Woodboiler Court Filing

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Woodboiler Court Filing

Postby Wilberforce » Wed Oct 09, 2013 8:16 pm

Woodboiler Court Filing
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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STATE OF NEW YORK,
Office of the Attorney General
Environmental Protection Bureau
The Capitol
Albany NY 12224
STATE OF CONNECTICUT
Office of the Attorney General
55 Elm Street, P.O. Box 120
Hartford CT 06141
STATE OF MARYLAND
Office of the Attorney General
Department of Environment
1800 Washington Blvd., S. 6048
Baltimore MD 21230
COMMONWEALTH OF MASSACHUSETTS COMPLAINT
Office of the Attorney General
Environmental Protection Division
1 Ashburton Pl., Rm. 1813 Index No. _______
Boston MA 02108
STATE OF OREGON
Department of Justice
Natural Resources Section
1515 Southwest Fifth Ave., S. 410
Portland OR 97201
STATE OF RHODE ISLAND
Department of the Attorney General
150 S. Main St.
Providence RI 02903
STATE OF VERMONT
Office of the Attorney General
109 State St.
Montpelier VT 05609-1001, and
PUGET SOUND CLEAN AIR AGENCY
1904 Third Ave., S. 105
Seattle WA 98101,
Plaintiffs,
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– against –
GINA McCARTHY, as Administrator of the
Environmental Protection Agency
Ariel Rios Bldg.,
1200 Pennsylvania Ave., NW,
Washington DC 20460, and
ENVIRONMENTAL PROTECTION AGENCY,
Ariel Rios Bldg.,
1200 Pennsylvania Ave., NW,
Washington DC 20460,
Defendants.
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Plaintiffs New York, Connecticut, Maryland, Massachusetts, Oregon, Rhode Island,
Vermont and the Puget Sound Clean Air Agency (collectively, the “States”) bring this action to
compel Gina McCarthy, as Administrator of the Environmental Protection Agency (“EPA”), and
the EPA to comply with the nondiscretionary duty under the Clean Air Act (“Act”) to review and
revise as necessary the New Source Performance Standards (“NSPS”) for particulate matter
pollution from new residential wood heaters. The States seek an injunction requiring EPA to
promptly propose and take final agency action on the NSPS by dates certain.
JURISDICTION AND VENUE
1. This Court has jurisdiction of this action pursuant to section 304(a)(2) of the Act,
42 U.S.C. § 7604(a)(2), which authorizes any person, after duly giving notice, to commence a
citizen suit against EPA where the Administrator has failed to perform a nondiscretionary duty
under the Act.
2. Venue in this Court is proper pursuant to 28 U.S.C. § 1391(e) because a substantial
part of the events or omissions giving rise to the States’ claim occurred in this judicial district, as
the Administrator’s failure to perform her nondiscretionary duty to timely review and revise as
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necessary the NSPS for wood-burning devices occurred in this district, and EPA maintains an
office in this district.
PARTIES
3. Plaintiff State of New York is a sovereign entity that brings this action on behalf of its
citizens and residents.
4. Plaintiff State of Connecticut is a sovereign entity that brings this action on behalf of
its citizens and residents.
5. Plaintiff State of Maryland is a sovereign entity that brings this action on behalf of its
citizens and residents.
6. Plaintiff Commonwealth of Massachusetts is a sovereign entity that brings this action
on behalf of its citizens and residents.
7. Plaintiff State of Oregon is a sovereign entity that brings this action on behalf of its
citizens and residents.
8. Plaintiff State of Rhode Island is a sovereign entity that brings this action on behalf of
its citizens and residents.
9. Plaintiff State of Vermont is a sovereign entity that brings this action on behalf of its
citizens and residents.
10. Plaintiff Puget Sound Clean Air Agency is a local air pollution control agency that
regulates air pollution in King, Kitsap, Pierce and Snohomish counties in the state of
Washington, including the cities of Seattle and Tacoma.
11. Each of the plaintiffs is a “person” as defined in the applicable provision of the Act,
42 U.S.C. § 7602(e).
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12. Defendant Gina McCarthy is Administrator of EPA and is sued in her official
capacity. The Administrator is charged with implementation and enforcement of the Act,
including timely reviewing and as necessary revising the NSPS for wood-burning devices.
13. Defendant EPA is an executive agency of the federal government charged with
implementing and enforcing the Act in coordination with the States.
STATUTORY AND REGULATORY FRAMEWORK
14. Section 111 of the Act requires EPA to develop air pollution control performance
