2010 Feb. 12: PA: Part 2 of 2: Statewide OWB Law Public Comment: Pennfuture’s Law Staff Chair to PA Environmental Quality Board (lists actions by other states)‏

C. Vermont

According to the Vermont Department of Environmental Conservation, smoke from

OWBs is worse than other wood smoke because of poor combustion and the large amounts of

smoke emitted, up to ten times as much as indoor woodstoves.34 Vermont rules:

> Ban purchases of non-Phase 2 boilers after March 31,2010;

> Require setbacks and, in some cases, minimum stack heights;

> Allow combustion of only wood or other specified fuels;

> Require compliance with all applicable laws and regulations, including local ordinances;

> Prohibit operation of OWBs that create public nuisances;

> Require notice to buyers of the provisions of the Vermont OWB rule; and

> Set testing and certification requirements for manufacturers, and notification

requirements from manufacturers to distributors and sellers of OWBs.35

D. Indiana

The Indiana Department of Environmental Management (IDEM) has proposed a new rule

for outdoor hydronic heaters, noting citizen complaints: "Larger capacity, low stack heights,

design differences, operating conditions, and lower operating temperatures cause more intense

smoking and smoldering conditions nearer to ground level than with other wood burning

devices."36 The IDEM proposal catalogs a many of citizen complaints, including smoke entering

homes, smoke obscuring driver visibility, health impacts, and requests for a seasonal prohibition;

commenters support for stack height and siting regulations.

37

33

Maine Department of Environmental Protection, "Regulation of Outdoor Wood Boilers" (information sheet), rev.

July 4, 2008, at 1, available at

http://wwwjTiaine,gov/dep/aifVwoQdsmoke/dociiments/OWBiiifo (last visited Feb. 11,

34

Vermont Department of Environmental Conservation, Division of Air Pollution Control, "Outdoor Wood-Fired

Boilers: A Controversial Wood Heating Technology" (fact sheet), at 1-2, available at

http://www.vtwoodsmoke.org/about.html (last visited Feb. 10,2010).

35

12-031-001 Code of Vermont Rules § 5-204 (2010).

36

Air Pollution Control Board, Second Notice of Comment Period: Development of New Rules Concerning

Emissions from Outdoor Hydronic Heaters, Jan. 6, 2010, available at http://www.in.gov/legislative/iac/20100106-

IR-326050332SNA.xml.html (last visited Feb. 10,2010). The proposal notes that outdoor hydronic heaters are also

referred to as outdoor wood boilers or outdoor wood burning furnaces.

37

Id., passim.

As proposed, the Indiana rule would:

> Prohibit the sale of non-Phase 2 outdoor hydronic heaters

> Require a minimum stack height of five feet higher than the peak of any roof located

within 150 feet of the unit and not located on the same property on which the heater is

installed

> Ban the operation of non-Phase 2 outdoor hydronic heaters between May 1 and

September 30

> Prohibit the combustion of specified fuels in outdoor hydronic heaters

> Prohibit emissions exceeding a specified opacity

> Require notice to buyers of the Indiana outdoor hydronic heater rule and the address of

the location where the heater will be installed.

38

E. Connecticut

Regarding outdoor wood-burning furnaces installed after July 8, 2005, Connecticut law

requires:

> a 200 foot setback from the nearest residence not serviced by the furnace;

> installation of the chimney of the furnace at a height more than the heights of the roof

peaks of the residences that are located within five hundred feet of the furnace, which

residences are not serviced by the furnace, provided the chimney height is not more than

fifty-five feet;

> combustion of no other materials in the furnace besides wood that has not been

chemically treated.

39

Connecticut law specifically authorizes municipal enforcement of these rules.

40

F. Other Jurisdictions

Other jurisdictions regulating OWBs include New Jersey,

41 Massachusetts,42 New

Hampshire,

43 and 63 municipalities in New York State that have banned or regulated OWBs44.

38

Id- (pages not numbered, proposed rule at end of document),

39

Conn. Gen. Stat. § 22a-174k (2008).

w Id. at § 22a-174k(c).

