Why this is Important

This proposed rulemaking implements Senate Bill 102, a 2009 legislative measure designed to protect Oregonians from wood smoke by accelerating the turnover of older uncertified woodstoves.

Department Recommendation and EQC Motion

DEQ recommends that the EQC adopt the proposed revisions to Oregon Administrative Rules, Chapter 340, divisions 12 and 262 as presented in Attachment A. DEQ also recommends that the commission amend the Oregon Clean Air Act implementation plan (OAR 340-200-0040) as presented in Attachment A to include these revised rules as a revision to the Oregon Clean Air Act Implementation Plan, and that the commission authorize DEQ to submit these revisions to the U.S. Environmental Protection Agency for approval as revisions to Oregon’s Clean Air Act Implementation Plan.

Background and Need for Rulemaking

Concerns about wood smoke

Wintertime residential wood burning is a significant source of air pollution, including fine particulate and air toxics. Smoke from woodstoves and other wood heating devices can be a primary reason that communities such as Klamath Falls and Oakridge do not meet federal health standards for fine particulate matter. Residential wood burning is also a significant source of air pollution in a dozen other communities that are at risk from elevated fine particulate levels. This rulemaking is a long-term strategy to improve air quality by accelerating the turnover of older, uncertified wood burning devices.

Senate Bill 102 requirements

Senate Bill 102 requires the commission to establish a program requiring the removal and destruction of noncertified woodstoves upon home sale. It also authorizes the commission to set emission standards for a broader range of home wood-heating devices, including outdoor wood-fired boilers and other wood burning devices that are currently exempt from the U.S. Environmental Protection Agency’s woodstove emissions certification requirements. Senate Bill 102 also makes it clear that materials, such as garbage or other prohibited materials, may not be burned in a woodstove or fireplace.

Regulated devices under DEQ’s new woodstove rules

In 1984, Oregon was the first state in the nation to require emissions certification of new wood burning stoves. EPA quickly followed with national emission standards in 1988, but has not revised the 20-year-old woodstove standard since then. At that time, only a handful of woodstove models were exempt from emission standards. Today, EPA’s exemption list has over 260 devices because EPA’s current definition of “woodstove” is too narrow. This allows hundreds of models of uncertified residential wood burning devices, such as outdoor residential wood boilers, to be sold because they are technically exempt by EPA. The Heat Smart rules will expand the definition of “woodstove” to “solid fuel burning device,” preventing these exempt devices from being sold in Oregon unless they meet EPA certification standards or any equivalent standard approved by the commission.

Effect of Rule

Uncertified stove removal upon home sale – notification and destruction

Pursuant to statute, the stove removal requirements went into effect starting Aug. 1, 2010. DEQ’s proposed rules establish procedures to streamline implementation of these requirements and verify that uncertified stoves are removed and destroyed upon home sale. For example, the rules require homeowners to notify DEQ and obtain a receipt verifying the stove was destroyed. DEQ proposed requiring a receipt as proof of destruction to ensure that uncertified solid fuel burning devices are not re-sold or illegally installed in another home. ¹ These receipts can be issued by any metal recycler, landfill operator, scrap metal dealer, hearth products store, or anyone willing to take responsibility for ensuring the stove is destroyed to the extent that it cannot be used as a heating device again. Many uncertified stoves have already been removed upon home sale since the statute became effective in August. DEQ has provided guidance to Realtors® and homeowners who have been providing proof of destruction and notification to DEQ. This rulemaking fully implements the stove removal provisions of SB 102.

Wood burning devices subject to emission standards

The proposed rules will incorporate a broader range of home wood-heating devices, including outdoor wood-fired boilers and other EPA-exempt wood burning devices, and subject them to the federal emission standards for woodstoves. These devices will no longer be able to be sold in Oregon unless they demonstrate compliance with federal emission standards.

Effect on small business

Businesses such as local hearth retailers that sell these uncertified (EPA-exempt) devices will incur reduced sales because they cannot sell these devices. While the loss of these sales will have a negative impact, overall the proposed rules are not expected to have a significant detrimental effect on their businesses because they will be selling different appliances, not necessarily fewer. The majority of small retail businesses, such as hearth products retailers, sell certified stoves and other heating devices such as pellet or natural gas stoves that would not be affected by DEQ’s Heat Smart regulations. These devices make up the bulk of their retail sales, which could benefit from increased demand due to the requirement to remove uncertified stoves upon home sale.

