RULES AND REGULATIONS

Title 25—ENVIRONMENTAL

PROTECTION

ENVIRONMENTAL QUALITY BOARD

[ 25 PA. CODE CHS. 121 AND 123 ]

Outdoor Wood-Fired Boilers

The Environmental Quality Board (Board) amends

Chapters 121 and 123 (relating to general provisions; and

standards for contaminants) to read as set forth in Annex

A.

This order is adopted by the Board at its meeting of

July 13, 2010.

A. Effective Date

This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.

These amendments will be submitted to the United

States Environmental Protection Agency (EPA) as a revision to the Pennsylvania State Implementation Plan upon

promulgation of this final-form rulemaking.

B. Contact Persons

For further information, contact Ron Gray, Chief, Division of Compliance and Enforcement, Bureau of Air

Quality, 12th Floor, Rachel Carson State Office Building,

P. O. Box 8468, Harrisburg, PA 17105-8468, (717) 772-

3369; or Robert ‘‘Bo’’ Reiley, Assistant Counsel, Bureau of

Regulatory Counsel, 9th Floor, Rachel Carson State Office

Building, P. O. Box 8464, Harrisburg, PA 17105-8464,

(717) 787-7060. Persons with a disability may use the

Pennsylvania AT&T Relay Service, (800) 654-5984 (TDD

users) or (800) 654-5988 (voice users).

C. Statutory Authority

This final-form rulemaking is adopted under the authority of section 5(a)(1) of the Air Pollution Control Act

(APCA) (35 P. S. § 4005(a)(1)), which grants to the Board

the authority to adopt regulations for the prevention,

control, reduction and abatement of air pollution.

D. Background and Summary

On July 18, 1997, the EPA amended the National

Ambient Air Quality Standard (NAAQS) for particulate

matter (PM) to add a new standard for fine particles,

using fine particulates equal to and less than 2.5 micrometers in diameter (PM2.5) as the indicator. The EPA

set the health-based (primary) and welfare-based (secondary) PM2.5 annual standard at a level of 15 micrograms

per cubic meter (μg/m3

) and the 24-hour standard at a

level of 65 μg/m3

. See 62 FR 38652 (July 18, 1997). The

health-based primary standard is designed to protect

human health from elevated levels of PM2.5, which have

been linked to premature mortality and other important

health effects. The secondary standard is designed to

protect against major environmental effects of PM2.5

such as visibility impairment, soiling and materials damage. The following counties in this Commonwealth have

been designated nonattainment for the 1997 fine particulate NAAQS: Allegheny (Liberty-Clairton), Allegheny (remainder), Armstrong, Beaver, Berks, Bucks, Butler,

Cambria, Chester, Cumberland, Dauphin, Delaware,

Greene, Indiana, Lancaster, Lawrence, Lebanon, Montgomery, Philadelphia, Washington, Westmoreland and

York.

Subsequently, on October 17, 2006, the EPA revised the

primary and secondary 24-hour NAAQS for PM2.5 to 35

μg/m3 from 65 μg/m3

. See 71 FR 61236 (October 17,

2006). On December 18, 2008, all or portions of the

following counties in this Commonwealth were designated

by the EPA as nonattainment for the 2006 24-hour fine

particulate NAAQS: Allegheny (Liberty-Clairton), Allegheny (remainder), Armstrong (partial), Beaver, Bucks,

Butler, Cambria, Chester, Cumberland, Dauphin, Delaware, Greene (partial), Indiana (partial), Lancaster,

Lawrence (partial), Lebanon, Lehigh, Montgomery, Northampton, Philadelphia, Washington, Westmoreland and

York.

The health effects associated with exposure to PM2.5

are significant. Epidemiological studies have shown a

significant correlation between elevated PM2.5 levels and

premature mortality. Other important health effects associated with PM2.5 exposure include aggravation of respiratory and cardiovascular disease (as indicated by increased hospital admissions, emergency room visits,

absences from school or work and restricted activity

days), lung disease, decreased lung function, asthma

attacks and certain cardiovascular problems. Individuals

particularly sensitive to PM2.5 exposure include older

adults, people with heart and lung disease and children.

A significant and growing source of PM2.5 emissions in

this Commonwealth is from outdoor wood-fired boilers

(OWBs). OWBs, also referred to as outdoor wood-fired

furnaces, outdoor wood-burning appliances or outdoor

hydronic heaters, are free-standing fuel-burning devices

designed: (1) to burn clean wood or other approved solid

fuels; (2) specifically for outdoor installation or installation in structures not normally intended for habitation by

humans or domestic animals, such as garages; and (3) to

heat building space or water by means of distribution,

typically through pipes, of a fluid heated in the device,

typically water or a water and antifreeze mixture. OWBs

are being sold to heat homes and buildings and to

produce domestic hot water.

The emissions, health effects and the nuisance factor

created by the use of OWBs are a major concern to the

Department of Environmental Protection (Department).

The Northeast States for Coordinated Air Use Management has conducted stack tests on OWBs. Based on the

test results, the average PM2.5 emissions from 1 OWB

are equivalent to the emissions from 205 oil furnaces or

as many as 8,000 natural gas furnaces. Cumulatively, the

smallest OWB has the potential to emit almost 1 1/2 tons

of PM every year. Of the estimated 155,000 OWBs sold

Nationwide, 95% have been sold in 19 states, of which

this Commonwealth is one.

Unlike indoor wood stoves that are regulated by the

EPA, Federal standards do not exist for OWBs and the

majority of them are not equipped with pollution controls.