41

See New Jersey Department of Environmental Protection, Bureau of Air Quality Planning, "Wood Burning in

New Jersey", available at http://www.ni.gov/dep/baqp/woodburning.html, citing N.J.A.C. § 7:27, Subchapter 3 (last

visited Feb. 10,2010).

42

Mass Regs. Code tit. 310, § 7.26(50) (2010); see also Massachusetts Department of Environmental Protection,

"Outdoor Hydronic Heater Regulation" (fact sheet), available at

http://www.mass.gov/dep/service/regulations/ohhregfs.pdf (last visited Feb. 12, 2010)("Outdoor hydronic heaters

can produce heavy smoke and release it close to the ground, where it can linger and expose people in the area to

health risks and nuisance conditions").

43

N.H. Rev. Stat. Ann. § 125-R.

44

New York Attorney General Report at 19-23.

EPA’s Burn Wise website also describes rules, model ordinances, and other programs in

Colorado, Idaho, Michigan, Montana, Utah, and Wisconsin.45

G. Summary

Other states have acted to address public health and nuisance concerns from OWBs.

Pennsylvania must ensure that our regulations reflect, at a minimum, the best measures adopted

in other states, and be prepared to enforce these rules.

IV. The proposed Pennsylvania OWE rule needs to be strengthened.

A. The OWE must address older units.

U.S. EPA has announced a "Phase 2" program for hydronic heaters, or outdoor wood

boilers.

46 The program certifies as Phase 2-compliant those units that achieve an average air

emission level of 0.32 pounds per million Btu heat output, where no individual test run that is

used in the calculation of the average exceeds 18.0 grams of fine particles per hour.

47 This is a

significant improvement over the now-terminated Phase I program of 0.60 pounds per million

Btu heat output, and a 90% improvement over emissions from units that pre-date the U.S. EPA

program.

48 We support the requirement in the proposed rule that, after the effective date of the

rule, only Phase 2-compliant units may be sold, offered for sale, distributed, installed,

purchased, leased or received in Pennsylvania.

49

However, this requirement will do nothing to deal with the dirtier, existing fleet of

OWBs. As noted above, Washington State has taken a comprehensive approach to this issue,

with its ban on OWBs failing to meet an advanced emission limit. To address older units, we

recommend that Pennsylvania initiate a buy-back program for pre-Phase I OWBs.

50 This

program would use monies from the Clean Air Fund

51 to repurchase the dirtiest OWBs at a price

reflecting depreciation. This program should include outreach to counties and municipalities to

help identify the OWBs that have been the source of complaints.

B. The setback requirements in the proposed rule may not adequately protect

neighbors against wood smoke dangers.

45

U.S. EPA, "Burn Wise: Agencies—Ordinances and Regulations", available at

http://www.epa.gov/bumwise/ordinances.html (last visited Feb. 10, 2010),

46

See "EPA Hydronic Heater Program: Phase 2 Partnership Agreement", Oct. 15, 2008, available at

http://www.epa.gov/burnwise/pdfs/owhhphase2agreement.pdf (last visited Feb. 7, 2010).

48

U.S. EPA, "EPA’s Phase 2 Voluntary Partnership Program Outdoor Wood-Fired Heaters" (fact sheet), at 1,

available at http://www.epa.gov/bumwise/pdts/HH-flyer 10-21 -08.pdf (last visited Feb. 5, 2010).

49

25 Pa. Code § 123.14(b)(l, 2)(as proposed, 39 Pa. Bull, at 6068).

50

Maine has instituted such a program. See Code of Maine Rules Agency 06, Chapter 160. A bill (S. 236) recently

introduced in the Vermont General Assembly would start such a program there. Candace Page, "Vermont Considers

Boiler Buyback Program", Burlington Free Press, Feb. 1,2010, at A5, available at

http://www.burlingtonfreepress.com/apps/pbcs.dll/article?AID=2010100131024 (site visited Feb. 10, 2010).

51

35 P.S. 4009.2 (2010) and 25 Pa. Code § 143.1 (2010).

10

The proposed rule states: "A person may not install a Phase 2 outdoor wood-fired boiler

in this Commonwealth unless the boiler is installed a minimum of 150 feet from the nearest

property line."

