Eaton Peabody

Outdoor wood boilers have become a popular heating alternative in Maine as many residents opt out of oil heat and the ever-surging price of home heating fuel. At time when the Farmer's Almanac is predicting above-average snowfall and colder temperatures than previous winters, and prices for home heating fuel hover around $2.70 a gallon, Maine residents are actively looking for ways to heat their home without going behind in their bills. And this winter may bring a large increase in the number of outdoor wood boilers before a new state law takes effect.

Enacted in 2007, Title 38 of the Maine Revised Statutes Annotated § 610-B prohibits the sale or distribution of an outdoor wood boiler after April 1, 2008 unless it meets a Phase I particulate emissions limit of 0.6 pounds per million BTU heat input. A phase II emission limit of 0.32 pounds per million BTU heat input applies after April 1, 2010. In addition, the new law prohibits the operation of an outdoor wood boiler in a manner that creates a nuisance condition.

The law also gives the Maine Department of Environmental Protection an oversight role for many of the land use concerns associated with outdoor wood boilers. As these boilers have been installed, abutters' disputes over siting and stack height have often occurred. The new law directs the DEP to adopt rules related to outdoor wood boilers, including provisions related to siting, operation and labeling requirements, stack heights, dealer and manufacturer reporting, public notification of emissions standards and operation and siting requirements among others. The rules adopted by the DEP will also be enforced by the DEP.

While the new law is likely to address most common concerns about outdoor wood boilers, some buyers may be encouraged to buy now, to beat the April 1, 2008 effective date for the new emissions standards - especially as retailers offer discount prices on boilers that may not meet the state's new standards. Municipalities concerned about this possibility may wish to consider enacting a moratorium to prevent the installation of outdoor wood boilers until April 1, 2008. Or, a municipality may consider enacting an ordinance that requires outdoor wood boilers to meet the state's new Phase I and Phase II emissions standards, effective immediately. A municipal emissions ordinance can also be made retroactive to the date that it is first proposed, - to close the window on non-complying boilers at an even earlier date.

Eaton Peabody attorneys are available to assist municipalities in understanding the new state law on outdoor wood boilers and in drafting ordinances to regulate these uses under municipal home rule authority.