County weighs field burn suit

By Diane Dietz
The Register-Guard
Published: Wednesday, June 20, 2007

Field burning is so hated in Lane County that the Board of Commissioners is talking about suing the 150 grass seed farmers who still use the practice to clear straw from their fields.

On Tuesday, the board met behind closed doors to consider litigation with its own team of lawyers and an attorney from the nonprofit Western Environmental Law Center.

Eugene attorney Art Johnson, who represented people injured in a massive 1988 freeway wreck caused by field smoke, has volunteered to help if the commissioners go ahead.

But first, the commissioners on Tuesday voted unanimously to ask the state's Environmental Quality Commission to order a two-year burning moratorium on the basis that field burning is a danger to Lane County residents' health.

If the environmental panel, which meets Friday in Salem, doesn't budge, the county may seek remedy in the courts, Lane County Commissioner Bill Dwyer said after the meeting.

"We're prepared to go that road, too. That's the message we have to send," he said.

Grass seed industry representative David Nelson on Tuesday afternoon faulted the commissioners for being anti-rural.

"It's an unfortunate exhibition of the rural-urban divide that divides Eugene and Lane County - some of the Lane County commissioners - from rural Oregon," he said in a phone interview after the meeting.

But commissioners said they've received dozens of e-mails in support of their efforts to stop field burning, and not all the calls were from city folk.

Commissioner Faye Stewart noted he represents rural eastern Lane County residents and "they are the folks who do get the smoke," he said.

Residents of Marcola, Lorane and Cottage Grove urged him to support a ban, he said, and they included some farmers.

Most of Oregon's 1,400 grass seed farmers have stopped burning their fields after harvest, and have found other ways to get rid of waste straw. But roughly 150 farmers - the vast majority of them in Linn, Benton and Marion counties - still use fire to clear their fields of stubble and pests. They typically burn in July, and the prevailing winds often carry the smoke south into the Eugene-Springfield area and surrounding communities. Only a handful of Lane County grass seed farmers still burn their fields.

Commissioner Bill Fleenor said the county has not "demonized" grass seed growers. He said that people appreciate the farmers' contribution to the economic success of the state - but more people live in the Willamette Valley now and the smoke's a problem for them.

"Thank you," he said, "but things have changed and (the grass seed industry has) got to move on."

The commissioner's petition to the state reads: "Public patience with field burning has been exhausted."

Field burning has been contentious in Oregon for at least 40 years. Valley farmers used to burn more than 300,000 acres each summer.

The 1991 Legislature adopted a phase down that pushed the acreage burned to about 50,000 per year by 1998, and its remained roughly constant each year since then.

No grass seed farmers attended Tuesday's hearing. In previous venues, they've said the cutback in the 1990s was a big sacrifice.

Dr. Sarah Hendrickson, Lane County public health officer, told commissioners that field burning pollution is dangerous to health.

"We ought not to be looking at it with a `Oh my goodness we're in such better shape' but rather `What is the objective evidence of harm from today's pollution,' '' she said.

The county board is asking the state to make a formal finding that the practice of field burning is a danger to public health. That would give the state the authority to impose a temporary ban on the practice, said Charlie Tebbutt, lawyer with the Eugene-based Western Environmental Law Center.

The state environmental panel, a five-member body that oversees Oregon's environmental regulation, has the authority

and responsibility to protect citizens from dangerous pollutants, he said.

"They're `it' under the statute. The buck stops there. The governor appoints them but there's no mechanism for the governor to overrule them," he said.

The grass seed industry says other chronic air pollutants - including vehicle exhaust and smoke from wood stoves - are far more harmful than temporary clouds of field-burning smoke.

But the county's petition to the state asserts that medical evidence has accumulated to show that field burning smoke can be a danger to the people who breathe it.

The fine particulate in smoke - less than 2.5 microns in diameter - get past the alveoli in human lungs and damage the tender sacs where air and blood meet, medical studies show. Medical evidence shows that humans have few defenses against particles that small, the county asserts. That's particularly true of people who "already suffer from asthma and chronic obstructive pulmonary diseases, those who suffer cardiovascular diseases or diabetes, children under 18 - whose lungs are still developing, and elderly residents," according to the county petition.

The Oregon Medical Association, the Lane County Medical Society, the American Lung Association of Oregon, the Lane Regional Air Protection Agency, and Oregon Lung Specialists all supported an unsuccessful effort in the Legislature earlier this year to ban field burning.

Field burning smoke is clearly a danger, said Dr. Larry Dunlap, who worked in the Sacred Heart Emergency Department in Eugene for 26 years before retiring.

"It's not healthy for us. It's gradual and cumulative, like tobacco smoke," he said.

Other testimony commissioners heard: A Bach Festival oboist who couldn't play as easily during burning season; a middle school teacher who says childhood asthma is on the increase and field burning at least exacerbates the problem; a track booster who wondered whether athletes would want to run in Eugene given the field burning smoke; a doctor who said lung patients are in an "imposed lock down" through field burning season.

Retired nurse Lynne Bernhardt spoke of her 4-year-old granddaughter who, like her, has severe asthma. She worried that the child's life will be shortened by field burning smoke.

Bernhardt described "days of discomfort, of struggling to breathe" and asked commissioners "with all my heart to please do something for those of use who do wheeze."