standards that apply to specific categories of stationary sources. Section 111(b) requires the
Administrator to list categories of stationary sources that the Administrator finds “cause[], or
contribute[] significantly to, air pollution which may reasonably be anticipated to endanger
public health or welfare.” 42 U.S.C. § 7411(b)(1)(A). The Administrator then must establish
“standards of performance” for emissions of air pollutants from new and modified sources within
each such category. Id. § 7411(b)(1)(B). These standards of performance must “reflect[] the
degree of emission limitation achievable through the application of the best system of emission
reduction which (taking into account the cost of achieving such reduction and any nonair quality
health and environmental impact and energy requirements) the Administrator determines has
been adequately demonstrated.” Id. § 7411(a)(1).
15. Pursuant to section 111(b)(1)(B) of the Act, EPA must, “at least every eight years,
review and, if appropriate, revise such standards” following the procedure required for
promulgation of such standards unless it determines that such a review is not appropriate in light
of readily available information on the efficacy of the standard. Id. § 7411(b)(1)(B). As part of
its review, EPA is required to take into account “emission limitations and percent reductions
achieved in practice.” Id.
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FACTUAL BACKGROUND
A. Wood Smoke Pollution
16. Wood smoke contains several pollutants, including fine particulate matter (PM2.5),
carbon monoxide (CO), and polycyclic aromatic hydrocarbons (PAHs). These pollutants are
linked to adverse coronary and pulmonary health impacts, including premature death.
17. In its 2013 document entitled Strategies for Reducing Residential Wood Smoke,
(“2013 Strategies Document”), EPA described some of the public health concerns with wood
smoke: “Residential wood smoke can increase particle pollution to levels that cause significant
health concerns (e.g., asthma attacks, heart attacks, premature death). Wood smoke causes many
counties throughout the U.S. to either exceed the national health-based standards for fine
particles, or places them on the cusp of exceeding the standards.” Several studies have found
that residential wood combustion is responsible for potentially dangerous short-term spikes in
PM2.5 concentrations, especially in rural areas. See, e.g., New York State Energy Research &
Development Authority, No. 10-02, Spatial Modeling and Monitoring of Residential Woodsmoke
Across a Non-Urban Upstate New York Region xvii-xix, 4-1 (Feb. 2010) (finding that in a sevencounty
area of upstate New York, “very high spikes in wood smoke concentrations” of over 100
micrograms per cubic meter were observed and that 26 percent of the monitored population was
exposed to elevated residential wood smoke), available at http://www.nyserda.ny.gov. High levels of
airborne fine particulates can also adversely affect public welfare, including impairing visibility
and damaging vegetation.
18. According to EPA, fine particulate matter emitted from wood-burning devices
comprised 13 percent of all PM2.5 pollution in the U.S. in 2008. EPA has also estimated that
smoke from these devices can represent a large percentage of this pollution regionally, including
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25 percent of wintertime PM2.5 pollution in parts of New Hampshire and Wisconsin, and more
than 50 percent of wintertime PM2.5 in Tacoma, Washington and Sacramento, California.
B. EPA’s Failure to Timely Review and Revise the NSPS for Residential Wood Heaters
Obsolete Standards for Wood-Burning Devices
19. In 1988, EPA determined that particulate matter emitted from residential wood
heaters causes or contributes significantly to air pollution that may reasonably be anticipated to
endanger public health or welfare and therefore established NSPS for new and modified
residential wood heaters. See 53 Fed. Reg. 5373 (Feb. 26, 1988); 40 C.F.R. Part 60, Subpart
AAA. Depending on the wood heater’s components, the 1988 standards limit particulate matter
emissions to either 4.1 grams per hour (“g/hr”) or 7.5 g/hr. 40 C.F.R. § 60.532(b)(1) & (2).
Since EPA’s adoption of the 1988 standards, three mandatory eight-year review periods have
come and gone (1996, 2004, 2012) yet the agency has failed to complete even one mandatory
eight-year review of those NSPS or promulgated a determination that such a review is not
appropriate in light of readily available information on the efficacy of the standards.
20. Since 1988, demonstrated and cost-effective design technologies that enable
