§ 584. Inefficient outdoor wood-fired boiler change-out program; retirement

(a) At the earliest feasible date, the Secretary shall create and put into effect a change-out program within the Air Pollution Control Division of the Department of Environmental Conservation to purchase the retirement of inefficient, high emission outdoor wood-fired boilers (OWB) that will be replaced with OWBs or other heating appliances with substantially lower emissions and higher fuel efficiency.

(b) The Secretary shall fund this program using funds available to the State of Vermont for environmental mitigation projects under the consent decree approved on or about October 9, 2007, in the case of United States, et al. v. American Elec. Power Service Corp., et al., Civil Actions No. C2-99-1182, C2-99-1250, C2-04-1098, C2-05-360 (the AEP consent decree). The Secretary may add to this funding such additional monies as may be appropriated to the program authorized under this section or otherwise may be available by grant, contribution, or donation.

(c) The Secretary shall take all steps necessary to secure use of the funds from the AEP consent decree in the manner described in subsection (a) of this section.

(d)(1) To be eligible for the program under this section, an OWB shall be one that is not certified under the air pollution control regulations as meeting either the Phase I emission limit for particulate matter of 0.44 pounds per million British thermal units (BTUs) of heat input or the Phase II emission limit for particulate matter of 0.32 pounds per million BTUs of heat output.

(2) The Secretary may develop program eligibility criteria that are in addition to the criteria of subdivision (1) of this subsection. Such additional criteria may allow an OWB to be eligible for the program under this section even if the OWB does not meet the requirements of subdivision (1) of this subsection. In developing these additional criteria, the Secretary shall consult with affected persons and entities such as the American Lung Association.

(e) An eligible OWB that is accepted into the change-out program under this section shall be:

(1) replaced with an OWB that is certified under the air pollution control regulations as a Phase II OWB with a particulate matter emission rate of no more than 0.32 pounds per million BTUs of heat output or another heating appliance that the Secretary determines has an equivalent or more stringent emission rate; and

(2) retired within a specified period not to exceed six months after acceptance into the program.

(f) In implementing the program required by this section, the Secretary:

(1) Shall give priority to replacing eligible OWBs that have resulted in complaints regarding emissions, including particulate matter or smoke, that the Agency has determined are valid, and have the highest emission rates, cause nuisance, or are within 200 feet of a residence, school, or health care facility.

(2) May allow replacement of an eligible OWB that is less than the required setback distance from a residence, school, or health care facility that is neither served by the OWB nor owned by the owner or lessee of the OWB with an OWB or heating appliance that is also less than the required setback distance from a residence, school, or health care facility, unless such location of the replacement OWB or heating appliance will cause a nuisance or will not comply with all applicable local ordinances and bylaws. For the purposes of this subdivision (2), “required setback distance” means the setback distance applicable to the OWB that is required by the air pollution control regulations.

(3) May require that an eligible OWB be replaced with a heating appliance that is not an OWB if, based on the Secretary’s consideration of area topography, air flows, site conditions, and other relevant factors, the Secretary determines that the replacement OWB would cause nuisance.

(4) To the extent practical, should provide over time for decreasing emission rates and increasing fuel efficiency requirements for replacement OWBs under this program as new technology for boilers becomes commercially available.

(g) Any OWB in the State that is not certified under the air pollution control regulations to meet the Phase I, Phase II, or a more stringent emission limit shall be retired on or before December 31, 2012, if the OWB is located within 200 feet of a residence, school, or health care facility that is neither served by the OWB nor owned by the owner or lessee of the OWB or has resulted or results in a complaint regarding emissions, including particulate matter or smoke, that the Agency has determined is valid.

(h) For the purpose of this section:

(1) “Outdoor wood-fired boiler” or “OWB” means a fuel-burning device designed to burn primarily wood that the manufacturer specifies should or may be installed outdoors or in structures not normally occupied by humans, such as attached or detached garages or sheds, and that heats spaces or water by the distribution through pipes of a fluid heated in the device, typically water or a mixture of water and antifreeze. In addition, this term also means any wood-fired boiler that is actually installed outdoors or in structures not normally occupied by humans, such as attached or detached garages or sheds, regardless of whether such use has been specified by the manufacturer.

(2) “Retire” means to remove an OWB permanently from service, disassemble it into its component parts, and either recycle those parts or dispose of them in accordance with applicable law.

(i) For the purpose of determinations under subdivisions (f)(1) (priority for change-out), (2) (installation of replacement OWB closer than the setback distance), and (3) (non-OWB replacement) of this section, “nuisance” means interference with the ordinary use or enjoyment of property caused by particulate matter, smoke, or other emissions of an OWB that a reasonable person would find disturbing, annoying, or physically uncomfortable. Precedence in time and balancing of harm shall be irrelevant to such determinations. This section shall not affect the burden or elements of proof with respect to a claim of nuisance caused by an OWB brought in a civil court under common law.

(j) The Secretary may adopt rules to implement this section. (Added 2009, No. 94 (Adj. Sess.), § 2, eff. May 7, 2010; amended 2015, No. 75 (Adj. Sess.), § 2.)