Outdoor wood boilers used to heat homes and commercial establishments.
Purpose:
Particulate emission standards and engineering controls for new outdoor wood boilers.
Substance of final rule:
The Department of Environmental Conservation (Department) proposes to adopt 6 NYCRR Part 247, Outdoor Wood Boilers, and revise 6 NYCRR Part 200, General Provisions, to conform to the new rule. Outdoor wood boilers (OWBs) are defined in Part 247 as fuel burning devices (1) designed to burn wood or other fuels; (2) that the manufacturer specifies for outdoor installation or installation in structures not normally occupied by humans; and (3) that are used to heat building space and/or water via the distribution, typically through pipes, of a gas or liquid (e.g., water or water/antifreeze mixture) heated in the device.
Definitions and General Provisions
Definitions of terms used in Part 247 are presented in Section 247.2. An OWB commencing operation on or after April 15, 2011 is defined as a 'new' OWB. The term 'commence operation' is defined as the initial start-up of the combustion chamber of an OWB after all piping and electrical connections between the OWB and the structure(s) it serves have been completed. New OWBs are further classified based upon the useful heat generated in the unit. Residential-size new OWBs are units with a thermal output rating of 250,000 British thermal units per hour (Btu/h) or less. Commercial-size new OWBs are units with a thermal output rating greater than 250,000 Btu/h.
A list of fuels which may be burned in OWBs is contained in Section 247.4. Seasoned clean wood may be burned in a OWB. 'Clean wood' is defined in section 247.2 as wood that has not been painted, stained, or treated with a coating, glue or preservative. In addition, natural gas and heating oil that meets the sulfur content limits set forth in Subpart 225-1, and non-glossy, non-colored papers, including newspaper, may be used as starter fuels. The Department may approve additional fuels for specific models of new OWBs provided that the models have been tested via United States Environmental Protection Agency (EPA) Test Method 28-OWHH with the fuels in question. A list of prohibited fuels is contained in subdivision 247.3(b). The list of prohibited fuels includes, but is not limited to, garbage, yard waste, household chemicals and animal carcasses.
Subdivision 247.3(c) prohibits the operation of any OWB in such a manner as to cause or allow emissions from such OWB that are injurious to human, plant or animal life or which unreasonably interfere with the comfortable enjoyment of life or property. Examples of situations that would trigger subdivision 247.3(c) include, but are not limited to:
a. activating smoke detectors in neighboring structures;
b. impairing visibility on a public highway; or
c. causing a visible plume migrating from an OWB and contacting a building on an adjacent property.
Subdivision 247.3(d) prohibits the operation of any OWB in such a manner as to create a smoke plume with an opacity of 20 percent or greater (six minute mean) as determined via EPA Reference Method 9 (or equivalent).
Requirements applicable to New OWBs
The particulate emission limits, stack height and setback requirements for residential-size new OWBs are set forth in Section 247.5. Residential-size new OWBs will be subject to a weighted average particulate emission limit of 0.32 pounds per million British thermal units (mmBtu) heat output. In addition, the particulate emission rate for any test run conducted pursuant to Test Method 28-OWHH may not exceed 15.0 g/h when the burn rate is 1.5 kilograms per hour (kg/h) or less and 18.0 g/h when the burn rate is greater than 1.5 kg/h. Further, residential-size new OWBs must be located 100 feet or more from the nearest property boundary line (or 100 feet or more from the nearest residence not served by the OWB if the OWB is sited on contiguous agricultural lands of 5 or more acres) and must be equipped with a permanent stack extending a minimum of 18 feet above ground level. Notwithstanding the foregoing, the Department may require that the permanent stack extend up to two feet above the peak of any roof structure within 150 feet of the OWB when necessary to adequately disperse smoke emitted from an outdoor wood boiler.
Commercial-size new OWBs (Section 247.6) will be subject to a weighted average particulate emission limit of 0.32 pounds per million mmBtu heat output. In addition, the particulate emission rate for any test run conducted pursuant to Test Method 28-OWHH may not exceed 20.0 g/h. A commercial-size new OWB must be equipped with a permanent stack extending a minimum of 18 feet above ground level. Notwithstanding the foregoing, the Department may require that the permanent stack extend up to two feet above the peak of any roof structure within 150 feet of the OWB when necessary to adequately disperse smoke emitted from an outdoor wood boiler. Finally, a commercial-size new OWB must be located 200 feet or more from the nearest property boundary line, 300 feet or more from the nearest residential property boundary line, and 1000 feet or more from a school. Notwithstanding the above, a commercial-size new outdoor wood boiler installed on contiguous agricultural lands larger than five acres must be sited 300 feet or more from the nearest residence not served by the outdoor wood boiler and 1000 feet or more from a school.
Requirements that Apply to Manufacturers
Sections 247.7 and 247.8 contain provisions that apply to manufacturers of new OWBs. A permanent label (Section 247.7) must be affixed to all new OWBs. The label must be made of a material that is sufficiently durable to last the lifetime of the new OWB and must contain the following information:
a. name and address of the manufacturer;
b. date the new OWB was manufactured;
c. model name and number;
d. serial number;
e. thermal output rating in Btu/h; and
f. certified particulate emission rate (per Section 247-1.8).
Beginning April 15, 2011, all new OWBs must be of a model certified by the Department. A model is defined in Section 247.2 as all new OWBs manufactured by a single manufacturer that are similar in all material and design respects. The certification process is set forth in Section 247.8.
Two copies of the certification application must be submitted to the Department. The following information must be contained in a manufacturer's application for certification of a model as set forth in subdivision 247.8(c):
a. name and address of the manufacturer, model name and number, serial number, date of manufacture and the thermal output rating, in Btu/h, of the new outdoor wood boiler tested;
b. four individual color photographs of the tested unit showing the front, back and both sides of the unit;
c. engineering drawings and specifications for each of the following components:
1. firebox including a secondary combustion chamber;
2. air induction systems;
3. baffles;
4. refractory and insulation materials;
5. catalysts;
6. catalyst bypass mechanisms;
7. flue gas exit;
8. door and catalyst bypass gaskets;
9. outer shielding and coverings;
10. fuel feed system; and
11. blower motors and fan blade size.
d. final test report prepared by the testing laboratory; and
e. a copy of the operation and maintenance instructions.