Outdoor wood boiler dealers

These rules will have an adverse effect on small businesses that sell outdoor wood boilers. During the comment period DEQ heard from four local wood boiler retailers, a wood boiler manufacturer, and the hearth products association about how DEQ’s rules would prohibit the sale of these devices in Oregon. DEQ understands those concerns; however, DEQ has serious concerns about the potential for excessive pollution from these devices and the subsequent health effects on local residents. With large fireboxes, smoldering fires, and short smokestacks, outdoor wood boilers can create heavy smoke and release it close to the ground, where it lingers and exposes the community to nuisance conditions and potential health risks. In particular, there are many areas in Oregon where residential wood burning can cause a community to exceed federal air quality health standards for particulate matter. These devices have become a problem in other areas of the U.S., and many cities have either banned outdoor wood boilers directly, or states like Washington have adopted very stringent emission standards that effectively do not allow the sale of these devices in that state.

DEQ has spent the past twenty years investing in various woodstove changeouts and education campaigns across Oregon to remove older, polluting uncertified woodstoves. Allowing uncertified outdoor wood boilers in Oregon could undermine past efforts to reduce particulate pollution. Once installed, these devices could emit high levels of pollution for several decades. With so many communities near or close to violating public health standards for fine particulate, these devices must be adequately regulated to protect public health. DEQ could revisit this issue in the future if new outdoor wood boiler technologies are developed that significantly reduce emissions from these devices to protect public health.

Improved safety in the home

Removing older uncertified stoves from service upon home sale can also improve home safety. Based on past experience, DEQ believes that many of the old, uncertified stoves were improperly installed or not inspected to ensure they met existing building codes, so the use of older, uncertified stoves which produce more wood smoke leads to creosote buildup, posing a potential fire hazard. Stove removal upon home sale will lead to new, safety inspected installations if the old stove is replaced with a new heating system.

Implementation

DEQ intends to make compliance as easy as possible on everyone affected by the rules through technical assistance, outreach, and a user-friendly reporting process.

DEQ has been working with Realtors®, hearth dealers, chimney sweeps, and contractors for the past nine months to help inform them of the requirements by conducting trainings and providing educational materials so that they can help inform their clients of the law. Realtors® have been very effective in getting the word out about the requirements. DEQ has also established a web-based reporting tool to make it easier for homeowners to notify DEQ that they have removed and destroyed stoves. DEQ will continue to work closely with Realtors® to help inform homeowners of the requirements.

Burning prohibited materials indoors

The proposed rules also establish penalties for the burning of prohibited materials indoors, as required under ORS 468A.467. The rules make the penalties consistent with existing fines associated with outdoor burning of prohibited materials.

Commission Authority

The commission has authority to take this action under ORS 468 and 468A.

Stakeholder Involvement

2009 Legislation

DEQ worked with stakeholders on the 2009 legislation to authorize the commission to set more stringent emission standards for a broader range of home heating devices and to require the removal of uncertified woodstoves at the time of home sale. Stakeholders included representatives from the Oregon Hearth Patio and Barbecue Association, the Oregon Association of Realtors, and the League of Oregon Cities.

Rule development

DEQ advisory committee

DEQ convened an advisory committee in April 2010 to discuss a number of practical issues regarding the implementation of the woodstove removal requirement. The committee included a local government representative, real estate brokers, woodstove dealers, contractors and a metal recycler. Four of the committee members were from Klamath Falls and Medford, areas that already have similar ordinances for woodstove removal upon home sale. These committee members provided insight on the successes and challenges of their programs. DEQ reconvened the committee in June 2010 to discuss the fiscal and economic impacts of the rule, specifically its impacts on small businesses. A list of committee members is provided in Attachment B.

Public hearings

DEQ published information on its website and used its email subscription service to notify Realtors®, hearth products dealers, and Oregon residents about the advisory committee and proposed rulemaking. DEQ contacted over 2,500 people who subscribed to receive updates on woodstove issues. DEQ also sent out targeted e-mails to real estate associations and boards across the state and contacted the Oregon Construction Contracting Board to include information in its monthly newsletter that is distributed to all licensed contractors. DEQ presented information about the statutory requirements and proposed rules to five different Realtor® groups and the Oregon Hearth Patio and Barbecue Association. DEQ also held five public hearings in cities throughout the state.

Cross-program coordination

DEQ coordinated internally within the air and solid waste programs to ensure the metal recyclers, landfill operators, and other potential “disposal” facilities were aware of the proposed rules and their potential impact. DEQ created a simple and easy process for a homeowner to dispose of an uncertified stove without adding any implementation burdens to any disposal facility.

Public Comment

A public comment period from Sept. 21, 2010 through Oct. 29, 2010 included public hearings in Medford, Eugene, Portland, Burns, and Pendleton. Results of public input are provided in Attachment C.

In response to comments received during the public comment period, DEQ is proposing a few minor changes. Most of these changes help clarify the intent of the rule, such as further defining what is meant by a “used device,” establishing a timeframe for how long a woodstove curtailment exemption lasts, and specifying the address information for a homeowner removing and destroying a stove. DEQ did make one substantive change regarding certification and testing for outdoor wood boilers, described in more detail under “Key Issues.”

