The information below is an explanation of Michigan's Public Health agencies and the law that guides them. There are also suggestions on how to get action from your local health departments concerning OWBs. Although Michigan specific I'm sure other states are similar.
In Michigan there are two agencies responsible for Public Health: the Michigan Department of Community Health (MDCH) and Local Health Departments. The MDCH has a director that reports to the governor and local agencies report to city commissioners. The MDCH can exercise authority over the local departments but for the most part they try diplomacy to cajole the local departments to enforce the law. In essence, the MDCH can be looked at as the agency that sets policy and local departments as the enforcers.
It is important to know that when necessary the Director can enforce all the same laws as local departments. However, there is a reluctance to do so. The rational being if the MDCH steps in when a local health department fails to execute then other local health departments throughout the state may also avoid their responsibilities. Budgets are a factor also.
Another distinction between the two departments is the MDCH has toxicologists’ on staff where local departments do not. With respect to OWBs this is significant. I’ll talk more about their role below, after I explain the Public Health Code.
Michigan’s Public Health is governed by Public Act 368 of 1978. Within the code you’ll find a number of sections specifically tailored to local health departments. Most relevant are: 333.2433 and 333.2455.
Click on the link below (or copy and paste to address line of your browser) and enter 368 for Public Act Code and 1978 for the year.
http://www.legislature.mi.gov/%28S%28yf ... clPASearch
Here are abstracts of the two mentioned sections.
(1) A local health department shall continually and diligently endeavor to prevent disease, prolong life, and promote the public health through organized programs, including prevention and control of environmental health hazards; prevention and control of diseases; prevention and control of health problems of particularly vulnerable population groups; development of health care facilities and health services delivery systems; and regulation of health care facilities and health services delivery systems to the extent provided by law.
(2) A local health department shall:
(a) Implement and enforce laws for which responsibility is vested in the local health department.
(iii) The causes, prevention, and control of environmental health hazards, nuisances, and sources of illness.
(1) A local health department or the department may issue an order to avoid, correct, or remove, at the owner's expense, a building or condition which violates health laws or which the local health officer or director reasonably believes to be a nuisance, unsanitary condition, or cause of illness.
(2) If the owner or occupant does not comply with the order, the local health department or department may cause the violation, nuisance, unsanitary condition, or cause of illness to be removed and may seek a warrant for this purpose. The owner of the premises shall pay the expenses incurred.
(3) If the owner of the premises refuses on demand to pay expenses incurred, the sums paid shall be assessed against the property and shall be collected and treated in the same manner as taxes assessed under the general laws of this state. An occupant or other person who caused or permitted the violation, nuisance, unsanitary condition, or cause of illness to exist is liable to the owner of the premises for the amount paid by the owner or assessed against the property which amount shall be recoverable in an action.
(4) A court, upon a finding that a violation or nuisance may be injurious to the public health, may order the removal, abatement, or destruction of the violation or nuisance at the expense of the defendant, under the direction of the local health department where the violation or nuisance is found. The form of the warrant to the sheriff or other law enforcement officer may be varied accordingly.
(5) This section does not affect powers otherwise granted to local governments.
What these two sections of the law imply is if a public health hazard exists then the Public Health Officer (PHO) of the local health department has a responsibility to remove the hazard.
The dangers of OWB emissions are relatively new to local health departments. As such, the first words out of their mouths when you file a complaint is, “this is a township issue” or “the Michigan Department of Environmental Quality (MDEQ) has responsibility.” Although there is some degree of truth to these responses, the fact of the matter is: if the township or MDEQ have not enacted installation ordinances/regulations and as a result air contaminants affect the health of people in the vicinity of the OWB, responsibility defaults to the local health department.
Now having said all of this, the issue becomes getting the health department to physically respond to the complaint. PHO know if they respond they’ll have to act so they’ll do everything they can to ignore the complaint. Here are some suggestions to assist in your efforts:
1. Take pictures and make sure the date is on the picture. Many digital cameras now have the capability to do this. After you take the pictures run a weather report for the same day that shows wind direction and speed. Also, if possible get specifics on the OWB layout. You’ll need the distance and direction (West, South, etc.) from your home, and approximate chimney height. You can get wind data from this site:
http://www.wunderground.com/history/air ... atename=NA
2. If the smoke causes you and your family headaches, repository problems, or other symptoms go to your family doctor and show him/her the pictures. Let him know how the OWB is affecting your health. Ask him to write a letter in support of your efforts to remove the hazard.
3. Call the local health department and ask to talk to the PHO. First, ask for a copy of their policy on responding to public health complaints. Many of these policies state they must respond within a certain amount of time. Once you get the policy file a formal complaint attaching the pictures, weather report, and medical info. Tell the PHO about the cease and desist order issued in Jackson County. (see newspaper report under “news”). Also, this would be a good time to present a copy of the law. Don't be surprised if the PHO or the agency's attorney doesn't know the specifics of the law as it relates to OWBs.
4. Each time the OWB emits air contaminants take additional pictures, weather reports etc. and file additional complaints. Call the MDCH and ask to talk to their attorney and toxicologist. Tell them about your health issue and let them know the local health officer is not assisting. Ask the toxicologist if he would do an air study. If the toxicologist does an air study and finds significant amounts of PM 2.5 then he’ll probably proclaim the OWB to be a health hazard.
5. If the health of your family or yourself is being adversely affected you have every right to insist that the local health department act. If they don’t and someone suffers further harm after the complaint has been filed, I would talk to an attorney about filing gross negligence charges against the public health officer.
6. Call your local congressman and senator and file complaints. Tell them about the law and your medical situation.
7. Get a notebook and chronologically record all of your interactions, including date, times, and people you talked to. Save copies of all complaints and supporting documentation to include e-mail.
8. Remember there is sufficient empirical knowledge out now acknowledging the fact that OWBs are a health hazard if not installed in locations away from people. Don’t give up these things can cause you and your family significant health issues, especially first generation units. Public Health is much different than other law. If something has been deemed a public health hazard, and officilas don't act, they can be held responsible.