residential wood heaters to achieve substantially increased burning efficiencies and significantly
reduced emissions of PM2.5 and other pollutants have become available. As a result, the current
NSPS no longer reflect the application of the best system of emission reduction. EPA’s List of
EPA Certified Wood Stoves contains dozens of available wood heaters that emit fewer than half
of the emissions allowed under EPA’s 1988 standard. Several states have regulations requiring
wood heaters to achieve standards significantly more stringent than EPA’s standard. For
example, Washington’s standard limiting PM2.5 emissions from these devices is 40 percent more
stringent.
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Lack of Standards for Wood Boilers
21. When it established the residential wood heaters NSPS in 1988, EPA exempted
indoor and outdoor wood boilers (also known as “hydronic heaters”) from the standards. See 40
C.F.R. §§ 60.530(h)(2) & 60.531 (exempting and defining “boilers”). Although EPA
subsequently developed a voluntary program pursuant to which manufacturers of wood boilers
that achieve relatively lower emission rates may be recognized as “EPA qualified,” the
exemption of these boilers from NSPS requirements remains in place.
22. The popularity and use of these unregulated boilers has grown since 1988. Their
emissions are of particular concern to the Northeast, Midwest and Northwest. EPA estimates
that outdoor wood boilers will produce more than 20 percent of wood burning emissions by
2017.
23. In 2008, the New York Attorney General’s Office issued a report finding that
outdoor wood boilers were becoming increasingly common and can emit far more PM2.5 than
other types of residential heaters -- about 12 times as much as EPA certified wood stoves, 1,000
times as much as oil furnaces, and 1,800 times as much as gas furnaces. A 2006 report by the
Northeast States for Coordinated Air Use Management further found that one outdoor wood
boiler can emit as much fine particulate matter as four heavy duty diesel trucks on a grams per
hour basis. NESCAUM, Assessment of Outdoor Wood-Fired Boilers (March 2006) at vii.
24. EPA has stated in published documents that wood smoke from wood boilers have the
same pollutants as smoke from wood heaters currently regulated under the NSPS, and that wood
boilers may emit such pollutants in even greater quantities. See e.g., 2013 Strategies Document
at 4-5, 15; EPA, Emissions from Outdoor Wood-Burning Residential Hot Water Furnaces,
Project Summary (Feb. 1998).
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25. Similar to newer wood heaters, wood boilers can be designed to achieve much better
emission rates. For example, EPA’s website lists 11 outdoor wood boilers that emit less than
half of the Agency’s Phase 2 voluntary program standard of 0.32 pounds per million British
thermal units (lb/mmBTU), and another seven outdoor wood boilers typically emit between 0.04
to 0.08 lbs/mmBTU. See EPA, Partners – Program Participation – List of Cleaner Hydronic
Heaters, available at: http://www.epa.gov/burnwise/owhhlist.html.
C. Notice of Violations of Nondiscretionary Duties Under the Clean Air Act
26. On August 1, 2013, the States sent a citizen suit notice letter by certified mail to the
EPA Administrator notifying her of the violations of nondiscretionary duties under 42 U.S.C.
§ 7411(b)(1)(A) and (B), and of the States’ intention to commence a lawsuit if EPA did not
correct the violations within 60 days.
27. More than 60 days have passed since EPA’s receipt of the notice letter and EPA has
not completed a rulemaking reviewing, and as appropriate, revising the NSPS for residential
wood heaters.
CLAIM FOR RELIEF
(Failure to Perform Nondiscretionary Duty to Timely
Review, and as Necessary, Revise NSPS for Residential Wood Heaters)
28. Despite the expiration of three mandatory eight-year statutory deadlines for the
Administrator to complete the required notice-and-comment rulemaking to review the NSPS for
residential wood heaters and make any necessary revisions, the Administrator has failed to
perform this nondiscretionary duty.
29. In light of EPA’s own findings subsequent to the 1988 standards regarding the
adverse health impacts from wood smoke pollution emitted by unregulated wood boilers and the
widespread availability of less-polluting boilers, the Administrator was required as part of her
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mandatory review of the residential wood heaters NSPS to revise the NSPS to address air
pollution from unregulated wood boilers.
30. The Administrator’s failures to timely complete review and promulgate any