The EPA initiated a voluntary program that encourages

manufacturers of OWBs to improve air quality through

developing and distributing cleaner-burning, more efficient OWBs. Phase 1 of the program was in place from

January 2007 through October 15, 2008. To qualify for

Phase 1, manufacturers were required to develop an

OWB model that was 70% cleaner-burning than unqualified models by meeting the EPA air emission standard of

0.6 pound PM per million Btu heat input as tested by an

independent accredited laboratory. Phase 1 Partnership

Agreements ended when the Phase 2 Partnership Agree5571

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ments were initiated on October 16, 2008. To qualify for

Phase 2, manufacturers must develop an OWB model

that is 90% cleaner-burning than preprogram, unqualified

OWBs and meet the EPA air emissions standard of 0.32

pound PM per million Btu heat output as tested by an

independent accredited laboratory. The emission standard

established in the final-form rulemaking is the Phase 2

emission standard described in the EPA voluntary program.

The final-form rulemaking would help assure that the

citizens of this Commonwealth will benefit from reduced

emissions of PM2.5 from OWBs. Attaining and maintaining levels of PM2.5 below the health-based NAAQS is

important to reduce premature mortality and other

health effects associated with PM2.5 exposure. There are

many citizen complaints regarding the operation of

OWBs. This final-form rulemaking reduces the problems

associated with the operation of OWBs, including smoke,

odors and burning prohibited fuels including garbage,

tires, hazardous waste and the like. Reductions in ambient levels of PM2.5 would promote improved human and

animal health and welfare, improved visibility, decreased

soiling and materials damage and decreased damage to

plants and trees.

A review of the Department’s complaint tracking system reveals a significant amount of activity regarding

OWB complaints in this Commonwealth. Since 2005, the

Department has logged 200 complaints. In the Northeast

Regional Office, complaints were received from 8 of 11

counties; 11 of 14 counties in the Northcentral Regional

Office; 10 of 12 counties in the Northwest Regional Office;

2 of 4 counties in the Southeast Regional Office; 13 of 15

counties in the Southcentral Regional Office; and 9 of 9

counties in the Southwest Regional Office. Complaints are

being received across this Commonwealth, but most frequently from the northern tier counties.

While there are no Federal limits for the OWBs that

would be subject to regulation under this final-form

rulemaking, section 4.2 of the APCA (35 P. S. § 4004.2)

authorizes the Board to adopt regulations more stringent

than Federal requirements when the control measures

are reasonably necessary to achieve and maintain the

ambient air quality standards. These measures are reasonably necessary to attain and maintain the primary

and secondary 24-hour NAAQS for PM2.5 in this Commonwealth.

E. Summary of Comments and Responses

The Board received over 2,000 comments regarding the

proposed OWB regulations during the public hearings

and public comment period. Of those, 538 were in full

support of the proposed rulemaking, 723 were in support

contingent upon revisions being made to the proposed

rulemaking and 745 were opposed to the proposed rulemaking.

Several commentators noted that PM2.5 pollution from

OWBs is associated with heart disease, lung disease and

premature deaths and have severe effects on neighbors’

quality of life. The health effects associated with exposure

to PM2.5 are significant. Epidemiological studies have

shown a significant correlation between elevated PM2.5

levels and premature mortality. The final-form rulemaking helps assure that the citizens of this Commonwealth will benefit from reduced emissions of PM2.5 and

air toxics from OWBs. Attaining and maintaining levels of

PM2.5 below the health-based NAAQS is important to

reduce premature mortality and other health effects

associated with PM2.5 exposure.

Other commentators are concerned about the odors and

pollutants caused by burning garbage and trash in

OWBs. The final-form rulemaking, in § 123.14(f) and (g)

(relating to outdoor wood-fired boilers), prohibits the

burning of trash or garbage in new or existing OWBs.

Several commentators suggested a ban on the operation

of OWBs. The intention is not to ban the use of OWBs,

but to control some aspects of the operation of OWBs to

reduce future health impacts and air emissions and

nuisances. The Board recognizes the value of heating

with OWBs, including providing a lower cost fuel option

which is particularly important in the present economy,

use of a renewable and plentiful fuel and reduction of the

country’s dependency on fossil fuel.

Many commentators complained about the smoke odors.

The Board recognizes that ground-level smoke is one of

the problems with the operation of conventional model

OWBs. The final-form rulemaking should provide some

relief from the impact of smoke odors due to the Phase 2

emission standards.

Several commentators complained about having to deal

with the smoke and odors year-round since the neighboring OWB is used throughout the year for hot water or to

heat swimming pools. The Board appreciates these concerns, but decided not to impose a seasonal prohibition.

The Board believes that a better approach is to educate

owners of OWBs on more efficient operation of the units

to reduce complaints.

A few commentators stated that OWB operation can

only be adequately controlled at the State level. The

Board believes that the final-form rulemaking will consistently regulate OWBs across this Commonwealth, instead

of the piecemeal, inconsistent way OWBs are currently

regulated. This would be particularly appropriate for

establishing emission standards for new OWBs installed

in this Commonwealth.

A few commentators stated that using coal as a fuel

creates problems. The regulation is targeted for OWBs.

Coal-fired units are not covered by the EPA Phase 2

certification program and, therefore, are beyond the scope

of this regulation.

A commentator stated that penalties should be included

in the regulation. The Board does not include penalties in

specific regulations. Penalties for violations of regulations

are calculated by way of penalty assessment policies

developed by the Department. However, the first steps in

dealing with OWB noncompliance would be education and

voluntary compliance by the owner.

