Legislature(2013 - 2014)BARNES 124
02/03/2014 01:00 PM RESOURCES
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* first hearing in first committee of referral
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HB 163-REGULATION OF SOLID FUEL BURNING DEVICES 1:06:09 PM CO-CHAIR SADDLER announced that the first order of business is HOUSE BILL NO. 163, "An Act prohibiting a person from burning certain materials in a solid fuel burning device; relating to solid fuel burning device emission standards; and relating to prohibitions on the burning of solid fuels." [Before the committee was the proposed committee substitute (CS) for HB 163, Version 28-LS0248\R, Nauman, 4/4/13, adopted as the working document on 4/6/13.] 1:06:52 PM REPRESENTATIVE P. WILSON moved to adopt the proposed committee substitute (CS) for HB 163, Version 28-LS0248\G, Nauman, 1/27/14, as the working document. There being no objection, Version G was before the committee. 1:07:07 PM REPRESENTATIVE TAMMIE WILSON, Alaska State Legislature, sponsor of HB 163, outlined the provisions of Version G. She noted the bill's length is shortened due to the proposed [air quality] regulations being put forth by the Department of Environmental Conservation (DEC). She explained that the Fairbanks North Star Borough has been designated a particulate matter (PM) 2.5 nonattainment area by the U.S. Environmental Protection Agency (EPA). Space heating devices, predominantly wood and pellet stoves and hydronic heaters, are being used by a growing number of Fairbanks residents to heat homes and businesses. The amount of wood burning has nearly doubled since 2006, a direct response to increases in the price of heating oil and the lack of low cost, clean burning, alternative fuels. A governmental agency should not be allowed to shut down a resident's right to utilize a certified appliance burning approved materials, unless an emergency arises, she asserted. Version G would require an emergency [prohibition] by the governor for an area to have its wood burning completely banned and would set the emergency level at 351 micrograms per cubic meter [of air], the same level included in DEC's proposed regulations. Version G would also put into statute the list of things that, under regulation, cannot legally be burned in a wood stove or coal burner. This includes such things as painted material, railroad ties, and tires, to help people understand what should not be burned. Unfortunately, when people do burn those items, it is because they cannot afford the heating oil. This is all about a high cost of energy, she stressed. As heating oil has become more expensive, those in the Bush have had much higher expenses than other communities and have turned to alternative sources, which includes wood, pellets, and coal. Many of the borough's businesses have turned to coal burners, which are cleaner than some of the hand-loaded wood stoves. Hand-loaded wood stoves smolder when they cool down, she explained, which goes on throughout the day [as they burn the wood supply] and then have to be manually re-filled. However, pellet and coal stoves have an automatic feed that keeps the temperature constant. REPRESENTATIVE T. WILSON said the bill has some issues, so she is requesting the committee to hold the bill today. She reported DEC is concerned the bill will cause the department to be unable to enforce what cannot be burned, which is not her intent and which she will discuss further with DEC. Also of concern to DEC is the five-year sunset, a date she chose in the hope that there would be affordable energy by then. The DEC commissioner would feel better with a two-year sunset, she said. The state is required to make an implementation plan that shows the EPA how the state is going to get from one point to the next. However, the numbers are ever moving because the EPA is always lowering the number. When EPA lowered [the maximum level] from 65 micrograms per cubic meter to 35, it put the borough into its current problem. Had the level stayed at 65, the borough would have been okay for a few more years; although, she conceded, the borough would probably be in nonattainment at this point because more wood is being burned. 1:11:34 PM CO-CHAIR FEIGE inquired about the significance of the microgram number of 351, as per page 1, line 10, Version G. REPRESENTATIVE T. WILSON responded this number is the emergency level proposed in the DEC regulations brought to her community, so she put this number in the bill. 1:12:10 PM REPRESENTATIVE KAWASAKI asked whether the 351 micrograms is an acceptable level and whether [DEC] has set an acceptable level for pollution. REPRESENTATIVE T. WILSON replied that 351 is the number set as the point for emergency [by DEC]. However, as she has told the DEC commissioner, she is not married to this number if DEC wants to recommend a different number. REPRESENTATIVE KAWASAKI stated that if EPA is constantly trying to ratchet down the microgram level, then putting 351 micrograms into statute would result in having to change the statute if EPA changes the acceptable limits. He asked why the proposal is to do the level by statute rather than by regulation. REPRESENTATIVE T. WILSON answered that right now the state must get down to 35 micrograms, not 351. An emergency is when [particulates] rise to a certain level and the question is how far over that level it should get to call an