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Thursday, December 26, 2013

Environment - "Gaps in State Law Allow Rural Indiana Couple to Suffer from Neighbors’ Outdoor Wood Boiler Use"

The ILB has a long list of entries, dating back to 2005, on the need to regulate outdoor wood-fired boilers in Indiana. The most recent ILB entry is from May 14, 2011, and is headed "New IDEM rule forbids summer use of some outdoor wood boilers (OWB)."

Earlier this month the Hoosier Environmental Council issued a news release about a lawsuit it has filed on behalf of a Rush County couple, saying that rule is not adequate. Some quotes:

The Hoosier Environmental Council has filed a lawsuit in Rush County Superior Court against Christopher and Shelley Nicholson, who have been operating an Outdoor Wood Boiler (OWB) within literally feet of their elderly neighbors’ property, resulting in excessive and noxious smoke that has negatively impacted the health of those neighbors.

Mable and Gary Bowling are elderly neighbors suffering considerably from the smoke that is emitted from the Nicholsons’ OWB, located just 10 feet from the Bowlings’ property line and 30 feet from the Bowlings’ home. Mable Bowling, according to her physician, has developed chronic bronchitis due to the Nicholsons’ OWB use. She’s been hospitalized due to the bronchitis, and receives ongoing medical treatment for asthma, a pre-existing condition her doctor states is greatly exacerbated from exposure to the harmful smoke that comes from her neighbors’ OWB. In addition to ongoing health impacts, Gary and Mable are unable to go outside, sleep comfortably, have company or enjoy family gatherings, and are fearful and despondent due to the constant invasion of noxious smoke and fumes from the Nicholsons’ OWB.

The Bowlings have asked repeatedly for the Nicholsons to stop using their OWB, asked the Nicolsons to move the OWB to another, less impactful location on the Nicolsons’ four-acre property, and called upon numerous local and state government agencies and law enforcement to intervene -- agencies including the Rush County Prosecutor’s Office, the Rush County Plan Commission, the Indiana Department of Environmental Management, the State Department of Health, and the Indiana Attorney General’s office, to name a few. All have declined to take action pointing to Indiana’s existing OWB regulation. The OWB regulation, however, does not prohibit use of the oldest, most polluting OWBs, like the Nicholsons’ OWB, and the OWB regulation does not prohibit nuisances caused by OWBs. Without regulatory protection, the problem has not been resolved, leaving the Bowlings -- represented by the Hoosier Environmental Council -- with no choice but to pursue legal action. * * *

While other states, cities and towns across the country have moratoriums on OWBs, or have banned them altogether, the state of Indiana enacted inadequate safeguards from OWBs in 2011.

According to Ferraro, a preliminary injunction ordering the Nicholsons to stop using the OWB while the case is being litigated, has been also been filed with the Rush County Superior Court.

Here is the complaint, filed Oct. 29th in Rush County. A motion for a temporary restraining order was filed Nov. 15th in the same court.

Posted by Marcia Oddi on December 26, 2013 09:18 AM
Posted to Environment