Inside The Capitol: A Battle to Breathe

John and Bonnie Lichak’s kitchen table is covered with stacks of paperwork. Each pile represents a chapter in their nine year battle with local, state and federal government agencies over what they call their neighbor’s “smoke-belching wood boiler.”

Conventional wood boilers aren’t unusual in upstate New York, where wood is cheap and abundant. According to NYSERDA, the New York State Energy Research and Development Authority, a wood boiler, or hydronic heater, has a firebox surrounded by a water jacket. Wood is burned inside the firebox and heats the water, which is then circulated by pipes to the heat distribution system (radiators) of the home. There are different boiler designs for use outdoors and indoors.

When the Lichaks moved to the Village of East Nassau in rural Rensselaer County in 1985, they had never heard of a wood boiler. In 2002, when new neighbors moved in next door, the Lichaks quickly became educated.

“What happened? We introduced ourselves. We were friendly. Then in 2004 [they] installed an outdoor wood boiler,” recalls Bonnie Lichak.

Outdoor wood boilers are designed to burn wood and some other fuels, but unlike gasification boilers, wood stoves or fireplaces, conventional wood boilers burn at very low temperatures, allowing the wood to smolder and smoke. The result for the Lichaks was that they started getting smoked out of their home.

Their health suffered. They stopped using their pool. Raking leaves became difficult. To address the issue, they contacted an alphabet soup of state and federal agencies including the DEC, EPA, NYSERDA, DOH and DOS. (Each agency has its own designated pile on the Lichaks’ kitchen table.) The fight became Bonnie’s second full-time job. The family gave over their weekends and their evenings to the cause.

To give you a sense of how long the Lichaks have waged this battle, some of the paperwork goes back to when Eliot Spitzer was attorney general.

The battle also became personal. The son of the neighbor with the wood boiler posted a threatening note on a YouTube page featuring Bonnie Lichak’s 2010 testimony at a DEC hearing.

According to the Lichaks, he also called their daughter “a slut.”

“She was 11,” says Bonnie Lichak.

The neighbors refused to speak with a reporter.

In 2010, after a multiyear battle, the neighbor was forced to remove his outdoor wood boiler by the New York State Department of Environmental Conservation.

On Feb. 2 of that year the DEC sent an Order on Consent stating the boiler would have to be shut down by April.

Bonnie Lichak describes the days leading up to the shutdown.

“[They] burned anything and everything. There was blue smoke and green smoke. Our neighbor Mr. Hamilton came to the top of the hill to look because he no doubt thought our house was on fire because of the amount of smoke. We endured it because we thought the nightmare was finally over.”

It wasn’t. The Lichaks’ victory was short-lived.

“Now they have an indoor wood boiler,” Bonnie Lichak said. “A Harman Trident SF-160. It cycles on and off because it has a damper. It’s bad. It makes ya sick.”

The DEC informed the Lichaks that it doesn’t have the authority to regulate indoor wood boilers.

A study done for NYSERDA in 2008 reported that residential wood smoke is a significant source of pollution in many rural areas of the United States, contributing over 90% of total carbon-containing particulate emissions in rural areas of New York.

Adam Acquario, Deputy Mayor of East Nassau, confirms the Lichaks have a legitimate complaint. “It is an issue for them,” he says. “Absolutely.”

The Lichaks are frustrated, wondering why none of the regulatory agencies they have contacted will take action.

Of their two state representatives, only one has been responsive: State Sen. Kathy Marchione. She has requested information on the Lichaks’ situation from the DEC.

Assemblyman Steve McLaughlin’s office never responded to this reporter’s repeated calls.

Should anyone decide to tackle the issue, there is a legislative fix.

“There oughta be a law like the laws that Oregon and Washington have to hold wood boilers to the same standards as wood stoves. The EPA has a loophole, which they haven’t closed in 17 years. If New York State would just pass a law like those other states have done, other people wouldn’t have to go through what we’ve gone through, ” says Bonnie Lichak.

In 2011 the New York State DEC enacted stricter air pollution regulations for new outdoor wood furnaces. But indoor wood boilers like the one plaguing the Lichaks weren’t addressed. The new regulations also allowed previously installed outdoor wood boilers to continue being used.