Several commentators stated that minimum stack

height requirements should be greater. Based upon the

comments received and further investigation, the Department determined that the proposed stack heights would

be problematic for stack stability and the proper operation of the OWB. The Board has proposed a minimum

stack height of 10 feet for new Phase 2 OWBs; additionally, these stacks shall be installed according to manufacturer’s specifications.

A commentator stated that stringent standards should

be included for commercial units. Currently, the Department routinely addresses commercial units through existing regulations. However, the EPA is developing new

source performance standards requirements that will

regulate the emission rate of the commercial units.

A commentator stated that existing OWB owners and

operators should apply for a permit within 30 days and

comply within 60 days. The Department is prohibited

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from requiring permits for home heating devices at

private residences by section 6.1 of the APCA (35 P. S.

§ 4006.1).

Several commentators had general concerns about stack

height requirements for existing and new OWBs. The

stack height requirements for existing OWBs have been

eliminated in the final-form regulation. The stack height

requirements for new OWBs established in the final-form

regulation provide that new OWBs must have a permanent stack that extends at least 10 feet above the ground

and be installed according to the manufacturer’s specifications.

Some commentators believe opacity requirements for

residential-sized OWBs are unreasonable because opacity

is based on a subjective, visual observation. The opacity

regulation, as defined in § 123.41 (relating to limitations), is an existing Statewide regulation limiting the

visual emissions emanating from stacks. The Department’s field staff is certified annually to determine the

percent opacity from stacks. Opacity is not a subjective

visual observation for these certified individuals. The

opacity regulation would be used when there is a complaint submitted to the Department about the operation

of an OWB. The ability to use an objective visual test to

determine if there is an actual nuisance could be helpful

both to the complainant and the OWB owner.

Several commentators believe that existing OWBs

should be grandfathered. The Board eliminated the stack

height requirements for existing OWBs. Existing units

need to comply with existing laws and the final-form

regulation’s fuel requirements.

Other commentators are concerned about the incremental cost of new Phase 2 units. According to the EPA,

OWBs fueled by wood, pellets and other biomass cost

between $8,000 and $18,000, depending on the size of the

unit. The cleaner Phase 2 units may cost between $9,200

to $20,700, or about 15% more. Because of the changes

made to improve the efficiency of these units and reduce

their emissions, most of these new models are significantly more efficient. The cleaner Phase 2 units use less

wood to produce the same amount of heat, reducing the

cost of wood purchases.

Commentators believe that the regulation of OWBs is a

local issue and disagree with a one-size-fits-all approach.

The Board believes the final-form rulemaking sets Statewide minimum criteria for new Phase 2 units as well as

the basic criteria for cleaner fuel. Local municipalities can

still enact ordinances that are stricter.

One commentator asked whether municipalities would

need to pass their own ordinances referencing this finalform rulemaking before they could require compliance. A

municipality may enact an ordinance that adopts a

Department regulation by reference, but would then

enforce it as its own ordinance. If a municipality does not

have an ordinance that includes the Department’s regulatory requirements, it could not enforce the Department’s

regulation directly. Further, in accordance with section 12

of the APCA (35 P. S. § 4012), local municipalities may

enact ordinances more stringent than the final-form

regulation.

One commentator believes that the proposed regulation

may be considered a government ‘‘taking,’’ placing the

Commonwealth at risk for numerous lawsuits from those

using OWBs. The Board disagrees that the regulation is a

regulatory taking. The final-form regulation merely establishes a number of environmental and public health

requirements that property owners shall abide by if they

install an OWB on their property.

Other commentators believe that a regulatory issue like

OWBs should go through the Legislature and be voted on

by elected officials. The Board believes that it has legal

authority from the General Assembly to enact the regulation. Statutory authority for the Board to enact an OWB

regulation comes from section 5(a)(1) of the APCA, which

grants the Board the authority to adopt rules and

regulations for the prevention, control, reduction and

abatement of air pollution in this Commonwealth.

One commentator suggested the regulation of OWBs on

a Statewide scale is a policy decision of such a substantial

nature that it requires legislative review. Section 5(a)(1)

of the APCA gives the Board the authority to adopt

regulations to prevent, control, reduce and abate air

pollution. The final-form regulation is adopted to prevent,

control, reduce, and abate air pollution. The Department

undertook additional discussions with the legislative

members subsequent to receipt of their comments. The

Department also provided the draft final-form rulemaking

to the legislative members for review.

One commentator wondered why the Board believes

that it is now more appropriate for a State agency to

regulate OWBs when the model ordinance that was

developed by the Department stated that ‘‘it believes that

local municipalities can respond to and resolve issues

more effectively and swiftly than a state agency.’’ The

Board believes that local governments can still respond to

home heating issues. The final-form rulemaking only sets

the Statewide minimum criteria for new Phase 2 units as

well as the basic criteria for cleaner fuel. Local municipalities can still enact ordinances that are stricter.

A commentator pondered the need for this final-form

rulemaking and questioned why enforcement of the existing regulatory and statutory requirements cannot provide

adequate protection of the public health, safety and

welfare. The intent of the final-form regulation is to

ensure that only the cleanest OWB units are sold in this

Commonwealth.

The commentator asked the Board to allow the requirements of the final-form regulation to be phased-in over

time so that the three manufacturers in this Commonwealth will not be negatively affected by the final-form

rulemaking. A sell-through exemption has been established in the final-form regulation. The sell-through exemption specifies that a person may not sell, offer for

sale, distribute or lease a non-Phase 2 OWB in this

Commonwealth unless the OWB was manufactured, distributed, purchased or leased and received in this Commonwealth before May 31, 2011. This exemption shall

remain in effect through May 31, 2011.