emergency. In this bill, she is trying to look through the eyes of her constituents regarding an emergency. People leave for work with their wood stoves burning, she stated. The proposed regulations say that immediate action can be taken if it gets to an episode. However, since this plan has not been seen, it is unknown what an immediate action is. She expressed concern about people who have to leave work to go home to shut down their wood stoves and hope they have enough oil to last for the number of days it takes for the air quality to reach a certain level. She questioned if people can be asked to go through that kind of stress on a day-to-day basis. She said she is in favor of the borough's current volunteer shutdowns to improve the change-out programs, she said, or possibly subsidizing oil in certain areas that are worse. When people are forced to shut down qualified stoves while using the dry wood they are supposed to use, it is like grouping everyone together on the highway and picking out five or six cars because there are too many cars on the road. She asked what can be done until technology improves so people feel that they can stay in the community. She said the number of micrograms can be discussed by DEC staff or the commissioner. REPRESENTATIVE KAWASAKI asked what the sponsor envisions will happen if the level is exceeded, given that the level would be in statute rather than regulations, and the proposed bill does not address what happens in the case of an emergency. REPRESENTATIVE T. WILSON concurred the bill would supersede regulations should [DEC] want the number to be lower and the immediate action to be a forcible shutdown. That is what she is trying to prevent by taking it to the level of an emergency, she said, "and to an elected official, one who's a head of our state, that that should be his decision and not a commissioner or someone else down the line, when you're talking about this degree of impact on a community." 1:16:37 PM REPRESENTATIVE SEATON noted a number of businesses burn waste petroleum products, one of the prohibited items within Section 2, but they are not burning the waste petroleum products in a wood or coal designed furnace. He surmised there is nothing in the bill that would impact someone burning waste petroleum products in a burner designed for liquid waste products. REPRESENTATIVE T. WILSON agreed, saying such a burner would not be a solid fuel burning heating device as defined. 1:18:00 PM REPRESENTATIVE SADDLER asked what the consequences are for violating the fuel prohibitions in Section 2. REPRESENTATIVE T. WILSON replied that DEC's process is to first write a letter to the person and ultimately take the person to court. In further response, she said she did not know what the amount of a fine could be. CO-CHAIR SADDLER, regarding page 1, line 9, that the prohibition be authorized by the governor, inquired whether the sponsor's intention is that it must be the governor personally or if it could be the governor's designee. REPRESENTATIVE T. WILSON responded that this could have a major impact to an area of the state, so she would like it to be the governor since the governor is the elected official heading the state. [Subsection (k), page 1, lines 6-7,] is included in Version G, she added, because Juneau already has a State Implementation Plan and is therefore exempted from this bill. She further noted that she is working with the Municipality of Anchorage to answer its questions and ensure the bill does not negatively impact that community. Responding to Representative Seaton, she explained that subsection (k) is referring to the City and Borough of Juneau because it is the only one that has a wood smoke control area designated by name in state regulation. CO-CHAIR SADDLER understood the repealer in Section 4 is because the sponsor is assuming that good things will be coming "down a pipeline" in the future. REPRESENTATIVE T. WILSON said Section 4 would bring it back to the legislature again, at which point it can be assessed for whether this needs to be continued. For example, there could be improved technology with the solid fuel burning devices or a gas supply of some sort could have reached the borough by then. 1:21:34 PM REPRESENTATIVE KAWASAKI, regarding the governor authorizing this type of prohibition, noted that Fairbanks has ceded this type of control over to the state. He asked, however, whether the state and governor making a decision on air quality, rather than the local community, is really the kind of policy that is wanted. REPRESENTATIVE T. WILSON answered the governor already has this power during an emergency and she would take it up a notch because she thinks it is absolutely for the governor to do. In the past the state has been a big player in how her community has done energy, such as electricity and major projects, and with that comes some responsibility. When it came to whether her community was going to try meeting the air quality [standards], it was the state that made an agreement with EPA to get the community to meet any new numbers, no matter what that may take from the community. The point of HB 163, she said, is to refocus that Fairbanks is trying to bring in the best technology and replace older equipment to improve air quality. Not understood is why the air quality cannot just get better; instead, EPA's bottom line is that this number must be met even though the community cannot do it with the best technology out there. She said it is going to take some other type of energy besides even heating oil because heating oil is also at PM 2.5. Five years from now, if Fairbanks still does not have gas or the governor has had to frequently call an emergency, this will put pressure on the state that it must be a player. The borough does not have the finances, nor should it have to put its money there, when the state itself has not done it, she opined. 