“To have the [DEC] Air Resources staff talk about my neighbor’s economics versus the environment is astounding to me. DEC caused a lot of economic suffering by all [its] inability to promulgate health protective public policy,” Lichak wrote. “It is shameful.”

It is also legal.

Bill Cooke of the Citizens Campaign for the Environment shares one possible explanation. “It’s legal because [wood boiler manufacturers] have good lobbyists.”

One of those lobbyists is the New York Farm Bureau. Policy Director Jeff Williams says the Lichaks’ situation is unusual. “There are hundreds, if not thousands, of outdoor wood boiler owners who live on large tracts of land, and they are not causing a problem for anyone, and they are heating their house for free.”

When presented with the Lichaks’ dilemma, Williams was sympathetic, but he placed blame for their predicament on the DEC’s doorstep.

“First of all, I think they do have the authority for any air quality problems in the state … We don’t want to see anyone have health impacts. One of the things we do agree with the environmentalists on—that report notwithstanding—is that DEC’s staffing needs to increase for not only this but a whole host of other staffing issues that we see would help the environment and farming in the state.”

Perhaps surprisingly, the Albany-based lobbyist for a large wood boiler company admits that the units cannot be installed just anywhere. Philip H. Gitlen, Esq. is the co– managing partner in the Albany law firm of Whiteman Osterman & Hanna, and outside counsel to Central Boiler. Gitlen states that the industry must rely on the good sense of the people who purchase their products.

“Central Boiler requires that [people who buy wood boilers] acknowledge what the local requirements are on setbacks, on installation, on locations and the like, and that they represent and warrant to the company that they are going to comply with them.”

For some environmentalists like Citizens Campaign’s Bill Cooke, there is no middle ground.

“The truth is that wood boilers are bad for people downwind. We’re talking about heating the way they did 10,000 years ago!” Comparing a wood stove and wood boiler is like comparing a Prius and a Humvee, Cooke says.

But Gitlen argues if you need more than one wood stove, a single state-of-the-art wood boiler would be less polluting to the environment.

The regulations are murky, but Gitlen, Williams and the Lichaks all believe the DEC has the authority to shut down the offending wood boiler if it chooses to flex its muscles; the agency is simply choosing not to do so. At the same time there is a sense that DEC is in a holding pattern, waiting for long-delayed EPA regulations for wood boilers. If that’s the case, the agency isn’t alone in waiting.

“Soot pollution is linked to long-term respiratory disease,” said Peter Iwanowicz, a former DEC commissioner under Gov. David Paterson who is now director of the Healthy Air Campaign with the American Lung Association. “It can be a respiratory irritant for people who have lung disease now, like kids who have asthma. And if you have underlying heart disease, the science says that a couple hours of exposure to heavy soot emissions could trigger a second heart attack and kill you.”

Iwanowicz is among those experts who contend that wood boilers burn less efficiently than wood stoves or even fireplaces, so the quantity of pollution they emit is much higher. He also speculates that some owners may burn illegal substances— like tires and garbage—since they can do so in the privacy of their own yards.

“That’s a problem,” says Iwanowicz. “The ALA has filed a notice of intent to sue EPA to get at that very issue federally because we don’t see states acting fast enough. EPA is supposed to update standards every eight years. They haven’t done it in nearly a quarter of a century, so we’re getting ready to take action on all these devices: wood stoves, indoor versions of these devices and, of course, outdoor ones. It’s time to clean them up.”

The Lung Association isn’t alone in this effort. New York’s attorney general and seven others states’ AGs have also put the EPA on notice that they want standardized laws governing residential wood burning heaters. They will decide whether to take action against the EPA in the first week of October.

Bonnie Lichak doesn’t want to get her hopes up.

“Nine years of bureaucratic nonsense. Multiple levels of government. Laws they will not enforce. We hired a lawyer for the outdoor wood boiler and consulted other people on the indoor unit. We simply do not have the money they want to do air studies and go to court. We have been advised it could cost as much as $60,000. So we are just trying to get government to do its job.”

The fall foliage is just about at peak. For most of us this season is one of the joys of living in the northeast. For the Lichaks, their annual battle to breathe is just a few weeks away.

Susan Arbetter (@sarbetter on Twitter) is the Emmy Award-winning news director for WCNY Syracuse PBS/NPR, and producer/host of The Capitol Pressroom syndicated public radio program.