2010 April 23: NY: Regulatory Flexibility Analysis for Small Businesses and Local Governments 6 NYCRR 247, Outdoor Wood Boilers

2010 April 23: NY: Regulatory Flexibility Analysis for Small Businesses and Local Governments 6 NYCRR 247, Outdoor Wood Boilers

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 to establish stack height and operational requirements, such as specifying which fuels may or may not be used, that will apply to all OWBs. Particulate emission standards 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.

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 peak of the highest roof structure within 150 feet of the new OWB;

e. height of the permanent stack for the OWB; and

f. distance from the OWB to the nearest property boundary line.

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 OWBs must be equipped with a permanent stack extending 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 section. A typical cost for extending an OWB stack is expected to be $600 but would be higher if a stack needs to be greater 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 states2 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 December 2, 2009, there are 10 models 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 http://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 The NESCAUM member states are New Jersey, New York, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire and Maine.

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