52 The Board does not explain its basis for choosing 150 feet as an appropriate

minimum setback distance. To the extent that the Board is relying on stack heights to protect

neighbors, stack heights are not a complete remedy to dense pollution from obsolete boilers (see

next section) and should be accompanied by aggressive setbacks to protect neighbors. At a

minimum, the Board should adopt the 200 foot setback from the nearest residence not served by

the OWB in effect in Connecticut

53 in addition to the 150 feet from the nearest property line

proposed for Pennsylvania.

C. The Department should not rely solely on stack height requirements to protect

neighbors.

The proposed rule would require permanently attached stacks that extend a minimum of

10 feet off the ground. For Phase 2 boilers, the stack must extend at least two feet above the

highest peak of the highest residence located within 150 feet of the OWB. For existing boilers,

this requirement applies as to residences within 500 feet.

54

However, these stack heights may not be adequate to protect neighbors. Emissions may

not have adequate velocity to rise and disperse:

Stack heights this short typically fail to disperse smoke adequately,

resulting in excessive ground level smoke. Because OWBs rarely provide

stovepipe fans to increase the upward velocity of the smoke, there is only limited

vertical dispersion of OWB emissions. Certain weather conditions aggravate this

situation, such as cold weather inversions when the smoke does not rise but stays

close to the ground.

55

As another study states, "OWB pollution is exacerbated because the low stack design does not

disperse the smoke as well as conventional chimneys." If emissions do not disperse, weather and

topography can cause concentrated smoke to reach neighboring yards and homes.

56

Although stack heights alone are not adequate to protect neighbors in all settings, we

support minimum stack height requirements as part of an overall OWB pollution control

strategy.

D. The Department must not assume that fuel restrictions will resolve the problem of

pollution from wood-fired boilers.

52

25 Pa. Code § 123.14(c)(as proposed, 39 Pa. Bull, at 6072).

53

Conn. Gen. Stat. § 22a-174k (2008).

54

25 Pa. Code § 123.14(d, e)(as proposed, 39 Pa. Bull, at 6072).

55

NESCAUM Assessment at 2-1.

56

See also New York Attorney General Report at 5 ("The short OWB chimney and reduced draft often fail to

disperse the smoke, resulting in more concentrated pollution at lower heights reaching residents and neighbors.")

and U.S. EPA, "EPA Hydronic Heater Program, Phase 2 Partnership Agreement", Oct. 15, 2008, available at

http://epa.gov/burnwise/pdfs/owhhphase2agreement.pdf (last visited Feb. 7, 2010)(stack height and other factors

"may not always be adequate to prevent nuisance conditions due to terrain or other factors").

11

The Department proposes to prohibit all fuels in OWBs besides clean wood, wood pellets

made from clean wood, some oil, gas or propane, and other fuels approved by the Department.

The proposed rule bans the combustion of treated wood, garbage, plastic, and a host of other

high-polluting materials sometimes burned in OWBs.

57

We support this proposal. The proposal accords with recommendations by the U.S.

EPA.

58 The Health, Patio and Barbeque Association also agrees, recommending burning only

those fuel recommended by the manufacturer, and never trash, plastic, treated wood, or other

listed items.

59

However, limiting combustion to the listed materials does not, by itself, prevent air

pollution that impacts neighbors. Wood smoke results in emissions of fine particles capable of

causing nuisance to neighbors and fine particle level exceeding national health standards. For

residential heating, wood combustion has the highest effective fine particle emissions per unit of

heat.

60 Moreover, U.S. EPA estimates that residential wood combustion results in 62 percent of

all emissions of seven polycyclic aromatic hydrocarbons, which are probable human

carcinogens.

61 Therefore, the Board needs a combination of effective measures to protect the

public from all harmful emissions from OWBs, including those emissions from wood smoke.

E. We support the notice and recordkeeping requirements of the proposed rule.

The proposed rule would require notice to an OWB buyer regarding fuel restrictions, the

applicability of other Commonwealth regulations and statutes, the possible application of local

regulations (including stack height and setback requirements), and the possibility that the

operation of an OWB may still cause a nuisance or a public health hazard despite stack height

and setback requirements.