In order for a model to be certified, the particulate emission rate must be determined by a test laboratory via Test Method 28-OWHH or other test method approved in writing by the Department. A test laboratory must be accredited by the EPA for testing wood-burning residential space heaters in accordance with 40 CFR 60 Subpart AAA, Section 60.535 or another organization approved by the Department. A test laboratory must have no conflict of interest or financial gain in the outcome of the testing of new OWBs.
The Department shall issue a certificate of compliance if the application is deemed complete and the model is determined to be compliant with the particulate emission limits set forth in Section 247.5 or Section 247.6 (as appropriate). The certificate of compliance will be valid for five years and may be renewed by the manufacturer. If a manufacturer makes a change in the design of a model resulting in a change in the thermal output rating of the model, that change constitutes the creation of a new model.
Requirements that Apply to Distributors
Section 247.9 applies to distributors. The term 'distributor' is defined in Section 247.2 as any person who sells or leases a new OWB to an end user. Distributors are required to provide a prospective buyer or lessee of a new OWB with a 'Notice to Buyers' (Notice). The following must be included in the Notice:
a. an acknowledgement that the buyer or lessee was provided a copy of Part 247;
b. a list of fuels that may be burned in the OWB as set forth in paragraph 247.8(d)(1) of Part 247; and
c. a statement that even if the requirements set forth in Part 247 are met, there may be conditions or locations in which the use of a new outdoor wood boiler unreasonably interferes with another person's use or enjoyment of property or even damage human health, and if such a situation occurs the owner or lessee of the new outdoor wood boiler causing the situation may be subject to sanctions that can include a requirement to remove the device at their own expense as well as any other penalty allowed by law.
The Notice must be signed and dated by both the buyer (or lessee) and the distributor when the sale (or lease) of the new OWB is completed. In addition, the following information must be added to the Notice:
a. name and address of the owner (or lessee) of the new OWB;
b. street address where the OWB was installed (if different from item (a) above);
c. name of the manufacturer, model and date of manufacture of the new OWB;
d. height of the permanent stack for the new OWB; and
e. distance to the nearest property boundary line or residence not served by the OWB, as appropriate.
The distributor must submit the completed Notice to the Department's regional office for the area where the OWB is installed within seven (7) days of making delivery of the new OWB into the possession of the buyer or lessee.
Severability Clause
Section 247.10 contains a severability clause stating that in the event any provision of Part 247 is held to be invalid, the remainder of Part 247 shall continue in full force and effect.
Part 200 - General Provisions
Section 200.9 will be amended to incorporate by reference EPA Test Method 28-OWHH and Reference Method 9. Further, test laboratories that conduct the Test Method 28-OWHH testing must be accredited by EPA pursuant to Section 60.535. Therefore, the Department is incorporating Section 60.535 by reference in this regulation.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 247.1, 247.2(b)(7), (8), (9), (10), (11), (12), (13), (14), (15), (16), 247.5(b), (c), 247.6(c), (d), 247.9(b)(1), 247.10(a), (b)(1), (2), (3), (4), (c)(1), (2), (3) and 247.11.
Text of rule and any required statements and analyses may be obtained from:
John Barnes, P.E., NYSDEC, Division of Air Resources, 625 Broadway, Albany, NY 12233-3251, (518) 402-8396, email: airregs@gw.dec.state.ny.us
Additional matter required by statute:
Pursuant to Article 8 of the State Environmental Quality Review Act, a Short Environmental Assessment Form, a Negative Declaration and a Coastal Assessment Form have been prepared and are on file. This rule was approved by the Environmental Board.
Summary of Revised Regulatory Impact Statement
The purpose of Part 247 is to establish regulatory requirements for outdoor wood boilers (OWBs), most of which are not subject to any current federal or state regulations.
Outdoor wood-fired boilers are fuel burning devices (1) designed to burn wood or other fuels; (2) that the manufacturer specifies for outdoor installation or installation in structures not normally occupied by humans; and (3) that are used to heat building space and/or water via the distribution, typically through pipes, of a gas or liquid (e.g., water or water/antifreeze mixture) heated in the device. A typical unit looks like a small metal storage shed with a stack. Outdoor wood boilers can also be used to heat swimming pools.
The Department is proposing operational requirements, such as specifying which fuels may or may not be used, that will apply to all OWBs. Particulate emission standards, and stack height and setback requirements are proposed for new OWBs. The process by which manufacturers may apply to certify new OWB models for sale in New York is set forth in the proposed rule. The requirements that will apply to distributors are also set forth in the proposed rule. The term 'distributor' is defined in Part 247 as one who sells or leases outdoor wood boilers to end users.
Needs and Benefits
Outdoor wood boilers have become more popular in recent years as a means to reduce home energy costs. In New York State, OWB sales increased from 606 units in 1999 to an estimated 2,640 units in 20071. The increased use of OWBs has resulted in numerous complaints filed by neighbors of OWB owners. Complaints have been filed with the Department, the New York State Department of Health, the Office of the Attorney General and local municipalities, many of which have adopted ordinances to regulate OWBs.
During the winter months, the Department's regional offices receive numerous complaints regarding smoke from OWBs. Some complaints are filed during the summer months as well since some OWBs are used to heat swimming pools and provide hot water for the residences they serve. At this time, the Department uses the provisions in Part 211, "General Prohibitions", to initiate an enforcement action against the owner/operator of an OWB subject to a complaint(s). In order to prosecute an enforcement action under Part 211, Department staff must observe an opacity violation via EPA Federal Reference Method 9 or document conditions that clearly "interfere with the comfortable enjoyment of life or property." Department staff must be present when the OWB is operating to meet the heat demand of the building it services and under the proper daylight conditions in order to conduct a Method 9 analysis. Due to the cyclical nature of the operation of an OWB, collecting evidence for an enforcement action is a labor-intensive activity. A regulation detailing the compliance requirements that owners/operators must meet is necessary in order for Department staff to effectually resolve nuisance complaints.