necessary revisions to the NSPS for residential wood heaters violates 42 U.S.C. § 7411(b)(1)(A)
and (B), and continue to this day.
31. The violations constitute “failure[s] of the Administrator to perform any act or duty
under this chapter which [are] not discretionary with the Administrator” under 42 U.S.C.
§ 7604(a)(2).
32. The delay caused by the Administrator’s failures has harmed and continues to harm
the States by delaying the adoption and implementation of more protective NSPS for residential
wood heaters that will result in cleaner and healthier air in the States, benefitting the health and
welfare of their citizens.
REQUESTED RELIEF
WHEREFORE, the States respectfully request that this Court enter judgment against
Defendants as follows:
A. Declaring that Defendants are in violation of 42 U.S.C. § 7411(b)(1)(A) and (B)
of the Act for failing to timely review, and as necessary, revise the NSPS for residential wood
heaters;
B. Enjoining Defendants to promptly complete review, propose, and promulgate
necessary revisions to the NSPS for residential wood heaters pursuant to 42 U.S.C.
§ 7411(b)(1)(A) and (B) by dates certain;
C. Awarding the States the costs of litigation, including reasonable attorneys’ fees;
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D. Retaining jurisdiction over this matter until such time as Defendants have
complied with their nondiscretionary duties under 42 U.S.C. § 7411(b)(1)(A) and (B); and
E. Such other relief as the Court deems just and proper.
Dated: October 9, 2013 Respectfully submitted,
FOR THE STATE OF FOR THE STATE OF
NEW YORK CONNECTICUT
ERIC T. SCHNEIDERMAN GEORGE JEPSEN
Attorney General Attorney General
By: /s/ Michael J. Myers By: /s/ Scott N. Koschwitz
________________________ ________________________
MICHAEL J. MYERS (#444688) SCOTT N. KOSCHWITZ
Assistant Attorney General Assistant Attorney General
Environmental Protection Bureau Office of the Attorney General
The Capitol P.O. Box 120, 55 Elm Street
Albany, NY 12224 Hartford, CT 06141
(518) 402-2594 (860) 808-5250
michael.myers@ag.ny.gov scott.koschwitz@ct.gov
FOR THE STATE OF FOR THE COMMONWEALTH OF
MARYLAND MASSACHUSETTS
DOUGLAS F. GANSLER MARTHA COAKLEY
Attorney General Attorney General
By: /s/ Mary E. Raivel By: /s/ Frederick D. Augenstern
________________________ ____________________________
MARY E. RAIVEL FREDERICK D. AUGENSTERN
Assistant Attorney General Assistant Attorney General
Office of the Attorney General Environmental Protection Division
Department of Environment Office of the Attorney General
1800 Washington Blvd., S. 6048 1 Ashburton Pl., Rm. 1813
Baltimore, MD 21230 Boston, MA 02108
(410) 537-3035 (617) 963-2427
mary.raivel@maryland.gov fred.augenstern@state.ma.us
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ELLEN F. ROSENBLUM PETER F. KILMARTIN
Attorney General Attorney General
By: /s/ Paul Garrahan By: /s/ Gregory S. Schultz
________________________ ____________________________
PAUL GARRAHAN GREGORY S. SCHULTZ
Assistant Attorney-in-Charge Special Assistant Attorney General
Natural Resources Section Department of Attorney General
Department of Justice 150 South Main Street
1515 SW Fifth Ave., S. 410 Providence, RI 02903
Portland, OR 97201 (401) 274-4400, ext. 2400
(971) 673-1943 gschultz@riag.ri.gov
paul.garrahan@doj.state.or.us
WILLIAM H. SORRELL PUGET SOUND CLEAN AIR
Attorney General of Vermont AGENCY
By: /s/ Thea Schwartz By: /s/ Laurie Halvorson
________________________ ____________________________
THEA SCHWARTZ LAURIE HALVORSON*
Assistant Attorney General Director – Compliance and Legal
Office of the Attorney General Puget Sound Clean Air Agency
109 State Street 1904 Third Ave., S. 105
Montpelier, VT 05609-1001 Seattle, WA 98101
(802) 828-2359 (206) 689-4030
tschwartz@atg.state.vt.us laurieh@pscleanair.org
*admission for pro hac vice to be filed

source
blog.timesunion.com/green/files/2013/10/WoodBoilerComplaint.pdf
• The Surgeon General has determined that there is no safe level of exposure to ambient smoke!

• If you smell even a subtle odor of smoke, you are being exposed to poisonous and carcinogenic chemical compounds!

• Even a brief exposure to smoke raises blood pressure, (no matter what your state of health) and can cause blood clotting, stroke, or heart attack in vulnerable people. Even children experience elevated blood pressure when exposed to smoke!

• Since smoke drastically weakens the lungs' immune system, avoiding smoke is one of the best ways to prevent colds, flu, bronchitis, or risk of an even more serious respiratory illness, such as pneumonia or tuberculosis! Does your child have the flu? Chances are they have been exposed to ambient smoke!
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