Subject: Public Comment on Rhode Island Proposed OWB Regulations
Dear Mr. McVay –
I respectfully submit my comments below on the proposed Adoption of Air Pollution Control Regulation No. 48, entitled “Outdoor Wood Boilers.”
Thank you for preparing the proposed APC Regulation Number 48 as needed by the Department of Environmental Management (DEM) to reduce hazardous air toxic emissions generated in Rhode Island by Outdoor Wood Boilers (OWBs).
However, this proposed regulation allows these specific devices to be exempt from existing state air pollution rules for visible emissions, particulate matter and air toxins.
This exemption is clearly stated by DEM on page 11 of the proposed regulation, which reads, “Federal or State Statutes: There are no federal or state statutes that this regulation is intended to comply with.”
All other emission sources are required to comply with Rhode Island’s state air rules. No permits are granted that allow any source to exceed state air rules, or federal Clean Air Act National Ambient Air Quality Standards (NAAQS) for fine particulates or other air toxins.
It is unfair to existing permittees and other PM2.5 emission sources to be required to comply with existing law, while these specific devices receive an exemption.
The Rhode Island DEM has the statutory obligation, legal authority and moral responsibility to enforce existing law on all sources of air emissions. The DEM air rules state “no person shall” in the definition of who the rules apply to and are intended for. DEM should not discriminate against facilities by requiring them to comply with the law, but allow exemptions to residential sources of emissions from OWBs that violate existing state air law.1
DEM needs to make a final, definitive determination whether or not any OWB can be legally operated in the state, including EPA OWHH Phase II Qualified OWBs. This determination needs to be made using existing standard and legally defensible testing and modeling methodologies.
If DEM determines that OWBs cannot be legally operated, this proposed rule would be unnecessary. DEM would then be legally obligated to report these findings to the Rhode Island Attorney General for consideration of consumer fraud violations by OWB manufacturers. This same action has been done by the Iowa Attorney General who sent enforcement letters in August 2009 to 21 OWB manufacturers with the following warning:
“Our primary concerns relate to the ability of Iowa consumers to lawfully use your company’s outdoor wood boiler products. As we understand it, the cost to a consumer of an outdoor wood boiler, on average, is in the range of $10,000 with costs of up to $50,000 for heavier users. Therefore, the consumer’s ability to use the product lawfully is a material fact that may not be misrepresented to consumers or concealed from them pursuant to the Iowa Consumer Fraud Act, Iowa Code section 714.16. The Consumer Fraud Act is Iowa’s civil consumer fraud law and is enforced by this office. In addition, as of July 1, 2009, Iowa consumers now also have private remedies for consumer fraud pursuant to a new law, House File 712.” 2
In addition to Iowa, four states have already determined that OWBs cannot be legally operated under existing law. Washington banned the use and sale of OWBs in 1997, Colorado, Maryland and New Jersey have all issued enforcement notices that OWBs cannot be legally operated under existing law. 3
It is the responsibility of the OWB manufacturers to produce and sell products that can be legally operated. They are obligated to provide those findings of fact to DEM. DEM has ample information from federal sources and their own staff on the emission levels from existing and new Phase II Qualified OWBs to determine compliance.
It is the responsibility of DEM to ensure that any emission source complies with state air rules and National Ambient Air Quality Standards (NAAQS) for fine particulates and other air toxins. It is the responsibility of DEM to enforce existing law and issue violation notices to any sources that exceed emission limits.
Rhode Island’s existing laws protect all residents from breathing unhealthy air. The laws ensure that no devices are sold to consumers that violate air rules and can’t be legally operated. By enforcing existing law, rather than exempting OWBs from existing laws, you protect the consumer and the ambient air for everyone in Rhode Island. Also, air knows no boundaries, so Rhode Island’s NAAQS exceedences affect your neighboring states air quality standards as well.
Don’t allow any device to be exempt from complying with existing air rules. Protect Rhode Island consumer’s from defective devices that violate air rules. Protect Rhode Island’s air to ensure that your state does not add to nonattainment areas that create public health hazards, prevent business expansion, and increase taxes to fix or pay for noncompliance penalties.
Ensure that consumers have access to solid-fuel burning devices that can be legally operated in the state of Rhode Island. Don’t avoid your statutory responsibility to uphold existing law by exempting OWBs.
Thank you for the opportunity to comment.
1. DEM Air Rules http://www.dem.ri.gov/pubs/regs/
2. Iowa Attorney General, William Brauch, Consumer Protection Division, August 29, 2009.
3. State OWB enforcement notices:
c. New Jersey: http://www.nj.gov/dep/enforcement/advisories/2008-05.pdf