In general, the Department continues to support the use of renewable resources such as wood, and the proposed rule will allow the continued use of OWBs while minimizing the environmental impacts. The primary benefit of the proposed rule, if promulgated, would be a significant improvement in the quality of life for those impacted by a plume from a neighbor's OWB. This will be accomplished by reducing the potential exposures to wood smoke, thus mitigating both the public nuisance and adverse health effects that have led to the complaints filed with government agencies. In addition, the promulgation of Part 247 would give the Department a tool to effectually resolve complaints. These benefits will be achieved by implementing the provisions described in the following five sections.
1. General Provisions
Only seasoned clean wood2 and wood pellets made from clean wood may be burned in an OWB. Natural gas, heating oil that complies with the fuel sulfur limits set forth in Subpart 225-1 and non-glossy, non-colored paper, including newspaper, may be used as starter fuels if so recommended by the manufacturer. A list of prohibited fuels is incorporated into Section 247.3. The list of prohibited fuels includes garbage, household chemicals, plastics, plywood and coal3 and is incorporated into the rule to provide guidance to OWB operators.
A nuisance provision is included in Part 247 which prohibits the operation of an OWB in a manner that may cause injury or damage to human life or which unreasonably interferes with another person's enjoyment of life or property. Examples of situations where this provision would apply are set forth in Section 247.3. However, this list is not intended to be exhaustive and other situations may trigger the nuisance provision. This provision is designed to make it easier for the Department to resolve complaints regarding the operation of an OWB.
No OWB may be operated in a manner that causes a plume with an opacity greater than 20 percent (six minute mean) as determined using EPA Reference Method 9 (or equivalent). An opacity reading greater than this standard may be an indication that an OWB is not being operated properly (e.g., improper fuel(s) being used). This provision is included in Part 247 to give the Department another tool to effectually resolve complaint situations.
2. Requirements for New OWBs
New OWBs, defined as those units that commence operation on or after April 15, 2011, must be equipped with a permanent stack extending not less than 18 feet above grade. The Department may require that the stack height extend up to two feet above the roof peak of any structure located within 150 feet of the OWB when necessary to adequately disperse smoke emitted from an outdoor wood boiler. In addition, based upon location-specific factors such as the height of nearby buildings, terrain, etc., the permanent stack may need to be taller than 18 feet in order to avoid creating nuisance conditions. In the proposed rule, the stack height requirement was a minimum of two feet above the peak of any roof structure located within 150 feet of an OWB and no less than 18 feet above ground level. The Department revised the stack height requirement to be a minimum of 18 feet above ground level. In addition, a stack may need to extend 2 feet higher than the peak of any roof structure within 150 feet of an OWB in order to address nuisance conditions. This revision will allow the Department, on a case-by-case basis, to require a stack height up to two feet above the roof peak when necessary to adequately disperse smoke. This provision will further enhance the Department's enforcement tools under the nuisance provisions.
There are two classifications of new OWBs in Part 247. Units with thermal output ratings of 250,000 British thermal units per hour (Btu/h) or less are classified as 'residential-size' OWBs. Units with thermal output ratings greater than 250,000 Btu/h are classified as 'commercial-size' OWBs. New residential-size OWBs must meet a weighted average particulate matter emission limit of 0.32 pounds per million Btu heat output. The particulate matter emission rate for any burn category with a burn rate less than or equal to 1.5 kilograms per hour (kg/h) may not exceed 15.0 g/h. The particulate matter emission rate for any burn category with a burn rate greater than 1.5 kg/h may not exceed 18.0 g/h. New commercial-size OWBs must meet a weighted average particulate emission limit of 0.32 pounds per million Btu heat output. In addition, the particulate emission rate for any one burn category may not exceed 20.0 g/h. These emission standards are comparable to the standards promulgated by the states of Vermont, Massachusetts and Maine and the standards proposed by the state of Pennsylvania.
Setback requirements are set forth in Part 247 for new OWBs. A new residential-size OWB must be located 100 feet or more from the nearest property boundary line. A new commercial-size OWB must be located 200 feet or more from the nearest property boundary line, 300 feet or more from the nearest property boundary line of a residentially zoned property and 1000 feet or more from a school. There are exceptions incorporated into Part 247 whereby the setbacks may be based upon the distance to the nearest residence not served by the OWB if an OWB is sited on contiguous agricultural lands of five or more acres.
3. Requirements that Apply to Manufacturers
There are two provisions in Part 247 that apply to OWB manufacturers. Manufacturers are responsible for applying for a certificate of compliance for each model line they plan to sell in New York. Second, manufacturers are responsible for affixing a permanent label on each OWB to be sold in New York. The following information must be included on the permanent label is set forth is Section 247.7:
a. name and address of the manufacturer;
b. date the OWB was manufactured;
c. model name and number;
d. serial number;
e. thermal output rating of the OWB in British thermal units per hour; and
f. certified particulate emission rate.
These provisions are included in Part 247 to help ensure that only certified OWBs are sold in New York from April 15, 2011 forward.
4. Requirements that Apply to Distributors
Distributors must provide a 'Notice to Buyers' (Notice) to prospective buyers or lessees of OWBs. The following must be included in the Notice:
a. an acknowledgement that the buyer or lessee was provided with a copy of Part 247;
b. a list of the fuels that may be burned in the OWB as set forth in the certificate of compliance issued to the manufacturer; and
c. a statement that even if the requirements set forth in Part 247 are met, there may be conditions or locations in which the use of an OWB unreasonably interferes with another person's use or enjoyment of property or even damage human health, and if such a situation occurs the owner or lessee of the outdoor wood boiler causing the situation may be subject to sanctions that can include a requirement to remove the device at their own expense as well as any other penalty allowed by law.
The Notice must be signed by the distributor and buyer (or lessee) when the sale (or lease) is completed. At that time, the following information must be incorporated into the Notice:
a. name and address of the owner or lessee of the OWB;
b. street address where the OWB was installed (if different from item (a) above);
c. name of manufacturer, model line and date of manufacture of the OWB;
d. height of the permanent stack for the OWB; and
e. distance from the OWB to the nearest property boundary line or residence not served by an OWB, as appropriate.
In the proposed rule, the Department included a requirement that a distributor also provide the height of the peak of the highest roof structure within 150 of a new OWB. This requirement was removed from Part 247 due to changes made to the stack height requirements. The rule now requires a stack height extending up to two feet above the roof peak of any structure located within 150 feet of the OWB only if the Department determines that it is necessary to adequately disperse smoke emitted from an OWB. Since this determination will be made on a case-by-case basis, it is not necessary for the distributor to include in the Notice a determination of the height of roof structures within 150 feet.