The commentator noted that the setback and stack

height provisions in § 123.14(c) and (d), respectively, have

been cited by many commentators as problematic. The

Board made the following changes to those subsections,

renumbered as subsections (d) and (e). For subsection (d),

setback requirements for new Phase 2 OWBs, a person

may not install a Phase 2 OWB in this Commonwealth

unless the boiler is installed a minimum of 50 feet from

the nearest property line. For subsection (e), stack height

requirements for new Phase 2 OWBs, the requirements

are a permanent stack that extends a minimum of 10 feet

above the ground and is installed according to the

manufacturer’s specifications. These changes are in line

with the Hearth, Patio & Barbecue Association’s Outdoor

Hydronic Heater Caucus recommendations.

The commentator urged the Board to include specific

language in the final-form regulation that would exempt

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individuals involved with real estate transactions from

these regulations. The Board added language to the

final-form rulemaking.

The commentator noted that since Phase 2 OWBs are

cleaner burning devices than non-Phase 2 OWBs, what is

the need for the significant setback requirement for them

(150 feet from the nearest property line) in the proposed

regulation. The commentator suggested that the setback

be a function of distance to the nearest residence, not

property line. The setback requirement has been revised

from 150 feet to the nearest property line to 50 feet from

the nearest property line. The Board believes that setbacks should be based on a property line. The use of

property lines will minimize the emission impact from a

new Phase 2 unit.

A few commentators opposed the proposed OWB regulation because it will limit the use of OWBs for agricultural

purposes. The Board appreciates the comments regarding

the use of OWBs for agricultural purposes. Under section

4.1 of the APCA (35 P. S. § 4004.1), the Board does not

have the authority to adopt rules and regulations relating

to air pollution arising from the production of agricultural

commodities, unless the regulations are required by the

Clean Air Act (42 U.S.C.A. §§ 7401—7671q). However, if

the OWB is being used exclusively to heat or provide hot

water, or both, for a residence located on agricultural

property, then the final-form regulation would apply.

Some commentators opposed the proposed OWB regulation because it would hinder or ban the ability to use

wood for home heating. The final-form regulation does not

ban the use of OWBs. Instead, it sets minimum controls

for the use of OWBs to reduce health impacts, air

emissions and nuisances. The Board also recognizes the

value of heating with OWBs, including providing a lower

cost fuel option which is particularly important in the

present economy, use of a renewable and plentiful fuel

and reduction of the country’s dependency on fossil fuel.

The commentator opposed the proposed OWB regulation because it would promote increased use of oil and

natural gas, which results in greater fuel dependency.

The Board agrees that it is important to encourage the

use of renewable fuels, such as wind, solar, geothermal

and wood, and thereby reduce the country’s dependency

on fossil fuels. The OWB regulation does not ban or

hinder the use of OWBs. Instead, the final-form regulation intends to regulate some aspects of the operation of

OWBs to reduce health impacts, air emissions and nuisances.

The commentator opposed the proposed OWB regulation because it is a government intrusion that infringes

on personal freedom. The intent of the proposed regulation is to find a balance between the rights of the OWB

owner and the rights of the neighbors that are affected by

smoke and odors from the OWB operation. The intent of

the proposed OWB regulation is not to ban OWBs, but

rather to set minimum standards for the operation of

OWBs to reduce health impacts, air emissions and nuisances.

A few commentators opposed the proposed OWB regulation because there are already enough Department, Federal, or both, regulations that cover OWBs. The intent of

the final-form regulation is to ensure that only the

cleanest OWB units are sold in this Commonwealth.

A commentator opposed the proposed OWB regulation

because the notification and paperwork requirements are

burdensome for small business distributors. The written

notice and recordkeeping requirements in the proposed

regulation have been eliminated in the final-form regulation.

Several commentators stated that over time OWB

manufacturers will produce more efficient boilers, which

will be phased in as old OWBs are replaced and the

problem will take care of itself. As of August 30, 2010,

there are 19 EPA-qualified Phase 2 OWB models. As more

states adopt regulations and laws that establish emission

requirements, more qualifying models will be developed

and consumers will have more choices.

F. Summary of Final-form Regulation and Changes from

Proposed to Final-Form Rulemaking

Summary of final-form regulation

The final-form amendments add definitions to § 121.1

(relating to definitions) for the following six new terms:

‘‘Btu—British thermal unit,’’ ‘‘clean wood,’’ ‘‘new Phase 2

outdoor wood-fired boiler,’’ ‘‘non-Phase 2 outdoor woodfired boiler,’’ ‘‘outdoor wood-fired boiler’’ and ‘‘Phase 2

outdoor wood-fired boiler.’’

The final-form rulemaking adds § 123.14. In general,

under final-form subsection (a), regarding applicability,

beginning October 2, 2010, the requirements of the

regulation apply to a person, manufacturer, supplier or

distributor who sells, offers for sale, leases or distributes

an OWB for use in this Commonwealth; a person who

installs an OWB in this Commonwealth; and a person

who purchases, receives, leases, owns, uses or operates an

OWB in this Commonwealth.

Final-form subsection (b)(1), regarding exemptions, provides that this section does not apply if the following is

applicable: the OWB is intended for shipment and use

outside of this Commonwealth.

Under final-form subsection (b)(2), subsections (c), (d)

and (e) do not apply to a permanently installed OWB that

was installed prior to October 2, 2010, and is transferred

to a new owner as a result of a real estate transaction.