1:23:52 PM CO-CHAIR SADDLER inquired about local ordinances and voter initiatives that the borough has adopted throughout the past. REPRESENTATIVE T. WILSON reiterated that the EPA keeps changing the numbers. Another episode was in 2008, she said, when then- governor Sarah Palin gave $1,200 to each state resident for energy needs. The month people received that money, along with their permanent fund dividend, the price of oil jumped over night to almost $5 per gallon. People went into a panic mode and bought outdoor boilers, which are meant for big buildings rather than homes, and this increased the air quality issues even more. The borough then came up with an ordinance, mostly because of pressure from the EPA. The EPA only gives so much credit for voluntary measures even when those measures are working, she stated. Pressure is being put on the DEC commissioner to do enforcement on Fairbanks to bring the community into compliance because that is what the EPA requires, but weather inversion is the number one reason the borough is having issues. She said it is the big power plants which fill up the top of the airshed, wood stoves fill the next level of the airshed, and car emissions fill the lowest level. Using state funding, the borough did a wood stove change-out program, but unlike Libby, MT, which did a one-on-one swap, the borough required that a borough employee come in to take a picture, the homeowner had to have the money up front, put in the paperwork, and then bring in the [new] appliance. Taking a picture was an issue because the people in her community are not very friendly when government wants to come into their homes, she noted. When the borough decides to fine people during these times, citizens' initiatives are put out that say the borough cannot fine people for trying to heat their homes. This puts it on the state level and the city level of Fairbanks and North Pole, but not the borough itself, because it is still the peoples' intent that as technology improves and as gas gets to homes, [air quality will improve]. For example, it was not the local testing of car emissions at a cost of $70 per car every two years that improved air quality; rather, it was because technology got better and old cars died. Unfortunately, wood stoves do not die as easily as cars do and people become very attached to them. Once people see how much better the new technology is, they will do it, but it must be made to work in that direction, she stated. 1:28:21 PM REPRESENTATIVE T. WILSON, in response to two questions from Co- Chair Saddler, defined airshed as the ambient air measurement done by monitors. A hydronic heater, she explained, is a big, rectangular, outdoor wood stove hooked up to a water heater that only needs to be filled once a day. Hydronic heaters do not work quite as well because the whole wood used in them is not as dry as split wood, plus the heaters are not turned up as high as they need to be because the area being heated in homes is small. CO-CHAIR FEIGE noted natural gas is being burned in Eagle River. 1:29:42 PM REPRESENTATIVE TARR stated that some of the prohibited items listed in proposed AS 46.14.570 produce fine particulate matter when combusted and therefore have some influence in overall air quality measurements. She asked why this proposed statute would be repealed on January 1, 2019, as per Section 4 of Version G, given those items should never be burned in a wood stove. REPRESENTATIVE T. WILSON replied she does not understand the question because those items are listed in regulation and are only relisted in the bill. REPRESENTATIVE TARR suggested that repeal of these prohibited items may not be wanted because the burning of plastics and rubber products is something that should never be done. REPRESENTATIVE T. WILSON conceded that is a good point. She said the repeal is more related to the first part rather than the second, so she will consider the suggestion. 1:31:22 PM CO-CHAIR FEIGE posited that a technological advance could occur in the next five years that would allow those prohibited items to be burned because they would not contribute to air pollution. REPRESENTATIVE T. WILSON agreed, saying things have come a long way; for example, some stoves now take wood or oil. Section 4 would require a review of all prohibited items in five years. 