Specific reasons underlying the finding of necessity:
The Department's Division of Air Resources is amending 6 NYCRR Parts 247 to extend the sell-through period for distributors of OWBs from April 15, 2011 through July 14, 2011. Part 247 took effect on January 28, 2011. As adopted, distributors had 76 days to move existing inventory of non-compliant models. This 76-day sell-through period coincides with a period of time when the ground is frozen to a depth of three feet or more thus making it very difficult, if not impossible, to install an OWB. The piping and electrical lines need to be buried (or at least well insulated) between an OWB and the building it services. Since the rule requires that non-certified OWBs commence operation prior to April 15, 2011, distributors could not move existing inventory during the sell-through period.
ADVERSE IMPACT ON THE GENERAL WELFARE
Absent a concession by the manufacturers to take back non-compliant inventory from their distributors or the ability to sell non-compliant units elsewhere, the seasonally-related limitations occurring during the 76-day sell-through period results in an additional cost burden on distributors, negatively impacting businesses located throughout New York State. In one case, it came to the Department's attention that an OWB distributor located in New York had approximately $200,000 worth of non-certified OWB inventory which he could not sell or install due to seasonal conditions, negatively impacting his business and 20 employees. In addition, individuals wishing to purchase and install these units during the sell-through period may not have had an opportunity to do so due to the coinciding seasonal conditions.
Therefore, in order to preserve the general welfare of the State, this emergency rule will allow distributors a reasonable additional opportunity to sell their existing inventory of non-compliant OWBs, and individuals to install them, through July 14, 2011. During this extended sell-through period, all other provisions of Part 247 applicable to new OWBs shall remain in effect. This includes, but is not limited to, the setback, stack height and Notice to Buyers provisions as well as the fuel use provisions.
CONCLUSIONS
In the interest of the general welfare of the citizens of New York, the Department is adopting, through emergency rulemaking, a revision to Part 247 which will extend the sell-through period through July 14, 2011.
Subject:
Outdoor wood boilers used to heat homes and commercial establishments.
Purpose:
Provide for an extension to the sell-through provision for non-certified outdoor wood boilers.
Text of emergency rule:
Sections 247.1 through 247.9 remain unchanged.
Section 247.10 is re-numbered as Section 247.11.
A new Section 247.10 is added as follows:
Section 247.10 Sell-through Provision
Through July 14, 2011, distributors may continue to sell or lease existing inventory that was acquired by the distributor prior to April 15, 2011 and that does not meet the requirements for certification under Section 247.8 of this Part.
This notice is intended
to serve only as an emergency adoption, to be valid for 90 days or less. This rule expires July 13, 2011.
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: 247owb@gw.dec.state.ny.us
Regulatory Impact Statement
STATUTORY AUTHORITY
The promulgation of Part 247 is authorized by the following sections of the Environmental Conservation Law (ECL):
Section 1-0101. This Section declares it to be the policy of New York State to conserve, improve and protect its natural resources and environment and control air pollution in order to enhance the health, safety and welfare of the people of New York State and their overall economic and social well being. Section 1-0101 further expresses, among other things, that it is the policy of New York State to coordinate the State's environmental plans, functions, powers and programs with those of the Federal government and other regions and manage air resources to the end that the State may fulfill its responsibility as trustee of the environment for present and future generations. This Section also provides that it is the policy of New York State to foster, promote, create and maintain conditions by which man and nature can thrive in harmony by providing that care is taken for air resources that are shared with other states.
Section 3-0301. This Section empowers the Department to promulgate regulations to carry out the environmental policy of New York State set forth in Section 1-0101 and specifically empowers the Department to cooperate with officials and representatives of the federal government, other states and interstate agencies regarding problems affecting the environment of New York State. Section 3-0301 specifically empowers the Department to provide for the prevention and abatement of air pollution.
Section 19-0103. This Section declares that it is the policy of New York State to maintain the purity of air resources and to require the use of all available practical and reasonable methods to prevent and control air pollution in the State.