62 The notice requirement will also collect information about the buyer

and location where the OWB will be installed.

63 The recordkeeping provision requires the

distributor, seller, or lessor to keep these records on site and provide them to the Department

upon request.

64

We support these aspects of the proposed rule. The notice to OWB buyers will help

buyers operate units in a way that reduces impacts on their own families and on neighbors. The

proposed information collection will allow the Department to track locations and concentrations

57

25 Pa. Code § 123.14(f, g)(as proposed, 39 Pa. Bull, at 6072).

58

U.S. EPA, Strategies for Reducing Residential Wood Smoke, Oct. 29, 2009, at 8, available at

http://wwvvxpa.gov/ttn/oarpg/tl/memoranda/strateRics-doc-8-l 1 -09.pdf (last visited Feb. 7, 2010).

59

Hearth, Patio and Barbecue Association, "Outdoor Wood Furnace Best Burn Practices" (fact sheet), available at

http://static.hpba.org/fileadmin/PDFs/Ticr IV Outdoor Wood Furnace Best Bum Practices – MH3.pdf(last

visited Feb. 7,2010).

60

Houck, James E. et al., "Air Emissions from Residential Heating: The Wood Heating Option Put into

Environmental Perspective", Conference Proceedings: Emission Inventory: Living in a Global Environment, pp.

373-384, available at http://www.woodheat.org/environment/hpawma.pdf (last visited Feb. 12, 2010).

61

U.S. EPA, Strategies for Reducing Residential Wood Smoke, Oct. 29, 2009, at 4, available at

http://www.epa.gOv/ttn/oarpg/t 1 /memoranda/strategies-doc-8-11 -09.pdf (last visited Feb. 7, 2010).

62

25 Pa. Code § 123.14(i)(l)(as proposed, 39 Pa. Bull, at 6073).

63

25 Pa. Code § 123.14(i)(2)(as proposed, 39 Pa. Bull, at 6073).

64

25 Pa. Code § 123.14(j)(as proposed, 39 Pa. Bull, at 6073).

12

of OWBs and promote the effective implementation of the rule and facilitate the monitoring of

ambient air impacts from OWBs. This information must be made available to the public through

file reviews at the Department.

F. The Department must provide extra protection in spring and summer.

The Board has requested comments on whether a final rule should include a seasonal

prohibition on operating OWBs between the dates of May 1 and September 30.

65 For neighbors

who want to keep windows and doors open and spend time outdoors during the warmer months,

this can be an especially hard time to live next to an operating OWB. It is also a time when

heating a home via an OWB is less necessary. Therefore, we support a seasonal prohibition on

operating OWBs between the dates of May 1 and September 30.

G. The Department must effectively enforce the OWB rule.

The Department must provide effective outreach and enforcement to prevent public

health and nuisances from OWBs:

> The Department should provide information, including on its website, for consumers

regarding the economic and health issues involved with OWBs;

66

> The Department should train at least one specialist in each regional office in OWB issues,

in OWB inspections, and in methods of evaluating OWB emissions;

> The Department should log all complaints regarding OWBs, and follow-up by recording

Department actions taken in response; and

> The Department should bring all enforcement tools to bear on OWB violations, including

but not limited to enforcement orders, penalty actions, and actions to respond to

nuisances.

V. Conclusion

We support Board efforts to regulate OWB setbacks, stack heights, and fuel, and to

establish notice and recordkeeping requirements. Some of these proposals must be strengthened

as described above. However, to provide direct, immediate relief, the Board must adopt the

seasonal prohibition. Also, the Board should authorize the use of the Clean Air Fund to buy

back the highest-polluting, most dangerous OWBs. In accordance with the Pennsylvania

Constitution and the Air Pollution Control Act, we urge the Board to adopt strong regulations

that protect against nuisance and public health impacts.

