubble burning. These same individuals - - young and old - - are often precluded from enjoying everyday activities such as playing outdoors with their friends, participating in their religious practices by attending church, going to state parks or pools, attending school and participating in after-school extracurricular sports/events.

The Krautkraemers, SOS and its members, and others in similar situations as Tim, have invested thousands of hours of personal time, energy and financial resources in order to advance public awareness and safety regarding wheat stubble burning and in an attempt to work with Ecology to fulfill its legal obligation by promulgating and enforcing regulations for wheat stubble burning.

The Center For Justice (CFJ) is a public interest non-profit law firm who represents those who because of financial or political impediments would not otherwise have a voice in the legal system or an opportunity to be fully and fairly represented. The driving motivation of CFJ is purely and simply that of justice and fairness in our community. CFJ’s brochure is attached. See Attachment B.

III. BACKGROUND

SOS and the Krautkraemers’ historical background are clearly detailed in Section III Paragraph A of the Petition. See Attachment A. Below is that background as written in the original petition filed with Ecology on November 14, 2000.

SOS and the Krautkraemers have made many efforts over the last several years to reach an agreement with Ecology regarding a program or policy that would restrict wheat stubble burning in Eastern Washington. Due to Ecology’s failure to respond to SOS’s good-faith attempts to address the health impacts of wheat stubble burning, SOS filed three lawsuits against the Department of Ecology in 1999. The following discussion details the efforts of SOS and the Krautkraemers to gain relief from the wheat stubble smoke which impacts thousands of Eastern Washingtonians.

In October of 1998, SOS presented to Ecology’s Agricultural Burning and Research Task Force a proposal for regulating wheat stubble burning in Eastern Washington. Specifically, SOS suggested an approach consistent with the State’s regulations adopted in 1998 at Wash. Admin. Code §173-430-045 (1999), to reduce and ultimately ban bluegrass burning in the same region based on public health concerns. Ecology did not respond to this proposal.

On December 4, 1998, at Ecology's invitation, members of the American Lung Association of Washington (ALAW), the Washington Environmental Council (WEC), Save Our Summers (SOS), and the Northwest Environmental Education Foundation (NEEF) met with Ecology officials to express their concern regarding wheat stubble burning and its effects on public health. At this meeting, Ecology officials informed attendees that the agency intended to set a health-based target as a part of promulgating any rule or taking any action regarding the granting of permits to farmers to burn wheat stubble.

Unfortunately for SOS members and Tim Krautkraemer, in November and December 1998, during the same time Ecology met with ALAW, WEC, SOS, and NEEF, Ecology was privately and secretly negotiating a Memorandum of Understanding and Agreement (MOU) with the Washington Association of Wheat Growers (WAWG) and the Washington State Department of Agriculture (Agriculture). Ecology did not inform the representatives of ALAW, WEC, SOS, or NEEF that it intended to try to control stubble burning by voluntary agreement with an industry organization. Ecology, WAWG, and Agriculture signed the MOU in mid-February 1999 with no input from the public or any other health organization. The MOU does not consider the public health effects of large-scale wheat stubble burning.

The MOU proposes a voluntary reduction in emissions of up to 50% by June 30, 2006. As a baseline against which reductions are to be measured, Ecology chose the amount of acreage burned in 1998, the highest year on record. If the MOU is implemented as proposed, there could be more smoke from wheat stubble burning in Eastern Washington in 2006 than there was in 1996. This is unacceptable and will provide no respiratory relief for members of SOS or for Tim Krautkraemer.

Upon learning of the MOU proposal, ALAW, WEC, SOS, NEEF, and several other public interest groups held a press conference on January 27, 1999, in Spokane to protest the proposed MOU and their exclusion from the process by which Ecology was negotiating the MOU with WAWG and Agriculture. During that same time, Ms. Patricia Hoffman, Chair of Save Our Summers, resigned from her position on the Agricultural Task Force because of the MOU’s exclusion of public health experts. Ms. Hoffman had been a member of the Agricultural Task Force for two years as a representative for SOS. During those two years, Ms. Hoffman sincerely believed that the Agricultural Task Force was working towards a method for controlling wheat stubble burning in a good-faith way that would satisfy both public health groups and farmers.

These public interest groups then sent a letter to Governor Locke on January 27, 1999. The letter requested that Governor Locke void the MOU and require Ecology to initiate a regulatory process whose outcome would be consistent with the public health protection provisions of the Washington Clean Air Act and the Federal Clean Air Act. Governor Locke refused to intervene, to honor SOS’ request, or to require Ecology to conduct a public health analysis of wheat stubble burning.