Under final-form subsection (b)(3), a person may not

sell, offer for sale, distribute or lease a non-Phase 2 OWB

unless it was manufactured, distributed, purchased or

leased and received in this Commonwealth before May

31, 2011. This exemption will remain in effect through

May 31, 2011. A non-Phase 2 OWB installed during the

sell-through period shall meet the following requirements:

the non-Phase 2 OWB shall be installed a minimum of

150 feet from the nearest property line; and it shall have

a permanently attached stack that extends a minimum of

10 feet above the ground and is installed according to the

manufacturer’s specifications.

Under final-form subsection (c), regarding Phase 2

outdoor wood-fired boilers, except as provided under

subsection (b), a person may not sell, offer for sale,

distribute or install an OWB unless it is a Phase 2 OWB.

Under final-form subsection (d), regarding setback requirements for new Phase 2 outdoor wood-fired boilers, a

person may not install, use or operate a new Phase 2

OWB unless the boiler is installed a minimum of 50 feet

from the nearest property line.

Under final-form subsection (e), regarding stack height

requirements for new Phase 2 outdoor wood-fired boilers,

a person may not install, use or operate a new Phase 2

OWB in this Commonwealth unless the boiler has a

permanently attached stack. The stack must meet both of

the following requirements: extend a minimum of 10 feet

above the ground; and be installed according to the

manufacturer’s specifications.

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Under final-form subsection (f), regarding allowed fuels,

a person that owns, leases, uses or operates an OWB in

this Commonwealth shall use only one or more of the

following fuels: clean wood; wood pellets made from clean

wood; certain home heating oil, natural gas or propane

fuels; or other fuel approved in writing by the Department.

Under final-form subsection (g), regarding prohibited

fuels, a person who owns, leases, uses or operates an

OWB in this Commonwealth may not burn a fuel or

material in that OWB other than those fuels listed under

subsection (f).

Under final-form subsection (h), regarding applicable

laws and regulatory requirements, a person may not use

or operate an OWB in this Commonwealth unless it

complies with applicable Commonwealth, county and local

laws.

Changes from proposed to final-form rulemaking

In addition to the revisions for definitions previously

discussed in this section, changes from the proposed

rulemaking to final-form rulemaking are summarized as

follows:

Final-form § 123.14(b)(2) was added and states that

subsections (c), (d) and (e) do not apply to a permanently

installed OWB that was installed prior to October 2,

2010, and is transferred to a new owner as a result of a

real estate transaction.

Final-form subsection (b)(3) was added and provides

that a person may not sell, offer for sale, distribute or

lease a non-Phase 2 OWB unless it was manufactured,

distributed, purchased or leased and received in this

Commonwealth before May 31, 2011. This exemption will

remain in effect through May 31, 2011. A non-Phase 2

OWB installed during the sell-through period shall meet

the following requirements: the non-Phase 2 OWB shall

be installed a minimum of 150 feet from the nearest

property line; and it must have a permanently attached

stack that extends a minimum of 10 feet above the

ground and is installed according to the manufacturer’s

specifications.

Final-form § 123.14(c) (relating to Phase 2 outdoor

wood-fired boilers) was modified for clarification.

Final-form § 123.14(d) reduces the minimum setback

requirements from 150 feet to 50 feet for new Phase 2

OWBs installed in this Commonwealth. It was also

revised to delete the requirement that a person may not

use or operate a Phase 2 OWB unless the boiler has a

stack that extends at least 2 feet above the highest peak

of the highest residence located within 150 feet of the

OWB.

Final-form § 123.14(e) was revised to state that a

person may not install, use or operate a new Phase 2

OWB in this Commonwealth unless the boiler has a

permanently attached stack that extends a minimum of

10 feet above the ground and is installed according to the

manufacturer’s specifications. This final-form subsection

also deleted the 150 feet stack height requirement.

Proposed subsection (e) was deleted in its entirety.

Final-form subsection (f) clarifies that it relates to a

person that owns, leases, uses or operates an OWB in this

Commonwealth.

Final-form subsection (g) was not revised between the

proposed and final-form rulemakings.

Final-form subsection (h) clarifies that a person may

not use or operate an OWB in this Commonwealth unless

it complies with Commonwealth, county and local laws

and regulations. In addition, specific references to Department regulations were deleted.

The final-form rulemaking deletes proposed subsection

(i).

The final-form rulemaking deletes proposed subsection

(j).

G. Benefits, Costs and Compliance

Benefits

The citizens of this Commonwealth will benefit from

this final-form rulemaking because it will help to reduce

emissions of PM2.5 from OWBs. Attaining and maintaining levels of PM2.5 below the health-based NAAQS is

important to reduce premature mortality and other

health effects associated with PM2.5 exposure. There are

also many citizen complaints regarding the operation of

OWBs. Reductions in ambient levels of PM2.5 would

promote improved human and animal health and welfare,

improved visibility, decreased soiling and materials damage and decreased damage to plants and trees.

Compliance Costs

The cost of complying with the new requirements

includes the cost of designing, manufacturing and distributing an OWB model that meets the EPA Phase 2

emission limit. Currently, there are 19 models available

Nationally that meet the EPA Phase 2 emission limit.

Nonqualifying OWB models cost between $8,000 and

$18,000, depending on the size of the unit. It is estimated

that the cleaner units may be approximately 15% more

expensive because of the changes made to improve the

efficiency of these units and reduce their emissions.

However, most of these qualifying models are significantly

more efficient which means they will burn less wood to

produce the same amount of heat, reducing the cost of

wood purchases.