Section 19-0105. This Section declares that it is the purpose of Article 19 of the ECL to safeguard the air resources of New York State under a program which is consistent with the policy expressed in Section 19-0103 and in accordance with other provisions of Article 19.
Section 19-0301. This Section declares that the Department has the power to promulgate regulations for preventing, controlling or prohibiting air pollution.
Section 19-0303. This Section provides that the terms of any air pollution control regulation promulgated by the Department may differentiate between particular types and conditions of air pollution and air contamination sources.
Section 19-0305. This Section authorizes the Department to enforce the codes, rules and regulations established in accordance with Article 19.
Sections 71-2103 and 71-2105. These Sections include provisions for the civil and criminal enforcement of Article 19 of the ECL.
LEGISLATIVE OBJECTIVES
It is the declared policy of the State of New York, as pronounced by the Legislature in the Environmental Conservation Law, to maintain a reasonable degree of purity of the air resources of the state, consistent with the public health and welfare and the public enjoyment and the protection of physical property and other resources. That policy requires the use of all available practical and reasonable methods to prevent and control air pollution in the State of New York. The Department has the authority, as provided for in the Environmental Conservation Law, to formulate, adopt and promulgate, amend and repeal codes and rules and regulations for preventing, controlling or prohibiting air pollution in a manner consistent with that policy. In furtherance of that policy and the Legislature's objectives, the proposed emergency rule will provide a reasonable extension of the sell-through period for distributors and purchasers to address general welfare concerns.
NEEDS AND BENEFITS
Part 247 took effect on January 28, 2011. As adopted, distributors had 76 days to move existing inventory of non-certified models. This 76-day sell-through period coincides with a period of time when the ground is frozen to a depth of three feet or more thus making it very difficult, if not impossible, to install an OWB. The piping and electrical lines need to be buried (or at least well insulated) between an OWB and the building it services. Since the rule requires that non-certified OWBs commence operation prior to April 15, 2011, distributors could not move existing inventory during the sell-through period in the adopted rule.
Through this emergency rule making, the Department is extending the sell-through period through July 14, 2011. This will allow distributors the opportunity to sell and install their existing inventory of non-certified OWBs. Further, this extension will give distributors time to replenish their inventory with models compliant with the emission standards set forth in Part 247. During this extended sell-through period, all other provisions of Part 247 applicable to new OWBs shall remain in effect. This includes, but is not limited to, the setback, stack height and Notice to Buyers provisions as well as the fuel use provisions.
Due to the high cost of fuel oil, the Department anticipates that many New Yorkers will be considering the purchase of an OWB as a cost-saving measure. The extension of the sell-through provision of Part 247 will allow New Yorkers more OWB models to choose from. Those who buy or lease non-certified OWBs during the sell through period will be allowed to operate such boilers provided they comply with all other provisions of Part 247.
COSTS
This emergency rule making will not impose new costs on manufacturers or distributors. This emergency rule is expected to lead to reduced costs to buyers and lessees of OWBs since they will have more models to choose from during the sell-through period. In addition, this emergency rule will reduce costs for OWB distributors by allowing them more time to sell existing inventory which they could not otherwise return to the manufacturer or sell elsewhere.
PAPERWORK
This emergency rule making will not impose any new paperwork requirements on any entity.
LOCAL GOVERNMENT MANDATES
No additional record keeping, reporting or other requirements would be placed upon local governments.
DUPLICATION BETWEEN THIS REGULATION AND OTHER REGULATIONS AND LAWS
This emergency rule making will not be duplicative with any other law or regulation.
ALTERNATIVES
The Department evaluated the no action alternative in addition to the emergency rule. If this emergency rule is not adopted, distributors would be left with unsellable inventory and may be forced to lay off employees. Further, people who are considering the purchase of a new OWB in order to reduce heating costs will have very few OWB models to choose from.
FEDERAL STANDARDS
There are no federal regulations pertaining to OWBs. The EPA initiated a voluntary program in January 2007 designed to encourage manufacturers to develop cleaner OWBs. This program is being implemented in two phases. The maximum allowable particulate emission rate for a unit to be certified under Phase 2 of the EPA program is 0.32 lb per mmBtu heat output which is identical to the standards included in the adopted rule.