SOS was not the only group of citizens who took issue with Ecology’s failure to consider public health when it entered into the MOU. On February 4, 1999, the Board of Directors of the Spokane County Air Pollution Control Authority (SCAPCA) voted to communicate to Governor Locke its concerns about the process by which the MOU was negotiated and the agreement’s potentially negative consequences on air quality in the Spokane area. In February of 1999, the SCAPCA Board sent a letter to the Governor expressing concern about the perpetuation of smoke intrusions into Spokane that could jeopardize Spokane’s ability to comply with new particulate standards promulgated under the Federal Clean Air Act. The Board concluded its letter to the Governor by stating, "Our economic well being and public health depend on your intervention." To date, Governor Locke has failed to intervene.

On March 12, 1999, SOS filed a lawsuit against Ecology and the Washington State Department of Agriculture in the Thurston County Superior Court. The lawsuit alleged that Ecology and Agriculture: 1) adopted and applied a new rule (the MOU) without following the rule making procedures required by the Administrative Procedures Act; 2) violated the Washington State Clean Air Act; and 3) violated the Washington State Environmental Policy Act.

On September 24, 1999, the Thurston County Superior Court Judge Richard Hicks granted Ecology’s Motion for Summary Judgment and held that the MOU is purely voluntary, unenforceable, and thus not reviewable by the court. The Judge further stated that the Best Management Practices (BMPs) which are incorporated into burn permits are also voluntary, and the farmers are not obligated to follow them. In sum, the Judge ruled that Ecology has no regulatory policy in effect in the State of Washington for limiting the numbers of acres of wheat stubble burning that may occur annually. Accordingly, the farmers burn an extremely high number of acres of wheat stubble, regardless of its impacts on public health.

In August of 1999, Save Our Summers sued Ecology in Thurston County Superior Court for a violation of the Public Records Act. The documents SOS alleged Ecology had withheld were documents within Ecology that demonstrated Ecology’s close contact and negotiations with the wheat farmers in November and December of 1998, a time just prior to the MOU being signed. (At the same time, during November and December of 1998, Ecology was systematically denying to Save Our Summers that it was negotiating a deal on wheat stubble with WAWG.) Save Our Summers prevailed in the lawsuit and received costs and attorneys’ fees. In his ruling, the presiding judge, Thurston County Superior Court Judge Strophy, stated he understood how SOS could have interpreted the withheld documents as "smoking guns."

In October of 1999, Save Our Summers, Timothy Krautkraemer, and Alexandria Heisel sued Ecology in the Federal District Court for Eastern Washington. The lawsuit alleged that Ecology discriminated against Timothy and Alexandria under the Americans with Disabilities Act and the Rehabilitation Act by allowing virtually unrestricted wheat stubble burning in Eastern Washington.

As a consequence of that lawsuit, Save Our Summers, and the Krautkraemer and Heisel families, agreed to engage in mediation with Ecology, the Washington Association of Wheat Growers (WAWG), and the Environmental Protection Agency (EPA) between April and August of 2000 with the purpose of settlement of the ADA lawsuit.

At the end of the numerous and costly mediation sessions, Ecology proposed a settlement on August 17, 2000. Although SOS had serious reservations about the protection to be afforded their members pursuant to the agreement, SOS was prepared to sign the document on August 17, 2000, in the interest of moving towards protection of public health, and building a positive working relationship with Ecology and WAWG. In the past, SOS had been suspicious and distrustful of Ecology because of its failure to include clean air advocates in the MOU process, as well as Ecology’s failure to publicly recognize that wheat stubble burning was harmful to public health. Part of SOS’ concern arose from documents SOS received in a Public Records Request in 1999. These documents demonstrate Ecology’s knowledge that there are reasonable alternatives to burning, and that Ecology has known since at least 1992 that pollution from field burning aggravate heart disease, throat and sinuses, and reduce lung function, especially in children.

Although SOS and Ecology were willing to sign the settlement agreement, the agreement became moot when WAWG refused to sign the document at the eleventh hour on August 17, 2000, as Ecology and SOS members were left sitting at the table waiting for the signature.

In a continued good-faith attempt to settle the lawsuit, Ecology and SOS reached a somewhat modified agreement on August 23, 2000. Although WAWG had been notified of the settlement meeting between SOS and Ecology, WAWG failed to attend the meeting. On August 23, 2000, the parties to the lawsuit, SOS and Ecology, reached an agreement that would begin the settlement phase of the lawsuit, but most importantly begin the rulemaking process which SOS believes will protect public health in Eastern Washington. The agreement accorded Ecology a large amount of discretion in implementation of the settlement; however, SOS was willing to grant Ecology this discretion based upon the goodwill gained between SOS and Ecology during the six-month mediation process.