Charles McPhedran

PennFuture

1518 Walnut Street, Suite 1518

Philadelphia, PA 19102

mcphedran@pennfuture.org

65

The Monroe County Model Ordinance includes an optional seasonal prohibition (§ 12).

66

Some of this information has been posted by the Department at

http://www.dep.state.pa.us/dep/deputate/airwaste/aq/openburn/openburn.htm (last visited Feb. 12, 2010).

13

Joseph Otis Minott, Executive Director

Clean Air Council

135 S. 19th Street

Philadelphia, PA 19103

joeminott@cleanair.org

Nathan Willcox

Energy and Clean Air Advocate

PennEnvironment

1420 Walnut Street, Suite 650

Philadelphia, PA 19102

nwillcox@PennEnvironment.org

Nancy F. Parks, Chair, Clean Air Committee

Sierra Club, Pennsylvania Chapter

201 West Aaron Square

P.O. Box 120

Aaronsburg, PA 16820-0120

nfparks2(%veri zon.net

Kevin M. Stewart

Director of Environmental Health

American Lung Association in Pennsylvania

3001 Old Gettysburg Road

Camp Hill, PA 17011

kstewart@lunginfo.org

Summary of Comments by Citizens for Pennsylvania’s Future (PennFuture),

Clean Air Council, PennEnvironment, Sierra Club-Pennsylvania Chapter, and

American Lung Association in Pennsylvania

on Outdoor Wood-Fired Boiler Proposed Rule

Our groups support regulation of outdoor wood-fired boilers (OWBs) by the Department

of Environmental Protection (Department). Pollution from OWBs poses significant risks due to

high emissions of fine particles and other pollutants. A single OWE can cause fine particle

levels exceeding national health standards at a distance of 50 to 150 feet. Fine particles are

associated with heart disease, lung disease, and premature death. Part of all of twenty-two

Pennsylvania counties already do not meet national health standards for fine particles.

OWBs also cause nuisance (quality of life) effects for neighbors. Across the state,

neighbors find they cannot remain in their yards because of smoke and fumes, and even

sometimes have watery eyes, sore throats, and burning lungs inside their homes. These

neighbors of OWBs need immediate relief.

County and municipal governments are on the front lines of the OWE problem, and we

hope they will play a strong role in responding to nuisance air pollution from OWBs. However,

few have ordinances targeted at OWBs, enforcement is uneven, and the Department has special

expertise in air pollution matters. We urge the Environmental Quality Board (Board) to adopt a

statewide rule for enforcement by the Department. This rule should also preserve existing legal

remedies for neighbors.

There is ample precedent for Pennsylvania to take action. Other states have responded to

OWB pollution with regulations containing similar elements to those proposed here, including

setbacks, stack heights, fuel restrictions, prohibitions on the sale of pre-Phase 2 boilers, and

notices to OWB purchasers.

An effective rule in Pennsylvania must include a combination of these items, plus several

additional elements. Neighbors want to be outside in their yards and have windows open in their

homes during the summer, when heating needs from OWBs are also reduced. Therefore, we

support the seasonal prohibition on OWB operation between May 1 and September 30. Also, we

need an effective way to reduce emissions from older, dirtier OWBs already operating in

Pennsylvania, A buyback program could help remove some of these units. Finally, the

Department must respond effectively to citizen complaints regarding OWBs, including by

enforcement action when appropriate.

We urge the Board to take aggressive action that will protect the public health and

prevent nuisances.

9S09,

From: Charles McPhedran [mcphedran@pennfuture.org]

Sent: Friday, February 12, 2010 4:32 PM

To: Schalles, Scott R.; IRRC

Subject: EQB proposed regulation #7-444 (IRRC #2802) "Outdoor Wood-Fired Boilers"

Attachments: OWB Comments As Submitted.pdf; OWB Comments One Page Summary.pdf

Comments by several groups on the Outdoor Wood-Fired Boiler proposal are attached for IRRC’s consideration. Also

attached is the one-page summary submitted to the Environmental Quality Board.

Regards,

Charles McPhedran | Law Staff Chair | PennFuture

(215) 545-9693 | mcphedran(5)pennfuture.orq | http://www.pennfuture.orq

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