The distributor must submit the completed Notice to the Regional Air Pollution Control Engineer for the location where the OWB was installed within seven (7) days of making delivery of the new OWB to the buyer or lessee. These provisions are included in Part 247 to help ensure that only certified OWBs are sold in New York beginning on April 15, 2011 and that the stack height and setback requirements for new OWBs are met.
Costs
Manufacturers will incur research and development costs to develop new OWBs that can meet the emission limits set forth in Part 247. In order for a new OWB model line to be certified under Part 247, it must be tested per the protocols of Method 28-OWHH by an independent laboratory. The cost to manufacturers to have units tested is approximately $15,000 to $20,000 per certification test. Most New England states are in the process of promulgating rules similar to Part 247. Therefore, the costs for manufacturers to comply with Part 247 will be the same as the costs to comply with OWB regulations promulgated in other northeastern states. As a result, the cost of new OWBs in New York is expected to be commensurate with other northeastern states.
All new OWBs will be subject to an eighteen-foot minimum stack height requirement. The estimated cost for stack extensions is $200 for each four foot section. A typical cost for extending an OWB stack is expected to be $600 plus installation costs.
Paperwork
All new OWBs must be of a model certified by the Department. Every five years, manufacturers will need to apply for certification for each model they want to sell in New York. The Department will develop an application form which manufacturers will need to complete and submit with a certification package. The information that must be included in each application package is set forth in Section 247.8.
The distributor and owner (or lessee) of a new OWB must sign and date a "Notice to Buyers" (Notice) form supplied by the distributor. The original copy of the signed Notice must be submitted to the appropriate regional office within seven (7) days of delivery of the OWB to the owner/operator. The information that must be included in the Notice is specified in Section 247.9.
1 "Smoke Gets in Your Lungs: Outdoor Wood Boilers in New York State,” Judith Schreiber et. al., p. 4 (March 2008).
2 The term 'clean wood' is defined in Section 247.2 as wood that has not been painted, stained or treated with any other coatings, glues or preservatives, including, but not limited to, chromated copper arsenate, creosote, alkaline copper quaternary, copper azole or pentachlorophenol.
3 See Section 247.3(b) for the complete list of prohibited fuels. This list should not be considered the complete list of prohibited fuels since any fuel not authorized under Section 247.4 (Approved Fuels) will be considered a prohibited fuel.
Revised Regulatory Flexibility Analysis
The purpose of Part 247 is to establish regulatory requirements for outdoor wood boilers (OWBs), most of which are not subject to any current federal or state regulations. These sources may currently be subject to municipal ordinances which have been adopted in some areas due to the lack of federal or state regulations. These ordinances were generally adopted to address complaints received by municipal governments from residents living in the vicinity of OWBs. Part 247 is intended to regulate OWBs at the statewide level under the jurisdiction of the Department of Environmental Conservation (Department) and remove the regulatory burden from municipal governments.
The Department is proposing operational requirements, such as specifying which fuels may or may not be used, that will apply to all OWBs. Particulate emission standards and stack height and setback requirements are proposed for new OWBs. The process by which manufacturers may apply to certify new OWB models for sale in New York is set forth in the proposed rule. The requirements that will apply to distributors are also set forth in the proposed rule. The term 'distributor' is defined in Part 247 as one who sells or leases outdoor wood boilers to end users.
EFFECTS ON SMALL BUSINESS AND LOCAL GOVERNMENTS
The greatest impacts of the provisions in Part 247 will be felt by manufacturers of new OWBs. The Department anticipates that the state-wide standards for OWBs contained in Part 247 will provide support and consistency to local governments that have been struggling with this issue.
There are more than 20 OWB manufacturers in the United States and Canada1. Most OWB manufacturers will need to redesign their models in order to comply with the particulate emission standards set forth in Sections 247.5 and 247.6. Manufacturers that develop model lines that meet the particulate emission standards for new OWBs will be able to compete in the New York market after the new requirements take effect on April 15, 2011. Manufacturers that do not develop model lines that meet the particulate emission standards for new OWBs will not be able to compete in the New York market.
Distributors working with manufacturers that develop models certified under Part 247 will be able to continue doing business in New York April 15, 2011 and beyond so long as they only sell models that comply with Part 247.
COMPLIANCE REQUIREMENTS
Part 247 sets forth compliance requirements that apply to OWB owners, manufacturers and distributors of new OWBs. A new OWB is defined as one that commences operation on or after April 15, 2011. The requirements that will apply to small businesses, specifically manufacturers and distributors, are discussed in the following two sections. There are no compliance requirements set forth in Part 247 that will specifically apply to local governments. The compliance requirements for OWBs in use as of the effective date of Part 247 do not impact manufacturers or distributors and are further discussed in the Rural Area Flexibility Analysis.
Requirements for Manufacturers
Sections 247.7 and 247.8 contain provisions that apply to OWB manufacturers. A permanent label (Section 247.7) must be affixed to all new OWBs. The label must be made of a material that is sufficiently durable to last the lifetime of the OWB and must contain the following information:
a. name and address of the manufacturer;
b. date the OWB was manufactured;
c. model name and number;
d. serial number;
e. thermal output rating in Btu/h; and
f. certified particulate emission rate (per Section 247.8).
Effective April 15, 2011, all new OWBs sold in New York must be of a model certified by the Department. A model is defined in Section 247.2 as all new OWBs manufactured by a single manufacturer that are similar in all material and design respects. The certification process is set forth in Section 247.8.
Two copies of the certification application must be submitted to the Department. The following information must be contained in a manufacturer's application for certification of a model as set forth in paragraph 247.8:
a. name and address of the manufacturer, the model name and number, serial number, date of manufacture and the thermal output rating, in Btu/h, of the outdoor wood boiler tested;
b. four color photographs of the tested unit showing the front, back and both sides of the unit;
c. engineering drawings and specifications for each of the following components:
1. firebox including a secondary combustion chamber;
2. air induction systems;
3. baffles;
4. refractory and insulation materials;
5. catalysts;
6. catalyst bypass mechanisms;
7. flue gas exit;
8. door and catalyst bypass gaskets;
9. outer shielding and coverings;
10. fuel feed system; and
11. blower motors and fan blade size.
d. final test report prepared by the testing laboratory; and
e. a copy of the operation and maintenance instructions.