Unfortunately, less than forty-eight (48) hours after the settlement agreement was signed, the Director of Ecology, Mr. Tom Fitzsimmons, who declined to be present during any of the mediation meetings, publicly announced that Ecology would breach its contract and terminate the agreement signed by the parties on August 23, 2000. Once again, SOS was left disillusioned and shocked by the unprofessional and biased behavior of Ecology.

In October of 2000, SOS, et. al., amended its complaint and added six (6) additional plaintiffs who are aggrieved by the wheat stubble smoke. In the second amended complaint, Plaintiffs listed specific reasonable modifications that they believe could be made to Ecology’s wheat stubble program to result in the cessation of discrimination against the Plaintiffs. The case is currently set for trial in July of 2001 and Plaintiffs are seeking damages, reasonable modifications to Defendants’ air quality program, as well as costs and attorneys’ fees.

The clear and unambiguous intent of the Washington Clean Air Act is to "secure and maintain levels of air quality that protect human health and safety, including the most sensitive members of the population." RCW 70.94.011 (1991). Ecology’s current pretense at wheat stubble burning regulation fails to protect the general population, much less sensitive individuals, such as Tim and other SOS members. Each year many sensitive residents in Washington have to take dangerous steroid medications, increase the amount and doses of their routine medications, and forego engaging in activities of their choice during wheat stubble burning season in order to breathe. Unfortunately, even after taking precautions some of these individuals must still be hospitalized because of the adverse health effects of wheat stubble smoke. Occasionally, even hospitalization is not enough and the wheat stubble burning causes the death of an individual who is sensitive to the smoke.

As set forth in the Petition, Ecology has a legal obligation to promulgate effective rules protecting "human health and safety" of Washington residents. Ecology Director, Mr. Tom Fitzsimmons, acknowledges this requirement, but then explains Ecology’s lack of effective regulations and the denial of rulemaking as, "We believe the current focus of the program is the most efficient strategy to control agricultural burning as quickly and effectively as possible with available resources." See Attachment C, page 3, last paragraph.

In his letter denying Petitioner’s rulemaking request, Mr. Fitzsimmons also states that the RCW 70.94.011, the general introductory statement of the Clean Air Act requires that Ecology "balance multiple interests, including health and economics." Attachment C, page 1, last sentence in paragraph 2. This statement demonstrates Mr. Fitzsimmons’ gross misunderstanding of the Clean Air Act. RCW 70.94.011 states,

RCW 70.94.011.

Based on Mr. Fitzsimmons’ letter, it appears that he interprets the sentence, "to promote the economic and social development of the state" to mean that he should allow farmers to burn unlimited acres of wheat stubble, even if it results in life-threatening health problems for thousands of Eastern Washington citizens. Mr. Fitzsimmons is clearly misreading the legislative intent of this statement. This statement was not intended to address polluters’ interests.

Petitioners’ assert that this sentence instead refers to the Legislature’s intent to reduce air pollution so that business development, such as tourism and other outdoor activities will thrive. As Duane Hagadone, the owner of the Coeur d’Alene resort in Coeur d’Alene, Idaho has learned; tourists won’t come to a first-class hotel during burning season because the air is hazy and full of smoke, often creating respiratory problems for his guests.

Furthermore, in what Mr. Fitzsimmons claims to be a "balancing of multiple interests", Ecology has clearly determined the economic rights of the farmer outweighs the right of each and every other resident in the State of Washington to breathe clean air. This decision has been made without a health-based assessment or a cost-benefit analysis as required by rulemaking. In essence, Ecology’s policy is that any commitment from the wheat farmers to reduce wheat stubble burning is enough for Ecology to fulfill its obligations under the Clear Air Act. Petitioners strongly disagree.

The Petitioners presented substantial and compelling evidence in support of their Petition for rulemaking. Evidence included documentation of multiple violations of RCW 70.94.650(1)(c) of the Washington Clean Air Act by Ecology delegates in issuing burn permits. In SOS’ review of several counties’ burn permits for the fall of 2000, SOS discovered that none of the permittees were required to demonstrate that the public interest, or safety to life and property requirements of RCW 70.94.650(1)(c) were given any consideration whatsoever. See exhibits attached to Attachment A.

Moreover, many of the permit applications failed to show that burning was "reasonably necessary" under the Best Management Practices (BMP) and that "no practical alternative was reasonably available" as required under WAC 173-430-040(1). Pursuant to Ecology’s Best Management Practices (BMP), economics should not be a sole factor in documenting the need to burn. Nevertheless, many of the burn permit applications gave economical considerations as the only reason to burn. See exhibits to Attachment A.

