Legislative committee puts low-emission water heater rule on ice

SALT LAKE CITY — A committee of Utah lawmakers killed a new air quality rule Friday after homebuilders and real estate groups told them it illegally makes changes to the state building code — a function that rests solely with the Utah Legislature.

The rule, which would not have taken effect until Nov. 1, 2017 for areas along the Wasatch Front, would have required low-emission natural gas water heaters to be installed when homeowners need to replace the existing appliance in their home, or in new construction.

Other areas of the state would have been phased in at later dates.

The Utah Air Quality Board passed the rule requiring ultralow nitrogen oxide-emitting natural gas water heaters at a September meeting after outreach to general contractor associations and big box home improvement stores. The rule is modeled after similar requirements already in place in California and Texas.

Board members, on recommendations from the Governor's Clean Air Action Team, adopted the rule as a way to reduce nitrogen oxide emissions — which are a precursor to the formation of fine particulate pollutants, or PM2.5, that create the hazardous air quality conditions when temperature inversions set in.

According to the Utah Division of Air Quality, ultralow emitting water heaters emit as much as 75 percent fewer pollutants than their conventional counterparts.

Bryce Bird, division director, said ultimately, a move to these style of water heaters would reduce 2,700 tons of emissions from the state's airshed. Air quality regulators predict, too, that as cleaner cars replace older fleets on the roadways, homes and businesses will become the chief culprit of Utah's pollution problem.

But Taz Biesinger, with the Utah Homebuilders Association, told the Administrative Rules Committee on Friday that the new air quality rule clearly conflicts with state law that says only the Utah Legislature has the authority to make changes to the state building code.

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"The building codes are under the purview of the state Legislature," he said. "Any amendments making it more restrictive or less restrictive must be done through the legislative process."

Much of Friday's discussion over the rule turned on air quality concerns and how the rule addresses one aspect of the pollution problem that keeps the most populated areas of the state out of compliance with federal Clean Air standards.

"This does not blow the building code out of the water," said Senate Minority Leader Gene Davis, D-Salt Lake City. "It means that we can all expect that going forward, when we replace our gas water heaters at home, that they will be of a higher standard, clean-air wise."

Sen. Howard Stephenson, chairman of the Administrative Rules Committee, kept steering the debate back to the issue raised by industry associations: the rule's alleged conflict with state law.

Christine Gilbert, attorney for the legislative committee, said it is clearly within the Air Quality Board's legal authority to adopt rules regulating emissions from "all" sources, which includes appliances installed in homes.

Bird added, "The Air Quality Board's position is that this rule only affects emission limits and does not impact the building code. Our mission and mandate is to establish limits for equipment and certainly this falls under this authority."

But Biesinger said the rule encompasses what type of material can be put into a home, which is what the building code covers.

"It is the same as requiring granite being used over formica or wood floors over carpet."

A majority of lawmakers agreed the rule appears to be in conflict with legislative authority to make changes to the state's building code — even though the Air Quality Board clearly has the legal right to regulate emissions from any source, according to rulemaking language.

"The rule itself is in compliance. … Anything that has some sort of emissions would include stoves, dryers, heaters, as far as emissions are concerned. And the Air Quality Board can pass more stringent rules than the building code," said Rep. R. Curt Webb, R-Logan. "It is not about whether it is right or wrong, it is about whether we let this agency make that determination, or if it is the Legislature."

Stephenson added that because the rule is in apparent conflict with the law governing building code changes, the issue should be addressed by a pair of legislative committees dealing with business and labor issues and environmental policy during the 2016 legislative session.

Rep. Carol Spackman Moss, D-Holladay, said she believes the Administrative Rules Committee was making the wrong decision on a clear issue.

"This (nitrogen oxide) emissions performance standard does not conflict with any building code requirement," she said, adding the rule addresses emission standards only.

Kevin Emerson, senior policy and regulatory associate with Utah Clean Energy, agreed.

"The building code is based on the structure and performance of a home. To me it is clear this is an issue that should be in the purview of the Air Quality Board, since the building code does not dictate the performance or the efficiency of an appliance that a contractor might install."

Emerson said those efficiency requirements are generally under federal government standards.

"I think it is a big missed opportunity. Using appliances that have reduced emissions to improve our air quality is an important step," he said. "It is a disappointing outcome."

The Administrative Rules Committee is sending a letter to the Business and Labor and Natural Resources, Agriculture and Environment committees asking them to address the conflict during the 2016 session.

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