In order for a model to be certified, the particulate emission rate must be determined by a test laboratory using Test Method 28-OWHH, which was developed by the EPA. Alternative methods may be used upon the written approval of the Department. A test laboratory must be accredited by the EPA for testing wood-burning residential space heaters in accordance with 40 CFR 60 Subpart AAA, Section 60.535 or another organization approved by the Department. A test laboratory must have no conflict of interest or financial gain in the outcome of the testing of OWBs.
The Department will issue a certificate of compliance if the application is deemed complete and the model is determined to be compliant with the particulate emission limits set forth in Section 247.5 or Section 247.6 (as appropriate). The certificate of compliance will be valid for five years. A change in the design of a model resulting in a change in the thermal output rating of the model constitutes the creation of a new model.
Requirements for Distributors
Section 247.9 applies to distributors. The term 'distributor' is defined in Section 247.2 as any person who sells or leases an OWB to an end user. Distributors are required to provide a prospective buyer or lessee of an OWB with a 'Notice to Buyers' (Notice). The following must be included in the Notice:
a. an acknowledgement that the buyer or lessee was provided a copy of Part 247;
b. a list of the fuels that may burned in the OWB as set forth in the certificate of compliance issued to the manufacturer; and
c. a statement that even if the requirements set forth in Part 247 are met there may be conditions or locations in which the use of an outdoor wood boiler unreasonably interferes with another person's use or enjoyment of property or even damage human health and if such a situation occurs the owner or lessee of the outdoor wood boiler causing the situation may be subject to sanctions that can include a requirement to remove the device at their own expense as well as any other penalty allowed by law.
The Notice must be signed and dated by the buyer (or lessee) and the distributor when the sale (or lease) of the OWB is completed. In addition, the following information must be added to the Notice:
a. name and address of the owner (or lessee) of the OWB;
b. street address where the OWB was installed (if different from item (a) above);
c. name of the manufacturer, model and date of manufacture of the OWB;
d. height of the permanent stack for the OWB; and
e. distance from the OWB to the nearest property boundary line or the nearest residence not served by an OWB, as appropriate.
In the proposed rule, the Department included a requirement that a distributor also provide the height of the peak of the highest roof structure within 150 of a new OWB. This requirement was removed from Part 247 due to changes made to the stack height requirements. The rule now requires a stack height extending up to two feet above the roof peak of any structure located within 150 feet of the OWB only if the Department determines that it is necessary to adequately disperse smoke emitted from an OWB. Since this determination will be made on a case-by-case basis, it is not necessary for the distributor to include in the Notice a determination of the height of roof structures within 150 feet.
The distributor must submit the completed Notice to the Department's regional office for the location where the OWB is installed within seven (7) days of making delivery of the OWB into the possession of the buyer (lessee).
PROFESSIONAL SERVICES
Manufacturers must have a model line tested by an independent test laboratory in order to generate the emissions data that need to be included in a certification application.
COMPLIANCE COSTS
All new OWBs must be equipped with a permanent stack extending at least 18 feet above ground level. Stack extensions will need to be installed on most OWBs. The estimated cost for stack extensions is $200 for each four foot section2. A typical cost for extending an OWB stack is expected to be $600 but could be more if a stack needs to be higher than 18 feet high in order to avoid creating a nuisance condition.
Manufacturers will incur research and development costs to develop new OWBs that can meet the particulate emission limits set forth in Part 247. In order for a new OWB model line to be certified under Section 247.8, it must be tested per the protocols of Method 28-OWHH by an independent laboratory. The cost to manufacturers to have units tested is approximately $15,000 to $20,000 per certification test. New York State is not the only state promulgating emission standards for new OWBs. Most New England states have promulgated rules similar to Part 247. Therefore, the costs to comply with Part 247 will be similar to those in the New England states with OWB regulations. As a result, the cost of new OWBs in New York is expected to be commensurate with such costs in other northeastern states.
Distributors who purchased OWBs wholesale from manufacturers will not be able to sell non-compliant OWBs after April 14, 2011. Therefore, any unsold inventory of non-compliant OWBs would need to be sold to distributors in other states, sold back to the manufacturers or taken as a business loss.
MINIMIZING ADVERSE IMPACT
Part 247 is based upon a model rule developed by the Northeast States for Coordinated Air Use Management (NESCAUM) in January 2007. This model rule was developed as a guide for member states3 as they draft their OWB regulations.
One of the key aspects of the NESCAUM model rule is that new OWB models must be certified by the state environmental agency. There are recertification and quality assurance provisions in the model rule along with a requirement that a model be recertified if a design change is made. In Part 247, the certification of a model is valid for five years. Manufacturers may make minor changes to their models without the expense of recertifying the model as long as the thermal output rating of the model does not change. In this way, a manufacturer does not have to submit design specification changes to the Department to determine if the model needs to be recertified.
SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION
Department staff met with representatives of OWB manufacturers on June 15, 2007, April 16, 2009 and December 2, 2009. A copy of the draft rule was sent to stakeholders on November 14, 2007 and a stakeholder meeting was held on November 29, 2007 in Albany.
ECONOMIC AND TECHNOLOGICAL FEASIBILITY
As of September 2010, there are at least 19 models that have qualified under Phase 2 of the USEPA's voluntary program and that may meet the proposed PM limits for new residential OWBs. The Department has not reviewed the test reports prepared by independent test laboratories and other documentation for these models. The EPA has reviewed the test reports and determined that the models meet the requirements of the EPA's Outdoor Wood-fired Hydronic Heaters Program (see www.epa.gov/woodheaters/models.htm).
1 "Smoke Gets in Your Lungs: Outdoor Wood Boilers in New York State,” Judith Schreiber et. al., pp. 31-32 (Oct. 2005).
2 www.VentingPipe.com. Part number 9607. Downloaded September 12, 2007.