In order to clarify the rules, DEQ proposed to repeal and then readopt entire sections of the current rules. Though this might make the proposed revisions appear more extensive than they are, the proposed revisions essentially renumber the current rules, as well as make changes required by and related to SB 102. Also, the public comments on the proposed rules did not raise concerns that the public was confused about the scope of revisions in the proposed rules.

Key Issues

Outdoor wood boilers

In the proposed rules, DEQ is requiring that all solid fuel burning devices, including EPA-exempt heating devices such as outdoor wood boilers, meet federal testing and emission standards for woodstoves. This is based on DEQ’s concerns about emissions from the EPA-exempt devices that are currently not required to meet any certification standard.

Eight commenters, including retailers, the Hearth Patio and Barbecue Association, and an association that represents wood boiler manufacturers, indicated DEQ should regulate outdoor wood boilers under EPA’s voluntary Phase 2 certification program for outdoor wood boilers. EPA’s voluntary program was set up to achieve emissions reductions from outdoor wood boilers in the absence of a federal rule. The voluntary certification program provides testing criteria and emissions requirements that outdoor wood boilers must meet in order to qualify for the program. Currently, any outdoor wood boiler qualifying for the program must meet Phase 2 requirements, under which devices must be at least 90 percent cleaner than older, unqualified outdoor wood boilers.

While EPA has established a voluntary outdoor wood boiler certification program, even the cleanest outdoor wood boilers under this program pollute too much to meet Oregon’s air quality needs. According to the U.S. EPA, a Phase 2 outdoor wood boiler can emit 1.5 to 3 times more particle pollution than a certified woodstove. DEQ also has concerns about several aspects of EPA’s current voluntary test method for outdoor wood boilers. However, based on the public comment received, DEQ has revised the proposed rules to allow for DEQ approval of an emissions test methodology that can be used by a manufacturer to demonstrate that an outdoor wood boiler model meets standards equivalent to EPA’s woodstove emission standard.² In the future, this could allow for Oregon sales of low emission outdoor wood-fired boilers.

DEQ also recognizes the substantial costs incurred by any homeowner who recently purchased an EPA-qualified Phase 1 or 2 outdoor wood boiler. In order to protect consumers who made an investment in these devices, DEQ has modified the rules to not require already installed EPA-qualified Phase 1 or 2 outdoor wood boilers from being removed at time of home sale. Homeowners with an EPA-qualified outdoor wood boiler must notify DEQ of this device to be exempt from the removal requirements.

Next Steps

Outreach to Homeowners, Realtors®, and Hearth Retailers

DEQ has been working closely with real estate associations, contractors, hearth products dealers, and chimney sweeps to help inform homeowners about the uncertified woodstove removal requirements. DEQ conducted five training sessions with Realtors®, developed a presentation that was disseminated to realtor offices throughout the state, and provided handouts and fact sheets for Realtors® to provide to homeowners. DEQ developed a web page for homeowners to download any information relative to the program and created an on-line reporting form to make it easier for homeowners to notify DEQ of the woodstove removal. DEQ also partnered with the Oregon Hearth Patio and Barbecue Association to have its members provide trainings and outreach to Realtors® all over the state. DEQ is continuing to provide outreach materials and information for homeowners to keep them informed of the removal requirements.

DEQ will contact hearth retailers and hardware stores that they cannot sell EPA exempt wood burning devices unless they are certified. DEQ will also contact outdoor wood boiler manufacturers and dealers to notify their clients about registering any EPA-qualified Phase 1 or 2 devices with DEQ, so that the homeowner will not be required to remove the device upon home sale.

Enforcement

Compliance with the woodstove removal rules will occur primarily through education and awareness, which is similar to how DEQ currently enforces the sale of uncertified woodstoves. Real estate agents play a crucial role in education and outreach. While the real estate agents will not be asked to enforce these regulations, they will provide information to their clients about the removal and destruction requirements. DEQ is also monitoring websites and other classified ads to stop any illegal sales of an uncertified stove. In addition, many insurance companies are now requiring the new homeowner to have proof of notification from DEQ that a stove has been removed and destroyed before they will insure the home.

State Implementation Plan

If approved, DEQ will submit the revised rules to EPA as a revision to the Oregon

Clean Air Act Implementation Plan.

Attachments

A.  Proposed Rule Revisions

B.  Summary of Public Comments and Agency Responses

C.  Presiding Officer’s Report on Public Hearings

D.  Relationship to Federal Requirements Questions

E.  Statement of Need and Fiscal and Economic Impact

F.  Land Use Evaluation Statement

G.  Advisory Committee Membership

Available Upon Request

1.  Senate Bill 102 as adopted June 18, 2009

2.  Legal Notice of Hearing

3.  Cover Memorandum from Public Notice

4.  Written Comment Received

5.  Rule Implementation Plan