COMPLIANCE SCHEDULE
Through July 14, 2011, distributors may continue to sell or lease inventory not certified under Section 247.8 that was acquired prior to April 15, 2011. The Department will not enforce the certification provisions of 247.8 against OWB end users that acquire and commence operation of the OWB during the sell-through period of April 15, 2011 through July 14, 2011. This limited exception only applies to certification requirements under Section 247.8 for end users that buy, lease or operate new non-certified OWBs during the sell-through period and does not relieve any person from compliance with other provisions of Part 247, including but not limited to minimum setback and stack height requirements, fuel use restrictions, and Notice to Buyer requirements.
Regulatory Flexibility Analysis
The purpose of Part 247 was to establish regulatory requirements for outdoor wood boilers (OWBs). The rule was adopted on December 29, 2010 and took effect on January 28, 2011. The Department is amending Part 247 through an emergency rule making by adding a new Section 247.10 to extend the sell-through period through July 14, 2011 to allow distributors additional time to move inventory acquired prior to April 15, 2011.
EFFECTS ON SMALL BUSINESS AND LOCAL GOVERNMENTS
As per the adopted rule, distributors had 76 days to move existing inventory of non-certified models. This 76-day sell-through period coincides with a period of time when the ground is frozen to a depth of three feet or more thus making it very difficult, if not impossible, to install an OWB. The piping and electrical lines need to be buried (or at least well insulated) between an OWB and the building it services. Since the rule requires that non-certified OWBs commence operation prior to April 15, 2011, distributors could not move existing inventory during the sell-through period.
Through this emergency rule making, the Department is extending the sell-through period through July 14, 2011. This will allow distributors the opportunity to sell and install their existing inventory of non-certified OWBs. Further, this extension will give distributors time to replenish their inventory with models certified by the Department as meeting the emission standards set forth in Part 247. During this extended sell-through period, all other provisions of Part 247 applicable to new OWBs shall remain in effect. This includes, but is not limited to, the setback, stack height and Notice to Buyers provisions as well as the fuel use provisions.
COMPLIANCE REQUIREMENTS
Through July 14, 2011, distributors may continue to sell or lease inventory not certified under Section 247.8 acquired prior to April 15, 2011. Effective April 15, 2011, all other provisions of Part 247 applicable to new OWBs shall remain in effect. This includes, but is not limited to, the setback, stack height and Notice to Buyers provisions as well as the fuel use provisions.
Requirements for Manufacturers
No new requirements for manufacturers are included in this emergency rule making. Manufacturers must still apply for certification of the models they wish to sell in New York at the end of the sell-through period in the emergency rule. This requirement was included in the adopted rule.
Requirements for Distributors
This emergency rule provides distributors with an additional 90-day period to move existing inventories of non-certified OWB models. Distributors must comply with all other provisions of Part 247 including, but not limited to the Notice to Buyers provision (Section 247.9).
PROFESSIONAL SERVICES
No additional professional services would be required in order to comply with the provisions of this emergency rule.
COMPLIANCE COSTS
This emergency rule does not impose additional costs on manufacturers or distributors. This emergency rule is expected to lead to reduced costs to buyers or lessees of OWBs since they will have more models to choose from during the sell-through period. In addition, this emergency rule will reduce costs for OWB distributors by allowing them more time to sell existing inventory which they could not otherwise return to the manufacturer or sell elsewhere.
MINIMIZING ADVERSE IMPACT
This emergency rule making will allow distributors additional time to sell existing inventory and prevent layoffs in that business sector.
SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION
This emergency rule making is in response to concerns raised by distributors since the adoption of Part 247 on December 29, 2010.
ECONOMIC AND TECHNOLOGICAL FEASIBILITY
As of April 2011, there are 23 models that have qualified under Phase 2 of the USEPA's voluntary program. It is expected that most of these models will be certified by the DEC for sale in New York State by July 15, 2011 provided manufacturers submit applications for certification in a timely manner.