3 The NESCAUM member states are New Jersey, New York, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire and Maine.
Revised Rural Area Flexibility Analysis
The purpose of Part 247 is to establish regulatory requirements for outdoor wood boilers (OWBs), most of which are not subject to any current federal or state regulations. These sources may currently be subject to municipal ordinances which have been adopted in some areas due to the lack of federal or state regulations. These ordinances were generally adopted to address complaints received by municipal governments from residents living in the vicinity of OWBs. The Department anticipates that the state-wide standards for OWBs contained in Part 247 will provide support and consistency to local governments that have been struggling with this issue.
The Department is proposing operational requirements, such as specifying which fuels may or may not be used, that will apply to all OWBs. Particulate emission standards and stack height and setback requirements are proposed for new OWBs. The process by which manufacturers may apply to certify new OWB models for sale in New York is set forth in the proposed rule. The requirements that will apply to distributors are also set forth in the proposed rule. The term 'distributor' is defined in Part 247 as one who sells or leases outdoor wood boilers to end users.
TYPES AND ESTIMATED NUMBER OF RURAL AREAS AFFECTED
Part 247 will apply statewide. The Department and other governmental agencies1 have received numerous complaints regarding smoke emissions from OWBs. Outdoor wood boilers have become more popular in recent years as a means to reduce home energy costs. In New York State, OWB sales increased from 606 units in 1999 to an estimated 2,640 units in 20072.
COMPLIANCE REQUIREMENTS
The compliance requirements for new OWBs are set forth in Part 247. Outdoor wood boilers that commence operation on or after April 15, 2011 are considered new OWBs. The requirements that apply to manufacturers and distributors of new OWBs in rural areas are presented in the "Regulatory Flexibility Analysis for Small Businesses and Local Governments" for this rulemaking.
The compliance requirements that apply to end users of OWBs are presented in the following three sections.
General Provisions
The approved fuels that may be burned in an OWB are listed in Section 247.4. Seasoned clean wood3 and wood pellets made from clean wood may be burned in an OWB. Natural gas, heating oil that complies with the fuel sulfur limits set forth in Subpart 225-1 and non-glossy, non-colored paper, including newspaper, may be used as starter fuels4.
A list of prohibited fuels is included in Section 247.3 as guidance to OWB operators. The list of prohibited fuels includes, but is not limited to, garbage, household chemicals, plastics, plywood and coal5.
A nuisance provision is included in Section 247.3 which prohibits the operation of an OWB in a manner that may cause injury or damage to human life or which unreasonably interferes with another person's enjoyment of life or property. Examples of situations where this provision would apply are set forth in Part 247(see subdivision 247.3(c)). However, this list is not intended to be exhaustive and other situations may trigger the nuisance provision. This provision is designed to make it easier for the Department to resolve complaints regarding the operation of an OWB.
No OWB may be operated in a manner that causes a plume with an opacity greater than 20 percent (six minute mean) as determined using EPA Reference Method 9 (or equivalent). An opacity reading greater than this standard may be an indication that an OWB is not being operated properly (e.g., improper fuel(s) being used). This provision is included in Part 247 to give the Department another tool to effectually resolve complaint situations.
New OWBs
There are two classifications of new OWBs in Part 247. Units with thermal output ratings of 250,000 British thermal units per hour (Btu/h) or less are classified as 'residential-size' OWBs. Units with thermal output ratings greater than 250,000 Btu/h are classified as 'commercial-size' OWBs. All new OWBs must be equipped with permanent stacks extending a minimum of 18 feet above ground level. The Department may require that the stack height extend up to two feet above the roof peak of any structure located within 150 feet of the OWB when necessary to adequately disperse smoke emitted from an outdoor wood boiler. In the proposed rule, the stack height requirement was a minimum of two feet above the peak of any roof structure located within 150 feet of an OWB and no less than 18 feet above ground level. The Department revised the stack height requirement to be a minimum of 18 feet above ground level. In addition, a stack may need to extend two feet higher than the peak of any roof structure within 150 feet of an OWB in order to address nuisance conditions. This revision will allow the Department, on a case-by-case basis, to require a stack height up to two feet above the roof peak when necessary to adequately disperse smoke. This provision will further enhance the Department's enforcement tools under the nuisance provisions. The particulate emission limits are slightly different for each classification.
New residential-size OWBs must meet a weighted average particulate emission limit of 0.32 pounds per million Btu heat output as determined using Test Method 28-OWHH. The particulate matter emission rate for any burn category with a burn rate less than or equal to 1.5 kilograms per hour (kg/h) may not exceed 15.0 g/h6. The particulate matter emission rate for any burn category with a burn rate greater than 1.5 kg/h may not exceed 18.0 g/h. These emission standards are analogous to the EPA's standards for indoor woodstoves (40 CFR 60 Subpart AAA). New commercial-size OWBs must also meet a weighted average particulate emission limit of 0.32 pounds per million Btu heat output, but the particulate emission rate for any one burn category may not exceed 20.0 g/h.
A new residential-size OWB must be located 100 feet or more from the nearest property boundary line. A new commercial-size OWB must be located 200 feet or more from the nearest property boundary line and 300 feet or more from the nearest property boundary line of a residentially zoned property and 1000 feet or more from the nearest school. There are exceptions incorporated into Part 247 whereby the setbacks may be based upon the distance to the nearest residence not served by the OWB if an OWB is sited on contiguous agricultural lands of five or more acres.
COSTS
All new OWBs will be subject to an eighteen-foot minimum stack height requirement. The estimated cost for stack extensions is $200 for each four foot section. A typical cost for extending an OWB stack is expected to be $600 plus installation costs.
MINIMIZING ADVERSE IMPACTS
Setback requirements for new OWBs installed on contiguous agricultural lands of five acres or more may be based upon the distance from an OWB to the nearest residence not served by the OWB. This applies to the 100-foot setback for residential-sized OWBs and the 300-foot setback for commercial-sized OWBs. This exception was incorporated into the rule to give farmers more flexibility for installing OWBs based on comments received by the Department stating that farm houses in rural areas are generally not sited close to one another but may be sited near a roadway or other property boundary line. Commenters also noted that farmers may own one or more adjoining properties that create the property boundary line.
RURAL AREA PARTICIPATION
The Department conducted a stakeholder meeting on November 29, 2007. Among the stakeholders that attended were representatives of the New York Farm Bureau and the Empire State Forest Products Association. In addition, the Department held several public hearings on Part 247 throughout the state, many of which were located in rural areas.