The final-form rulemaking is not expected to impose

additional direct regulatory costs or savings on local

governments.

The final-form rulemaking is not expected to impose

additional direct regulatory costs or savings on State

government, except that nominal costs will be experienced by the Commonwealth to assist in providing training, outreach and assistance to the regulated community.

New staff resources are not anticipated to be necessary.

Compliance Assistance Plan

The Department plans to educate and assist the public

and regulated community in understanding the newly

added requirements and how to comply with them. This

will be accomplished through the Department’s ongoing

compliance assistance program.

Paperwork Requirements

There are no additional paperwork requirements associated with this final-form rulemaking.

H. Advisory Committee Recommendation

The Department worked with the Air Quality Technical

Advisory Committee (AQTAC) in the development of this

final-form rulemaking. At its April 29, 2010, meeting, the

AQTAC recommended adoption of the final-form rulemaking with the following concerns: all OWBs shall have

a minimum 10 feet stack height requirement; all new

Phase 2 OWBs shall have a 150 feet setback requirement

from the nearest residence and not 50 feet from the

nearest property line; all non-Phase 2 OWBs not used as

the primary source of heat and hot water shall not be

operated between May 15 and September 30; retailers of

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OWBs shall report to the Department the model of boilers

sold and the zip codes of the buyers.

The Department also consulted with the Citizens Advisory Council on March 16, 2010, and May 6, 2010, the

Agricultural Advisory Board on April 21, 2010, and the

Small Business Compliance Advisory Committee (SBCAC)

on April 28, 2010. The SBCAC recommended adoption of

the final-form rulemaking with the following concerns:

the written notice and recordkeeping provisions should be

reinstated in the final-form rulemaking; and supported

providing grant moneys for the purchase and installation

of Phase 2 units to replace old, conventional OWBs.

I. Pollution Prevention

The Pollution Prevention Act of 1990 (42 U.S.C.A.

§§ 13101—13109) established a National policy that promotes pollution prevention as the preferred means for

achieving state environmental protection goals. The Department encourages pollution prevention, which is the

reduction or elimination of pollution at its source, through

the substitution of environmentally friendly materials,

more efficient use of raw materials and the incorporation

of energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with

greater efficiency because they can result in significant

cost savings to facilities that permanently achieve or

move beyond compliance. The final-form rulemaking does

not directly promote a multimedia approach. The reduced

levels of PM2.5, however, will benefit water quality

through reduced soiling and quantities of sediment that

may run off into waterways. Reduced levels of PM2.5

would therefore promote improved aquatic life and

biodiversity, as well as improved human, animal and

plant life on land.

J. Sunset Review

This final-form rulemaking will be reviewed in accordance with the sunset review schedule published by the

Department to determine whether the regulations effectively fulfill the goals for which they were intended.

K. Regulatory Review

Under section 5(a) of the Regulatory Review Act (71

P. S. § 745.5(a)), on October 6, 2009, the Department

submitted a copy of the notice of proposed rulemaking,

published at 39 Pa.B. 6068 (October 17, 2009), to the

Independent Regulatory Review Commission (IRRC) and

the House and Senate Environmental Resources and

Energy Committees (Committees) for review and comment.

Under section 5(c) of the Regulatory Review Act, IRRC

and the Committees were provided with copies of the

comments received during the public comment period, as

well as other documents when requested. In preparing

the final-form rulemaking, the Department has considered all comments from IRRC, the Committees and the

public.

Under section 5.1(j.2) of the Regulatory Review Act (71

P. S. § 745.5a(j.2)), on August 18, 2010, the final-form

rulemaking was deemed approved by the Committees.

Under section 5.1(e) of the Regulatory Review Act, IRRC

met on August 19, 2010, and approved the final-form

rulemaking.

L. Findings

The Board finds that:

(1) Public notice of proposed rulemaking was given

under sections 201 and 202 of the act of July 31, 1968

(P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and

regulations promulgated thereunder, 1 Pa. Code §§ 7.1

and 7.2.

(2) At least a 60-day public comment period was

provided as required by law and all comments were

considered.

(3) This final-form rulemaking does not enlarge the

purpose of the proposed rulemaking published at 39 Pa.B.

6068.

(4) This final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this order.

(5) This final-form rulemaking is reasonably necessary

to achieve and maintain the PM2.5 NAAQS.

M. Order

The Board, acting under the authorizing statutes,

orders that:

(a) The regulations of the Department, 25 Pa. Code

Chapters 121 and 123, are amended by amending

§§ 121.1 and 123.14 to read as set forth in Annex A, with

ellipses referring to the existing text of the regulations.

(b) The Chairperson of the Board shall submit this

order and Annex A to the Office of General Counsel and

the Office of Attorney General for review and approval as

to legality and form, as required by law.

(c) The Chairperson of the Board shall submit this

order and Annex A to IRRC and the Committees as

required by the Regulatory Review Act.

(d) The Chairperson of the Board shall certify this

order and Annex A and deposit them with the Legislative

Reference Bureau, as required by law.

(e) This final-form rulemaking will be submitted to the

EPA as an amendment to the Pennsylvania State Implementation Plan.

(f) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.

JOHN HANGER,

Chairperson

(Editor’s Note: For the text of the order of the Independent Regulatory Review Commission relating to this

document, see 40 Pa.B. 5424 (September 18, 2010).)

Fiscal Note: Fiscal Note 7-444 remains valid for the

final adoption of the subject regulations.