1:32:12 PM REPRESENTATIVE JOHNSON inquired whether the list of prohibited items would be applied to all municipalities or only to Fairbanks. REPRESENTATIVE T. WILSON answered it would be applied to Anchorage as well as Fairbanks. REPRESENTATIVE JOHNSON noted that Anchorage does its own monitoring and can now do its own emergency orders. He asked whether this would prevent Anchorage from having that ability. REPRESENTATIVE T. WILSON responded that she does not believe so, but she is having discussions with Anchorage and will make sure that Anchorage's questions are addressed. REPRESENTATIVE JOHNSON related there are people in Anchorage who burn for aesthetics rather than heat and for this they use treated plastic logs purchased at Fred Meyer's. He asked whether HB 163 would ban the sale or use of that product in any place in Alaska during an emergency order. REPRESENTATIVE T. WILSON replied that is not her intent, so she will make sure that the bill does not. She pointed out that Anchorage, Fairbanks, and Juneau have air quality programs, but the Wasilla area is the next community that will probably have a problem with the PM 2.5; therefore, she will ensure this point applies to any community. REPRESENTATIVE JOHNSON offered his agreement with Representative Kawasaki about keeping this with the city rather than putting it in the state's hand, especially in Anchorage where that control has not been given up and Anchorage still does the monitoring. REPRESENTATIVE T. WILSON answered that is why it is just on an emergency level and the prohibited item list is already there for the state. It is not her intent to step on any of the municipalities. Her intent is to ensure that when there is the possibility of a huge negative impact, it is known who will be making those calls. REPRESENTATIVE JOHNSON thanked the sponsor for working with Anchorage in regard to the bill. 1:35:28 PM REPRESENTATIVE KAWASAKI noted that the issue of air quality has long been worked on in Fairbanks, and [state] regulations are currently being promulgated. Given that a quicker solution is wanted rather than a slower one, he inquired what impact HB 163 will have on the regulations currently being drafted. REPRESENTATIVE T. WILSON responded that DEC has said it wants sold only those stoves that put out 2.5 [micrograms] per hour, and "the borough would still be able to be allowed in this." The intent is that DEC could still go after people who are burning prohibited items, but Legislative Legal and Research Services has said that that portion of the bill could be much clearer. All volunteer activities and programs could still take place. "It just takes it to a notch to where you are literally doing a complete banning of an energy source would make it clearer on who could absolutely do that portion of it," she said. REPRESENTATIVE KAWASAKI expressed his concern that if a bill is passed by the legislature it will take a long time to promulgate the regulations. Delay has caused a lot of people in Fairbanks to move, he said, so he does not want to see any delay in implementing some sort of a policy to get to the root of the air pollution issue in the Fairbanks area. REPRESENTATIVE P. WILSON agreed and said that is why the bill version that comes back to the committee will not impact the majority of what is in the proposed regulations. She clarified that they are proposed regulations and DEC is currently going through the hundreds of comments it has received. The final regulations will be part of the State Implementation Plan, she explained, and passing a bill now is less likely to slow things down than waiting until after finalization of the regulations and plan. 1:37:51 PM CO-CHAIR FEIGE asked whether the list of prohibited items is enforced at all times or only when the governor declares an emergency. REPRESENTATIVE T. WILSON replied those items cannot be burned in a solid fuel burning heating device at any time. In further response, she confirmed that these prohibited items are included in current regulations. CO-CHAIR FEIGE inquired whether there is an exemption for burning the prohibited items in a rural area, for example, a remote mining camp, where there would be no significant detriment to the overall air quality. REPRESENTATIVE T. WILSON answered there is no exemption. However, she clarified, it is a solid fuel burning heating device being talked about here, so it might be different for an open bonfire. CO-CHAIR FEIGE said these remote camps use incinerators for getting rid of all kinds of things, including some of the things on the prohibited list. REPRESENTATIVE T. WILSON responded that incinerators would not be included in HB 163 because the bill defines solid fuel burning heating device, and those prohibited items cannot be burned in that type of device. If not in an urban area, the odds of DEC imposing a fine are probably little to none, she said, but these items still should not be burned in a solid fuel burning heating device as defined in the bill. 1:40:44 PM REPRESENTATIVE HAWKER, regarding page 1, line 10, asked whether "region" is a defined term. REPRESENTATIVE T. WILSON replied the bill's terminology is taken from the regulations as proposed by DEC, so she assumes DEC has that definition. Her community is a nonattainment area, so most of the rules being talked about pertain to that actual region. REPRESENTATIVE HAWKER said it seems vague to him because if it is not defined then it is unclear what constitutes the region. REPRESENTATIVE T. WILSON agreed and said she will make sure it is defined. 