1 The New York State Department of Health, the Office of the Attorney General and municipal governments have received complaints regarding smoke emanating from OWBs.
2 "Smoke Gets in Your Lungs: Outdoor Wood Boilers in New York State,” Judith Schreiber et. al., p. 4 (March 2008).
3 The term 'clean wood' is defined in Part 247 as wood that has not been painted, stained or treated with any other coatings, glues or preservatives, including, but not limited to, chromated copper arsenate, creosote, alkaline copper quaternary, copper azole or pentachlorophenol.
4 The Department may approve the use of additional fuels on a model-by-model basis if data becomes available showing that the emission limits set forth in Part 247 can be met.
5 See Section 247.3(b) for the complete list of prohibited fuels. This list should not be considered the complete list of prohibited fuels since any fuel not authorized under Section 247.4 (Approved Fuels) will be considered a prohibited fuel.
6 A discussion regarding Test Method 28-OWHH and the burn categories is presented in the “Regulatory Impact Statement” for this rulemaking.
Revised Job Impact Statement
The purpose of Part 247 is to establish regulatory requirements for outdoor wood boilers (OWBs), most of which are not subject to any current federal or state regulations. These sources may currently be subject to municipal ordinances which have been adopted in some areas due to the lack of federal or state regulations. These ordinances were generally adopted to address complaints received by municipal governments from residents living in the vicinity of OWBs. The Department anticipates that the state-wide standards for OWBs contained in Part 247 will provide support and consistency to local governments that have been struggling with this issue.
The Department is proposing to establish particulate emission limits and stack height and setback requirements for new OWBs (units commencing operation on or after April 15, 2011). Operational requirements that will apply to all OWBs are incorporated into the proposed rule. The process by which manufacturers may apply to certify their OWB models for sale in New York is set forth in the proposed rule. The requirements that will apply to distributors1 are also set forth in the proposed rule.
NATURE OF IMPACT
Most OWB manufacturers will need to redesign their models in order to comply with the particulate matter emission standards set forth in Sections 247.5 and 247.6. In the opinion of the Department, the technology exists for manufacturers to develop compliant OWB models2. Manufacturers that develop model lines that meet the particulate emission standards for new OWBs will be able to compete in the New York market after the new requirements take effect on April 15, 2011. Manufacturers that do not develop model lines that meet the particulate emission standards for new OWBs will not be able to compete in the New York market.
OWB manufacturers have been aware of the Department's Part 247 rulemaking effort since 2007. Several New England states have adopted emission standards similar to those included in Part 247. The rule allows a limited sell-through period, until April 14, 2011, for distributors to sell existing stock. Therefore, in the opinion of the Department, no additional time is necessary to sell non-conforming OWBs.
CATEGORIES AND NUMBERS OF JOBS OR EMPLOYMENT OPPORTUNITIES AFFECTED
The jobs and employment opportunities affected by this rulemaking are those associated with manufacturers and distributors of OWBs in New York. There are more than 20 OWB manufacturers in the United States and Canada3. The number of distributors in New York is not known. The Department anticipates that the net effect on employment opportunities will be small since the technology needed to meet the particulate emission limits existed as of May 2008.
REGIONS OF ADVERSE IMPACT
Part 247 will apply state-wide. All OWB manufacturers and distributors in New York will be required to comply with the proposed regulations, if adopted.
MINIMIZING ADVERSE IMPACT
The proposed particulate emission limits for new OWBs can be met with current technology.
SELF-EMPLOYMENT OPPORTUNITIES
The net effect on business opportunities for self-employment (distributors or OWB installers) is expected to be small because OWBs may continue to be sold and installed in New York under the proposed regulations after April 15, 2011, so long as the OWBs meet the requirements of this proposal.
1 The term 'distributor' is defined in Part 247 as any person who sells or leases new OWBs to end users.
2 As of December 2, 2009, there are ten models which may meet the proposed particulate matter limits for new residential OWBs. The Department has not reviewed the test reports prepared by the independent test laboratories and other documentation for these models. The United States Environmental Protection Agency (EPA) has reviewed the test reports and determined that these models meet the requirements of the EPA's Outdoor Wood-fired Hydronic Heaters Program (see www.epa.gov/woodheaters/models.htm).
3 Schreiber, Judith et. al., "Smoke Gets in Your Lungs: Outdoor Wood Boilers in New York State”, October 2005, pages 31-32.
Assessment of Public Comment
Comments received from April 21, 2010 through 5:00 P.M., July 2, 2010
A total of 483 distinct comments were submitted by the public in response to the Department's proposed rule for regulating outdoor wood boilers (Part 247). The purpose of this summary is to highlight the key issues raised by the public and the Department's response to those issues. The remainder of this document is divided into seven sections. General comments regarding the rule are discussed in Section 1. The three major areas addressed by commenters were the phase out and seasonal use restrictions for existing outdoor wood boilers (OWBs) and the stack height provisions applicable to both new and existing OWBs. The comments received on those three issues are discussed in Sections 2, 3, and 4, respectively. Issues relating to the setback requirements and emission limits for new OWBs are discussed in Sections 5 and 6. Finally, comments pertaining to enforcement issues are discussed in Section 7.
Section 1 - General Comments
General comments in favor of the rule fell into four categories. These comments included support of regulating OWBs and support of regulation in order to protect the rights of those living near an OWB to enjoy their property or for the health of their families. Other commenters supported regulating OWBs to reduce conflicts with neighbors and the likelihood and expense of litigation. The Department thanked these commenters for their support of Part 247. Some commenters stated their support of a state-wide rule due to inadequate or lack of local ordinances or the lax enforcement of local ordinances. The Department thanked those commenters for their support of the rule and agreed that state-wide standards must be established in order to reduce the impacts of pollution from OWBs.
Comments dealing with general opposition to the rule also fell into several categories. The Department disagrees with those commenters and re-iterated the reasons for regulating OWBs which were outlined in the Regulatory Impact Statement (RIS). In addition, some commenters advocated that OWBs be regulated by local governments. The Department is aware of situations where people have unsuccessfully sought local ordinances for regulating OWBs and anticipates that the state-wide standards contained in Part 247 will provide support and consistency to local governments that have been struggling with how to regulate OWBs.