Rural Area Flexibility Analysis
The purpose of Part 247 was to establish regulatory requirements for outdoor wood boilers (OWBs). The rule was adopted on December 29, 2010 and took effect on January 28, 2011. The Department is amending Part 247 through an emergency rule making by adding a new Section 247.10 to extend the sell-through period through July 14, 2011 to allow distributors additional time to move inventory acquired prior to April 15, 2011.
TYPES AND ESTIMATED NUMBER OF RURAL AREAS AFFECTED
The emergency rule will apply statewide, but will have the greatest impact in rural areas. The Department does not know how many OWB distributors service customers in New York.
COMPLIANCE REQUIREMENTS
Outdoor wood boilers commencing operation on or after July 15, 2011 must be certified for sale in New York by the Department. Effective April 15, 2011, all other provisions of Part 247 applicable to new OWBs shall remain in effect. This includes, but is not limited to, the setback, stack height and Notice to Buyers provisions as well as the fuel use provisions.
The Department will not enforce the certification provisions of 247.8 against OWB end users that acquire and commence operation of the OWB during the sell-through period of April 15, 2011 through July 14, 2011. This limited exception only applies to certification requirements under Section 247.8 for end users that buy, lease or operate new non-certified OWBs during the sell-through period and does not relieve any person from compliance with other provisions of Part 247, including but not limited to minimum setback and stack height requirements, fuel use restrictions, and Notice to Buyer requirements.
COSTS
No additional costs are imposed on manufacturers, distributors or buyers of OWBs as a result of this emergency rule. This emergency rule is expected to lead to reduced costs to buyers and lessees of OWBs since they will have more models to choose from during the sell-through period. In addition, this emergency rule will reduce costs for OWB distributors by allowing them more time to sell existing inventory which they could not otherwise return to the manufacturer or sell elsewhere.
MINIMIZING ADVERSE IMPACTS
Due to the high cost of fuel oil, the Department anticipates that many New Yorkers will be considering the purchase of an OWB as a cost-saving measure. The extension of the sell-through provision of Part 247 will allow New Yorkers more OWB models to choose from. Further, this extension will give distributors time to replenish their inventory with models compliant with the emission standards set forth in Part 247.
RURAL AREA PARTICIPATION
This emergency rule making is in response to concerns raised by distributors since the adoption of Part 247 on December 29, 2010.
Job Impact Statement
The purpose of Part 247 was to establish regulatory requirements for outdoor wood boilers (OWBs). The rule was adopted on December 29, 2010 and took effect on January 28, 2011. The Department is amending Part 247 through an emergency rule making by adding a new Section 247.10 to extend the sell-through period through July 14, 2011 to allow distributors additional time to move inventory acquired prior to April 15, 2011.
NATURE OF IMPACT
Part 247 took effect on January 28, 2011. As adopted, distributors had 76 days to move existing inventory of non-compliant models. This 76-day sell-through period coincides with a period of time when the ground is frozen to a depth of three feet or more thus making it very difficult, if not impossible, to install an OWB. The piping and electrical lines need to be buried (or at least well insulated) between an OWB and the building it services. Since the rule requires that non-certified OWBs commence operation prior to April 15, 2011, distributors could not move existing inventory during the sell-through period.
Through this emergency rule making, the Department is extending the sell-through period through July 14, 2011. This will allow distributors the opportunity to sell and install their existing inventory of non-certified OWBs.
CATEGORIES AND NUMBERS OF JOBS OR EMPLOYMENT OPPORTUNITIES AFFECTED
The Department does not know how many OWB distributors service customers in New York.
REGIONS OF ADVERSE IMPACT
The emergency rule will apply state-wide, but the greatest impact will be in rural areas.
MINIMIZING ADVERSE IMPACT
This emergency rule making will allow distributors additional time to sell existing inventory and prevent layoffs in that business sector.
SELF-EMPLOYMENT OPPORTUNITIES
This emergency rule making will allow distributors additional time to sell existing inventory of non-certified OWBs thus reducing potential business losses.
