NH Legal Perspective: If you heat with oil, pay attention or pay the price

Many commercial, industrial and municipal buildings in New Hampshire, as well as 45 percent of homes, are heated with fuel oil. Thanks to some recent law changes, the good news is that the heating oil they use will now burn cleaner even as the cost stays about the same.

While these changes impose compliance deadlines on some parties, they also serve as an important reminder to all heating oil users of the ongoing necessity of ensuring the safe storage and use of petroleum products. Inattention to your supply or storage of heating fuel could result in unwelcome and expensive consequences.

New Hampshire's most commonly used heating oil is No. 2 oil - often called "home heating oil" - and is essentially the same as the diesel fuel that powers many trucks and commercial emergency generators. A few facilities use heavier oils, but all fuel oils contain sulfur, which when burned forms sulfur dioxide (SO2). Use of such oils can result in fine particles that go out the vent pipe from the burner or boiler and contribute to air pollution and, potentially, human health problems.

Experts have concluded that breathing elevated levels of SO2 can cause wheezing, breathing difficulty and shortness of breath. And because airborne SO2 also forms fine particles in the air we breathe, health professionals advise that it contributes to heart and respiratory diseases, as well as impaired lung function, especially in those who suffer from pulmonary diseases, including asthma. And if that weren't bad enough, SO2 is also a major cause of acid rain, and its byproducts are the primary cause of the hazy air that robs New England of crystal clear skies and views.

Due to these and other concerns, New Hampshire recently amended its air pollution control law to prohibit the sale and use of anything but "ultra-low sulfur fuel." The new law is expected to cut overall sulfur dioxide emissions in New Hampshire from heating oil by some 75 percent. Moreover, because all of the other New England states have already switched to ultra-low sulfur fuel, the price of heating oils in New Hampshire is not expected to change due to this new law.

Here are some important compliance deadlines and considerations:

Heating oil importers: Starting July 1, 2018, these companies are allowed to import only "ultra-low sulfur fuel" into New Hampshire. They shouldn't be surprised if the New Hampshire Department of Environmental Services asks them to certify their compliance with this deadline, or if DES tests some samples to confirm the sulfur content of the imported fuels.

Commercial, industrial, municipal and institutional heating oil users: There are some 300 facilities that hold permits issued by DES that regulate the type of heating oil they can burn in their boilers, and another 300 or so facilities that hold general permits for onsite emergency electric power generators that may use heating oil. After Feb. 1, 2019, these facilities will not be allowed to burn anything but ultra-low sulfur fuels, so during the six months between now and then, DES expects they'll want to use up any existing, higher sulfur fuel oil that's currently in any of their storage tanks.

Going forward, DES also advises that permit holders obtain "delivery tickets" from their suppliers for every new delivery that show the sulfur limits have been met, and that they retain these delivery tickets for at least five years to demonstrate their compliance during a DES inspection.

And while they're making sure they know what's currently inside their fuel oil storage tanks, whether or not they have air emissions permits, these users are well-served to take a few minutes to make sure the tanks themselves meet all regulatory requirements. For example, most tanks that are not used exclusively for heating oil purposes must be registered with DES, and all oil burning facilities and tanks are subject to state and local fire codes. Even small "day tanks" that temporarily hold fuel before it enters a boiler are subject to regulation and have been a recent source of concern to DES, the state fire marshal, and local fire departments.

Homeowners: Residential heating oil users have no compliance obligations under the new law and aren't subject to the Feb. 1, 2019 deadline for burning all of their higher sulfur fuels, but that doesn't mean they should ignore their oil storage tanks.

Homeowners do themselves a big favor by regularly checking their oil tank and piping for any leaks, asking their dealer about equipment or additives to help prevent tank corrosion, and making sure the tanks and pipes are protected against rupture by snow sliding off a roof or being struck by a vehicle. Regardless of its sulfur content, any accidental spill of heating fuel can cause major environmental and structural damage and cost a bundle in cleanup charges.

This new law's attempt to ensure that the air will be clearer and healthier due to reduced sulfur dioxide levels in heating oils is good news for every New Hampshire resident and our environment. It's also going to be even better news for everyone who owns an oil storage tank and takes this as an opportunity to "breathe easier" by ensuring that their tank is safely storing their new, cleaner-burning, ultra-low sulfur heating fuel.

Tom Burack is an attorney and shareholder at Sheehan Phinney, a fellow of the American College of Environmental Lawyers, and served as the commissioner of the New Hampshire Department of Environmental Services from 2006 through 2016. NH Legal Perspective is a biweekly column sponsored by Sheehan Phinney Bass & Green PA. This column does not provide legal advice. We recommend that you consult an attorney for specific guidance on legal questions.

Friday, November 22, 2019
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