Annex A

TITLE 25. ENVIRONMENTAL PROTECTION

PART I. DEPARTMENT OF ENVIRONMENTAL

PROTECTION

Subpart C. PROTECTION OF NATURAL

RESOURCES

ARTICLE III. AIR RESOURCES

CHAPTER 121. GENERAL PROVISIONS

§ 121.1. Definitions.

The definitions in section 3 of the act (35 P. S. § 4003)

apply to this article. In addition, the following words and

terms, when used in this article, have the following

meanings, unless the context clearly indicates otherwise:

*****

Btu—British thermal unit—The amount of thermal

energy necessary to raise the temperature of 1 pound of

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pure liquid water by 1° F at the temperature at which

water has its greatest density (39° F).

*****

Clean wood—The term includes the following:

(i) Wood that contains no paint, stains or other types of

coatings.

(ii) Wood that has not been treated with preservatives

or chemicals, including copper, chromium arsenate, creosote and pentachlorophenol.

*****

New Phase 2 outdoor wood-fired boiler—A Phase 2

outdoor wood-fired boiler that is installed on or after

October 2, 2010.

*****

Non-Phase 2 outdoor wood-fired boiler—An outdoor

wood-fired boiler that has not been certified or qualified

by the EPA as meeting a particulate matter emission

limit of 0.32 pounds per million Btu output or lower and

is labeled accordingly.

*****

Outdoor wood-fired boiler—

(i) A fuel-burning device that:

(A) Is designed to burn, or is capable of burning, clean

wood or other fuels listed under § 123.14(f) (relating to

outdoor wood-fired boilers).

(B) Has a rated thermal output of less than 350,000

Btu per hour.

(C) The manufacturer designs or specifies for outdoor

installation or installation in structures not normally

intended for habitation by humans or domestic animals,

including structures like garages and sheds.

(D) Heats building space or fluid, or both, through the

distribution, typically through pipes, of a fluid heated in

the device, typically water or a mixture of water and

antifreeze.

(ii) The fuel-burning device may also be known as an:

(A) Outdoor wood-fired furnace.

(B) Outdoor wood-burning appliance.

(C) Outdoor hydronic heater.

*****

Phase 2 outdoor wood-fired boiler—An outdoor woodfired boiler that has been certified or qualified by the EPA

as meeting a particulate matter emission limit of 0.32

pounds per million Btu output or lower and is labeled

accordingly.

*****

CHAPTER 123. STANDARDS FOR CONTAMINANTS

PARTICULATE MATTER EMISSIONS

§ 123.14. Outdoor wood-fired boilers.

(a) Applicability. Beginning on October 2, 2010, this

section applies to the following:

(1) A person, manufacturer, supplier or distributor who

sells, offers for sale, leases or distributes an outdoor

wood-fired boiler for use in this Commonwealth.

(2) A person who installs an outdoor wood-fired boiler

in this Commonwealth.

(3) A person who purchases, receives, leases, owns,

uses or operates an outdoor wood-fired boiler in this

Commonwealth.

(b) Exemptions.

(1) This section does not apply to a person, manufacturer, supplier or distributor who sells, offers for sale,

leases or distributes in this Commonwealth a non-Phase

2 outdoor wood-fired boiler if the person, manufacturer,

supplier or distributor demonstrates the non-Phase 2

outdoor wood-fired boiler is intended for shipment and

use outside of this Commonwealth.

(2) Subsections (c), (d) and (e) do not apply to a

permanently installed outdoor wood-fired boiler that was

installed prior to October 2, 2010, and is transferred to a

new owner as a result of a real estate transaction.

(3) A person may not sell, offer for sale, distribute or

lease a non-Phase 2 outdoor wood-fired boiler in this

Commonwealth unless the outdoor wood-fired boiler was

manufactured, distributed, purchased or leased and received in this Commonwealth before May 31, 2011.

(i) This exemption shall remain in effect until May 31,

2011.

(ii) A non-Phase 2 outdoor wood-fired boiler purchased

during the sell-through period must meet the following

requirements:

(A) Be installed a minimum of 150 feet from the

nearest property line.

(B) Have a permanently attached stack that meets the

following requirements:

(I) Extends a minimum of 10 feet above the ground.

(II) Is installed according to the manufacturer’s specifications.

(c) Phase 2 outdoor wood-fired boiler. Except as provided under subsection (b):

(1) A person may not sell, offer for sale, distribute or

install an outdoor wood-fired boiler for use in this Commonwealth unless it is a Phase 2 outdoor wood-fired

boiler.

(2) A person may not purchase, lease or receive an

outdoor wood-fired boiler for use in this Commonwealth

unless it is a Phase 2 outdoor wood-fired boiler.

(d) Setback requirements for new Phase 2 outdoor

wood-fired boilers. A person may not install a new Phase

2 outdoor wood-fired boiler in this Commonwealth unless

the boiler is installed a minimum of 50 feet from the

nearest property line.

(e) Stack height requirements for new Phase 2 outdoor

wood-fired boilers. A person may not install, use or

operate a new Phase 2 outdoor wood-fired boiler in this

Commonwealth unless the boiler has a permanently

attached stack. The stack must meet both of the following

requirements:

(1) Extend a minimum of 10 feet above the ground.

(2) Be installed according to the manufacturer’s specifications.

(f) Allowed fuels. A person that owns, leases, uses or

operates an outdoor wood-fired boiler in this Commonwealth shall use only one or more of the following fuels:

(1) Clean wood.

(2) Wood pellets made from clean wood.

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(3) Home heating oil, natural gas or propane that:

(i) Complies with all applicable sulfur limits.