Section 2 - Phase Out Provisions
The Department received more comments regarding the phase out provisions for existing OWBs included in Section 247.10 than any other aspect of the proposed rule. Although some commenters were in favor of the phase out provisions as proposed or with some modification, the vast majority of the commenters addressing this issue were opposed to the phase out provision. While the comments in opposition to the phase out provisions varied slightly, they consisted of one or more of the following statements: cannot afford to replace an existing OWB; cannot afford an alternative fuel source; the expected lifetime of an OWB is greater than ten years; other appliances and vehicles are not required to be taken out of service after the warranty period expires; existing OWBs were purchased legally and in good faith; and no other state has required the phase out of existing OWBs. Some commenters inquired if the phase out of existing OWBs would be accompanied with some type of re-imbursement program.
After careful consideration, the Department has decided to revisit this issue. Therefore, at this time, the Department will not finalize this portion of Part 247 relating specifically to the phase out of existing OWBs.
Section 3 - Seasonal Use Restrictions
The comments received concerning the seasonal use restrictions were mixed. Some commenters supported the proposed seasonal restrictions while others were opposed to the provisions altogether. Several commenters suggested seasonal restrictions that were longer or shorter than the provisions in the proposed rule. After careful consideration, the Department has decided to revisit this issue. Therefore, at this time, the Department will not finalize this portion of Part 247 relating specifically to the seasonal use restrictions for existing OWBs.
Section 4 - Stack Height Provisions
While some commenters supported the proposed provisions and some supported an 18-foot minimum stack height, most commenters were opposed to the proposed stack height provisions. Statements in opposition included one or more of the following: cost; engineering and safety concerns; aesthetics; and that the higher stacks will cause existing OWBs to operate differently. Some commenters suggested that stack height be determined on a case-by-case basis in order to remedy legitimate nuisance situations. Other commenters advocated that stack height requirements be established by local governments.
In response to comments concerning the stack height requirements, the Department acknowledged that the vast majority of comments were in opposition to the proposed provisions. Most of the objections came from form letters developed by OWB manufacturers and the New York Farm Bureau (NYFB). Such objections were surprising considering the OWB manufacturers' and NYFB's roles in suggesting the stack height provisions included in the proposed rule.
The Hearth Patio & Barbeque Association's (HPBA) OWB Caucus and the NYFB advocated during the stakeholder process that the Department change the minimum stack height requirements from a minimum of 18 feet above ground level to "two feet higher than the height of adjacent structures."
After reviewing public comments on this matter, the Department has modified the minimum stack height requirements by removing the extra stack height requirements suggested by the HPBA and NYFB. Furthermore, the Department has decided to require stack height requirements only for new OWBs at this time. The Department will revisit this issue in the future with respect to existing OWBs. Therefore, at this time, the Department will not finalize this portion of Part 247 relating specifically to the stack height requirements for existing OWBs.
The final rule requires a minimum stack height of 18 feet for new OWBs. There may be cases where a stack will need to be higher than 18 feet above ground level and those determinations will be made on a case-by-case basis. In those cases, a stack height extending up to two feet above the roof peak of any structure located within 150 feet of the OWB is now only required if the Department determines that it is necessary to adequately disperse smoke emitted from an OWB. This will help alleviate nuisance conditions on a case-by-case basis and account for any relevant conditions, such as nearby barns and silos.
Section 5 - Setback Requirements
Several commenters supported setback requirements in general or the specific provisions in the proposed rule. The Department thanked those commenters for their comments. Some commenters advocated for minimum lot size. The Department responded that there is no minimum lot size required in Part 247. However, in order to meet the 100-foot setback for a new residential-size OWB, one would likely need at least a one-acre lot. Other commenters advocated for stricter setback requirements. The Department noted that in the model rule developed by the Northeast States for Coordinated Air Use Management (NESCAUM), there were no setback requirements for new OWBs meeting the emission limits in Part 247. Setback requirements for new OWBs are included in Part 247 to ensure that as more OWBs are installed, the plumes from these OWBs will be sufficiently dispersed prior to reaching any receptors.
Several commenters opposed setbacks for new OWBs or advocated that setback requirements be established by local governments. The Department responded to these comments by stating that NESCAUM concluded that no setback requirements were necessary for residential-size new OWBs based upon computer modeling conducted by the Department. The Department proposed the 100-foot setbacks as an engineering control (margin of safety). The Department cannot envision every scenario regarding how a new OWB will be operated. If OWB owners operate their units in compliance with Part 247, then the Department is confident that the particulate matter (PM) levels at distances greater than 100 feet from OWBs will not cause a public health concern. The 100-foot setback in the rule likely requires a minimum parcel size of one acre. An exception is provided in Part 247 for new residential-sized OWBs installed on contiguous agricultural lands larger than five acres whereby the setback would be based on the distance to the nearest residence not served by the OWB. In such cases, it would be expected new OWBs would be spaced far enough apart such that a receptor would not be impacted by multiple OWBs. The Department is aware that even with these setback requirements there may be cases in which a nuisance situation still occurs. These situations will be dealt with on a case-by-case basis.
Section 6 - Emission Limits
Statements in support and opposition to establishing emission limits for new OWBs were submitted. The Department thanked the commenters for their comments and as stated that in the RIS, the purpose of Part 247 is to establish regulatory requirements to reduce pollution from OWBs, especially new OWBs, which are not subject to any current federal or state regulations.
Some commenters advocated that the Department adopt stricter PM emission limits such as was adopted by the State of Washington. In response, the Department stated that consideration was given to adopting a rule similar to the rule adopted by the State of Washington. As stated in the RIS, while some of the provisions of the Washington rule were incorporated into Part 247, the overall approach in that rule was rejected because the Department believes that the provisions of Part 247 would allow for the continued use of OWBs which are fired with a renewable fuel, thus reducing the State's dependence on fossil fuels.
Section 7 - Enforcement Issues
There were several comments and questions regarding how the provisions of Part 247 will be enforced. Commenters inquired as to who is authorized to enforce the provisions of the rule; whether surprise inspections will be conducted; and how complaints should be filed. The Department responded that the Department, through its Divisions of Air Resources and Law Enforcement will enforce Part 247. Complaints may be made by calling the Department's regional office for that locality.