In addition to repeated statutory violations by Ecology and/or its delegates in the permitting process, evidence was provided to Ecology on the scientific findings and the detrimental medical impacts on some of the petitioners during wheat field burning. Expert medical opinions were submitted in the form of affidavits attesting to the fact that wheat field burning is detrimental to citizens of Washington, and especially to sensitive individuals such as petitioners. There is not one piece of evidence that supports the health benefits of wheat field burning. In fact, many farmers in Washington do not engage in the archaic farming practice of wheat field burning. Nevertheless, Ecology continues to allow burning in spite of the overwhelming evidence that alternatives exist.

In summary, Ecology’s alleged wheat stubble burning program fails to protect public health as required by law. Contrary to Mr. Fitzsimmons’ assertion, Ecology’s wheat stubble burning program is in violation of RCW 70.94.011, RCW 70.94.650 and WAC 173-430-070. Ecology’s continued failure to follow statutory guidelines is a blatant and reckless disregard toward Washington residents. SOS would prefer to have Governor Locke remedy this situation rather than for SOS to continue to engage in both court and media battles with Ecology.

The Petitioners also demonstrated with overwhelming and compelling evidence that Washingtonians suffer irreparable harm as a result of wheat stubble burning. It is only good policy to initiate the rulemaking process to insure the health of each and every Washington resident.

Ecology claims that it is "currently operating in full compliance with our statutory authority." See Attachment C. As noted throughout this appeal and in the original Petition, Petitioner’s strongly reject this assertion.

Petitioners question whether Ecology has the ability to make objective decisions on this issue given Ecology’s clear choice to exclusively represent the wheat farmers, the lobbyists for the Washington Association of Wheat Growers, and the Senators and Representatives voted into office by the agricultural community. See Attachments D, E and F.

Mr. Fitzsimmons has repeatedly given an appearance of conflict on this issue. Ecology’s entrance into the MOU, without having consulted the medical or scientific community, is a plain example of a bias towards the industry.

Then, after the mediated agreement was signed by agents for Ecology in August of 2000, Mr. Fitzsimmons and the Washington Attorney General, Christine Gregoire, apparently engaged in a private conversation with a representative or a member of WAWG. Following these conversations, Mr. Fitzsimmons immediately and publicly repudiated the signed contract without first contacting SOS or its legal counsel.

On September 1, 2000, Mr. Fitzsimmons met with SOS and its attorneys to explain why he was going to terminate the agreement reached during mediation. Mr. Fitzsimmons explained that he felt it was necessary for the wheat farmers to agree to any regulations imposed on them. This statement demonstrates an atypical (and some would argue improper) relationship that exists between the Director of the Department of Ecology, and an industry that Ecology is charged with regulating. Fortunately for the citizens of Eastern Washington, Mr. Fitzsimmons has not agreed to allow other industries such as Kaiser Aluminum to dictate the levels of pollution their industries may emit.

A further irony to Mr. Fitzsimmons’ insistence on the farmers’ presence in any settlement agreement is that the federal district judge presiding over the American’s with Disabilities Act lawsuit, denied WAWG’s motion to intervene in the lawsuit. Therefore, WAWG would not be a proper party to any settlement negotiations or agreement.

Next, in its denial of Petitioner’s rule request, Ecology determines that it is not necessary to initiate rulemaking at this time because it is going to continue to "rely on its current initiatives" of the "voluntary commitment of wheat growers to reduce emissions." Furthermore, Ecology has "suffered drastic cutbacks," but is seeking funding for two (2) "future" actions for "studies."

First, these "voluntary" or cooperative efforts made by Ecology or WAWG have failed to protect public health. Petitioners’ evidence proved that neither the State of Washington nor the private farming industry is protecting the public from the adverse effects of wheat field burning. Although WAWG has anecdotal stories about their efforts to decrease the amount of wheat field burning, Petitioners respectfully implore the Governor to note that if WAWG truly wanted to decrease their burning they would follow the farmers’ lead in Washington who do not burn at all. Wheat field burning is not necessary and the farmers who burn cannot be trusted to police their own industry.