(ii) Is used as a starter or supplemental fuel for

dual-fired outdoor wood-fired boilers.

(4) Other types of fuel approved in writing by the

Department upon receipt of a written request.

(g) Prohibited fuels. A person who owns, leases, uses or

operates an outdoor wood-fired boiler in this Commonwealth may not burn a fuel or material in that outdoor

wood-fired boiler other than those fuels listed under

subsection (f).

(h) Applicable laws and regulatory requirements. A

person may not use or operate an outdoor wood-fired

boiler in this Commonwealth unless it complies with

applicable Commonwealth, county and local laws and

regulations adopted thereunder.

[Pa.B. Doc. No. 10-1876. Filed for public inspection October 1, 2010, 9:00 a.m.]

Title 28—HEALTH

AND SAFETY

DEPARTMENT OF HEALTH

[ 28 PA. CODE. CH. 211 ]

Program Standards for Long-Term Care Nursing

Facilities

The Department of Health (Department), following

consultation with the Health Policy Board, amends

§ 211.7 (relating to physician assistants and certified

registered nurse practitioners) to read as set forth in

Annex A.

A. Purpose of the Final-Omitted Rulemaking

This final-omitted rulemaking amends § 211.7 to address unnecessarily proscriptive procedures applicable to

the provision of care by a certified registered nurse

practitioner (CRNP) to a resident of a long-term care

nursing facility (nursing home). Specifically, the finalomitted rulemaking amends § 211.7(c) as it applies to

CRNPs because the subsection placed an unnecessary and

broad restriction on how the CRNP, the collaborating

physician and the nursing home determine the specifics of

their relationship, and results in a barrier to a nursing

home resident’s access to qualified health care practitioners and increased health care costs. Although § 211.7(c)

uses the term ‘‘supervising physician,’’ the relationship

between a CRNP and a physician is one of collaboration.

Section 211.7(a) and (b) set forth broad parameters for

the use of CRNPs in nursing homes. Section 211.7(a)

provides that CRNPs may be utilized in nursing homes in

accordance with their training and experience and the

requirements in statutes and regulations governing their

practice. Section 211.7(b) requires, among other things,

that the nursing home establish written policies indicating the manner in which the CRNPs shall be used and

the responsibilities of the collaborating physicians. Section 211.7(c), however, further requires that the collaborating physician countersign a CRNP’s documentation on

a resident’s record within 7 days. This includes progress

notes, physical examination reports, treatments, medications and other notations made by the CRNP. Subsection

(c) unnecessarily restricts the CRNP’s and collaborating

physician’s ability to specify how often and in what

circumstances the physician’s countersignature will be

required on the CRNP’s orders and other documentation.

Section 211.7(c) is amended by removing this unnecessary restriction on the CRNP/physician collaborative relationship. Given the CRNP’s recently expanded scope of

practice and the emphasis on the definition of a CRNP’s

practice through the collaborative agreement that now

exists in The Professional Nursing Law (PNL) (63 P. S.

§§ 211—225.5) and the regulations in 49 Pa. Code Chapter 21, Subchapter C (relating to certified registered

nurse practitioners) promulgated under the PNL by the

State Board of Nursing (Board) regarding CRNPs, it is

unnecessary for the Department to define this particular

element of the CRNP/physician relationship with so much

specificity. Rather, as required under § 211.7(b) and

recognized in section 8.2(c.2)(2) of the PNL (63 P. S.

§ 218.2(c.2)(2)), a nursing home should have the flexibility to determine the supervision or other oversight requirements for physicians and CRNPs practicing within

its facility based on the needs of the nursing home’s

residents. Within these parameters, CRNPs and collaborating physicians should have the ability to establish

their responsibilities to each other within the context of

the collaborative agreement between them and without

undue direction from the Department.

The PNL and the regulations promulgated by the Board

provide that the collaboration process shall incorporate

the availability of the physician for cosigning records,

when appropriate. Placing specific restrictions on this

aspect of the collaborative relationship inhibits the physician and the nursing home from fully recognizing the

individual CRNP’s training and experience, unnecessarily

restricts the physician’s and nursing home’s utilization of

CRNPs in providing medical care to nursing home residents and ultimately negatively interferes with a nursing

home resident’s medical care.

Section 211.7 was last revised in 1999, over a decade

ago. Since that time, health care practice has evolved to

refine and expand the scope of practice of nonphysician

health care practitioners, in particular CRNPs, to increase health care access and quality and contain or

reduce health care costs. CRNPs continue to receive

advanced education and training to provide them the

knowledge necessary to deliver this expanded care. The

recent amendments to the Board’s regulations regarding

CRNPs, published at 39 Pa.B. 6994 (December 12, 2009),

recognized the need to update requirements regarding the

practice of CRNPs because ‘‘existing regulations prevented the effective use of CRNPs to the full extent of

their education, skills and abilities, thereby depriving the

citizens of this Commonwealth necessary, high quality

care.’’ It is for these same reasons that the Department

amends § 211.7(c).

Amendments to the PNL and to the Board’s regulations

now provide the appropriate rules regarding the collaborative relationship between the CRNP and the physician

and there is no reasonable basis for continuing the

requirement applicable to CRNPs in § 211.7(c). Section

211.7(a) and (b) provide more than adequate requirements for nursing homes regarding the CRNP’s practice

and in addition allow for the appropriate flexibility in the

relationship between the CRNP and the collaborating

physician. Section 211.7(c) is a specific requirement that

may or may not suit the circumstances in the individual

CRNP/physician collaborative agreement or the nursing

home resident’s medical needs.

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