1:42:50 PM REPRESENTATIVE SEATON inquired whether the intent of page 1, lines 9-10, is that the governor cannot authorize the prohibition under any other circumstances. REPRESENTATIVE T. WILSON answered neither the governor nor anyone else could mandatorily shut down a region's wood-fired devices unless the level [is at 351 micrograms per cubic meter]. She said she will talk further with the DEC commissioner about whether that number is correct. REPRESENTATIVE SEATON asked whether there is, or will be, a definition of treated wood. REPRESENTATIVE T. WILSON responded she will find out. REPRESENTATIVE SEATON explained he is bringing this up because of Representative Johnson's question about pressed logs. He posited it could get into a situation where someone sues the state claiming that pellets are treated wood. CO-CHAIR SADDLER understood only the governor could call the ban and the ban could only be called if the standard is exceeded. REPRESENTATIVE T. WILSON said he is correct. 1:45:08 PM REPRESENTATIVE KAWASAKI inquired how HB 163 would impact the regulations currently being promulgated by DEC. ALICE EDWARDS, Director, Division of Air Quality, Department of Environmental Conservation (DEC), said the division is still looking through Version G and has had initial discussions with the bill sponsor. The division still needs to clarify some of that so it understands what the implications would be to the regulatory proposals that have gone out for public comment. Therefore, she said, she cannot speak to that until DEC has had more time to review the proposed bill. REPRESENTATIVE KAWASAKI reported the borough and the state have been going round and round on this and people are leaving Fairbanks due to the energy costs and the air quality. A delay would be difficult for him if the division thinks it is moving quickly on the proposed regulations. He asked whether the bill would impact the State Implementation Plan. MS. EDWARDS said the division is looking at the bill to determine how it will impact the State Implementation Plan, both the parts that are already in place as well as the future plan for the Fairbanks North Star Borough. Clearly, the division is trying to find solutions and make emission reductions in the borough's nonattainment area as expeditiously as possible. It is important the division take that into context when reviewing this bill. 1:47:14 PM REPRESENTATIVE KAWASAKI queried whether 351 micrograms per cubic meter of air is exactly what is in current regulation. MS. EDWARDS replied that number was in the proposal. A section in the existing air quality regulations deals with emergency types of episodes, and for most pollutants the division has set three different levels of standards: an episode, a warning, and an emergency. The 351 micrograms per cubic meter at a 24-hour average is DEC's new proposal for the highest level for fine particulate matter; those have not yet been adopted. REPRESENTATIVE KAWASAKI paraphrased from the Air Quality Index regarding 351 micrograms per cubic meter in a 24-hour period: "everyone should avoid physical activity outdoors; people with heart and lung disease, older adults, children should remain indoors; keep activity levels very low." He asked whether the state has given thought to making the standard higher than is currently proposed. MS. EDWARDS answered DEC is looking at the comments it has received on that proposal. She confirmed it does tie back to the Air Quality Index and for the episode level DEC has proposed 56, which is when it is unhealthy for all individuals. An intermediate step and an emergency level were also proposed. 1:49:05 PM CO-CHAIR SADDLER queried about the timeline for delivery of the proposed regulations. MS. EDWARDS responded the comment period closed at the end of January  and many hundreds of comments were received. The division is working to move through those relatively quickly, but there is a lot of information to look at. It will take a couple of months to work through the comments and with the commissioner and administration to get a final package. 1:49:39 PM REPRESENTATIVE P. WILSON commented that the proposed regulations make a difference for the town of Fairbanks, while DEC is concerned about the actual health of the people living in Fairbanks. While there are two different angles to look at this, as a parent she would want to be warned when certain levels are reached so she could ensure her children are watching TV instead of running around. She inquired whether the town of Fairbanks wants to change what DEC has put into place so that it does not have to close down as soon. MS. EDWARDS, qualifying she is unsure of the question, replied that DEC does currently call air quality advisories in Fairbanks and will continue to do so. The setting of the episode levels formalizes concentrations for fine particulate matter, which, to this point, DEC has not had in regulation. So, it is new, but is a statewide proposal that would then also factor into the situation in Fairbanks. REPRESENTATIVE P. WILSON asked whether the majority of people commenting on the proposed regulations were for or against putting these levels in place. MS. EDWARDS answered that federal requirements calling for the establishment of episode levels is one reason why the proposed regulations were brought forward. The department received many comments from people in the community about what those levels should be, and those are still being evaluated. 1:52:11 PM REPRESENTATIVE TARR inquired whether the majority of people commenting wanted the regulations to be stricter or more lenient than proposed. MS. EDWARDS responded DEC is still looking at the comments, but comments are being seen in both directions. 1:52:54 PM CO-CHAIR SADDLER held over HB 163, saying public testimony would be held the next time the bill is brought up.