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Bar News - September 20, 2017

Environmental, Telecomm, Utilities & Energy Law: Outdoor Wood-Fired Boilers: Health Risks and New Legislation


One in 12 New Hampshire households relies on wood as a primary heating fuel, while other households use wood as a supplementary heating source. Wood is a renewable resource, unlike fossil fuels such as oil, coal, and gas. In fact, if firewood is harvested in a sustainable way, woodlots can provide an abundant source of fuel for years to come.

Unfortunately, there are downsides to wood combustion. Wood smoke inhalation is hazardous to health, and the smoke can negatively affect local and regional air quality. During this past legislative session, New Hampshire enacted HB 336 to address one type of wood burning device that can have an outsized effect on air quality: Outdoor Wood Boilers (OWBs), also known as Outdoor Hydronic Heaters.

HB 336 builds on and updates a 2008 law, codified at NH RSA Ch. 125-R. The 2008 law (Ch. 362) established setbacks and stack heights for two different classes of OWBs. In addition, the 2008 law required a two-step phase out of the sale of OWBs that did not meet emission standards. RSA 125-R:2, I, and II (2008) set a particulate standard 0.6 pounds per million Btu for OWBs sold after 2009 and a stricter standard of 0.32 pounds per million Btu after 2010. Notably, the Legislature left open the possibility for municipalities to further limit the use of OWBs through existing local public health and zoning statutes, so long as the municipality did not “establish quantifiable emission limits, require testing, monitoring, or certification, or specify the types of fuels used [in the OWB].”

New Definition of ‘Certified’

HB 336 leaves most of the existing language of RSA 125-R intact, but makes several important changes. First, it establishes a new definition for “Certified outdoor wood-fired hydronic heater.” (emphasis added). Certified units are defined as residential units that meet EPA standards codified at 40 CFR part 60, subpart QQQQ, and commercial units which are “high-efficiency, low-emission” and “qualified by the New York State Energy Research and Development Authority” (NYSERDA).

Federal standards for OWBs (as well as for many other types of residential wood burning appliances) were promulgated in 2015, and set Jan. 1, 2016, as the final date that new, non-certified OWBs could be legally sold at retail. More information on the federal regulations can be found at EPA’s website by searching for “Final New Source Performance Standards for Residential Wood Heaters.”

Because the federal regulations apply only to OWBs used for residential purposes, HB 336 includes a separate provision that effectively limits commercial application of OWBs to those that are “qualified” by the NYSERDA as high efficiency and low emitting. A list of qualifying cordwood boilers is available on NYSERDA’s website, under “Renewable Heat NY: Advanced Cordwood Boilers.”

Uncertified OWB Sales Banned

The second important change to RSA Ch. 125-R is the complete ban on the purchase, sale, distribution or installation of any OWB that is not “certified.” This ban took effect July 1, 2017. This effectively eliminates the market for used, high-emitting, inefficient OWBs. Please note that all OWBs that are currently in use, and were installed legally, can continue to be used on site (Laws of 2017, Ch. 60:2, 3).

Finally, HB 336 makes explicit that OWBs that exceed the permitting threshold of 2 million BTU/HR design gross heat input, are subject to normal NHDES air permitting procedures pursuant to RSA 125-C:11.

Wood Smoke Health Risks

Wood smoke contains particulate matter, carbon monoxide, and other organic compounds, such as formaldehyde, benzene, and aromatic hydrocarbons.

Researchers have been increasingly focused on the health impacts of exposure to the exceedingly small particles that are emitted during combustion. These particles, two and a half microns or less in diameter, are referred to as PM 2.5. Academic studies on the impacts of inhalation of PM 2.5 have shown a robust correlation between higher levels of PM 2.5 and negative health impacts over both the short and long term.

According to EPA’s most recent report, “Our Nation’s Air” (2017), exposures to PM2.5 “can cause harmful effects on the cardiovascular system, including heart attacks and strokes. These effects can result in emergency department visits, hospitalizations and, in some cases, premature death.” The report further notes that “PM exposures are also linked to harmful respiratory effects, including asthma attacks.” Recent studies (available in Environmental Health Perspectives and Environment International) have even linked higher levels of particle pollution with an increase in pre-term births.

Those at greatest health risk from wood smoke include infants, children, pregnant women, the elderly, and those suffering from allergies, asthma, bronchitis, emphysema, pneumonia, or any other heart or lung disease.

Compliance Assistance and Enforcement

The New Hampshire Department of Environmental Services (NHDES) is responsible for ensuring compliance with RSA 125-R and HB 336. The Air Resources Division at NHDES has begun an educational campaign aimed at increasing awareness of the new provisions in the law. It is important to note that violations of HB 336 and RSA 125-R could result in fines of up to $250 and an order to remove any illegally installed OWBs.

For more information, contact the NHDES Air Resources Division at (603) 271-5629 or visit the NHDES website.

Evan Mulholland

Evan Mulholland is the Compliance Bureau administrator with the Air Resources Division of the NH Department Environmental Services. He is also an adjunct professor at UNH School of Law, and previously practiced environmental law at the NH Attorney General’s Office.

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