The petition for rulemaking procedure, RCW 34.05.330(1), expressly gives the agency the discretion to deny rulemaking. However, this provision requires that the agency state the "reasons for the denial, specifically addressing the concerns raised by the petitioner." RCW 34.05.330(1)(a)(i). Nothing in Mr. Fitzsimmons’ letter denying Petitioners’ request for rulemaking specifically addresses the concerns raised by the Petitioners that individuals with respiratory problems, such as Tim Krautkraemer, are unable to attend school, recess, and must take increased dosages of medication during field burning season. To date, Ecology has no plan to deal with the hundreds of individuals who are deprived of the most basic rights during field burning season. This is unacceptable. It is time that Ecology stops using our children as guinea pigs in making the determination that wheat stubble burning in large concentrations is harmful to public health.

Federal environmental law makes clear that an agency cannot postpone action on the grounds that voluntary, unenforceable measures render the action unnecessary. Biodiversity Legal Foundation v. Babbitt, 943 F.Supp. 23 (Dist. D.C. 1996); Southwest Center for Biological Diversity v. Babbitt, 939 F.Supp. 49 (Dist. D.C. 1996). In these cases, the U.S. forest Service agreed to modify its timber harvest practices and, as a result, the U.S. Fish and Wildlife Service (USFWS) determined not to list certain species under the Endangered Species Act. The Courts held that USFWS’ decisions were arbitrary and capricious because the agency cannot use promises of future actions as an excuse for not making a determination based on the existing record. See also Oregon Natural Resources Council v. Daley, No. 97-1155 (June 1998) (the National Marine Fisheries Services’ decision not to list coho salmon in Oregon was arbitrary and capricious to the extent the decision was based on plans for future actions or commitments).

WAWG’s "commitment" to voluntarily "reduce emissions" is a stall tactic. If WAWG and Ecology were truly committed to a reduction in wheat field burning pollution they would have used a baseline other than the 229,000 acres used in the MOU.

Next, Mr. Fitzsimmons’ letter states that Ecology has "suffered drastic cutbacks" and that it has chosen its course of conduct because it was the "most efficient" strategy with limited resources. This justification is unlawful under Washington law. It is well established that State agencies must comply with statutory mandates regardless of an agency’s decision to allocate resources to various subject areas. Coalition for the Homeless v. Department of Social and Health Services, 133 Wn.2d 894, 907-08 (1997). While agencies retain discretion over whether and when to engage in rulemaking with regard to a particular subject area, WWHT v. Wometco Home Television, 656 F.2d 807, 817 (D.C. Cir. 1981), an agency cannot refuse to initiate rulemaking if the agency violates a statutory mandate or ignores the facts presented to the agency in support of the rulemaking request. WWHT, at 817 (citing Action for Children’s Television v. FCC, 564 F.2d 458, 479 (D.C. Cir. 1977).

If Ecology cannot operate a wheat stubble burning program that meets the requirements of the Clean Air Act, then Ecology should not allow any wheat stubble-burning period. Furthermore, it seems a bit suspicious to SOS that Mr. Fitzsimmons would choose to blame "budget problems" for Ecology’s failure to protect the public health. Ecology’s own documents demonstrate that Ecology has known since the early 1990s that agricultural burning smoke harms public health.

The Governor should closely review the evidence attached to SOS’ rule Petition. While it is common for the Governor to defer to his agencies and their directors, not all actions should be indiscriminately deferred to any agency or to the person in charge of that agency. Ecology has demonstrated its commitment and alliance to WAWG at the expense of the rest of the citizens who must breathe polluted air in Eastern Washington. Ignoring the issue of the detrimental impacts of wheat field burning is not only illegal, but it is economically hazardous. Taxpayers and insurance companies are spending thousands of dollars every year on medical care as a direct result of wheat field burning.

Wheat farmers in the State of Washington do not want to be regulated, i.e., limited in the amount of wheat stubble they may burn. No industry wants to be regulated. However, the well being of thousands of individuals in Eastern Washington requires that the wheat farmers be regulated in the amount of pollution they may release into the airshed.

SOS and young Tim Krautkraemer respectfully request that Governor Locke remedy this situation by requiring Ecology to begin the rulemaking process for wheat stubble burning. SOS is not a wealthy or powerful lobbyist group; it is simply a group of mothers who, along with their family members, need air free of field burning smoke to work, attend school, and recreate.

We ask the Governor to recommend, pursuant to RCW 34.05.330(3), that Ecology immediately initiate an open and fair rulemaking process that would provide specific and measurable standards, such as or similar to, the standards outlined in Petitioners’ Petition. The standards we seek are reasonable, necessary and many inexpensively implemented by the Department of Ecology. Enough damage has been done and enough innocent people have paid the price with their health.

Petitioners respectfully request the Governor grant a hearing as soon as possible and to act on this appeal within forty-five (45) days, as mandated by RCW 34.05.330(3).

RESPECTFULLY SUBMITTED this 5th day of February, 2001.