- 1 - BY CERTIFIED MAIL RETURN RECEIPT REQUESTED

August 1, 2013

Regina McCarthy Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW Mail Code: 4101M Washington, DC 20460

Re: Notice of Intent to Sue the Environmenta l Protection Agency for Failure to Timely Review and Appropriately Revise the Ne w Source Performance Standards (NSPS) for Residential Wood Heaters

Dear Administrator McCarthy:

Pursuant to section 304 of the Clean Air Act (CAA) 1 and Title 40, Part 54 of the Code of Federal Regulations, 2 the American Lung Association, Clean Air Council, Environmental Defense Fund, and Environment and Human Healt h, Inc. (collectively, “Public Health and Environmental NGOs”) write to notify the Admi nistrator of the Environmental Protection Agency (“Administrator” or “EPA”) of our inte nt to sue to enforce EPA’s nondiscretionary duty to review and appropriately revise the New Source Performance Standards (NSPS) for Residential Wood Heaters (P art 60, Subpart AAA of EPA’ s regulations).

Subpart AAA was promulgated twenty-five ye ars ago and has not been reviewed or revised since, despite EPA’s nondiscretionary duty under section 111 of the Clean Air Act to “review and, if appropriate, revise” each NSPS at least once every eight years. 3 EPA’s unlawful failure to carry out this revi ew and revision is imposing a severe and ongoing toll on public health and the environment, as explained in further detail below. Residential wood smoke contains a vast array of dange rous pollutants including particul ate matter (PM), carbon monoxide

1 42 U.S.C. § 7604(b)(2).
2 40 C.F.R. §§ 54.1-54.3.
3 42 U.S.C. § 7411(b)(1)(B).- 2 - (CO), oxides of nitrogen (NOx), volatile organi c compounds (VOCs) and an assortment of air toxics – all emitted close to the ground and, a ll too frequently, near neighborhoods and schools where they pose high risks of exposure. As th ese wood heating devices have proliferated, the Public Health and Environmental NGOs have received a large and growing volume of complaints from distressed families and communities who have experienced worsening illnesses and complications, reduced property values, and di sruptions to everyday li fe because of harmful wood smoke pollution.

In 2012, several of our organizations signe d public letters calling on EPA to update Subpart AAA to provide relief to the many Am ericans who are and will be affected by wood smoke pollution from new wood heaters. 4 Similarly, a large and geographically diverse group of state governments have also been urging EPA since 2005 to revise Subpart AAA – culminating in a resolution adopted by the Environmental Council of the States in August 2012 with the support of 44 states, the District of Columbia, and Puerto Rico. 5 In this Notice, we once again call on EPA to promptly review and revise S ubpart AAA to establish rigorous and healthprotective standards for all important categorie s of new wood heater s, including currently unregulated wood heaters such as outdoor wood boilers (OWBs), indoor wood boilers (IWBs), and indoor furnaces.

The time for action has long since passed. Should EPA fail to initiate a rulemaking within the notice period, we will file a civil actio n in United States District Court alleging that EPA has failed to fulfill its nondiscretionary duty to timely review and revise Subpart AAA. Such a suit will seek injunctive and declaratory relief and other appropriate remedies.

I. Parties

The organizations signing this Notice are committed to protecting public health and the environment, and have members who have b een affected by wood smoke pollution. A brief description of the P ublic Health and Environmental NGOs follows.

4 See Letter from 24 public health and environmental organizations to Gina McCarthy, EPA Assistant Administrator for Air and Radiation (Nov. 9, 2012); Letter from Paul B illings, Senior Vice President, American Lung Association to Gina McCarthy, Assistant Administrator for Air and Radiation (Nov. 15, 2012) (available upon request).
5 See Letter from New York Attorney General Eliot Spitzer to EPA Administrator Stephen L. Johnson, Petition for rulemaking under 42 U.S.C. § 7411(b)(1) Regarding Outdoor Wood Boilers , August 11, 2005; Letter from NESCAUM Executive Director Arthur Marin and WESTAR Executive Director Dan Johnson to EPA OAQPS Director Steve Page, Performance Standards for Wood -burning Devices , April 29, 2008; Letter from NESCAUM Executive Director Arthur Marin and WESTAR Executive Director Dan Johnson to EPA Administrator Lisa Jackson, New Source Performance Standard for Residential Wood Burning Devices, August 3, 2012; ECOS Resolution 12-3, Regarding New Source Performance Standards for Residential Wood Burning Devices , Approved August 28, 2012, Colorado Springs, Colorado.- 3 - Now in its second century, the American L ung Association is the leading organization working to save lives, improve lung health and pr event lung disease. Core to that mission is the Lung Association’s commitment to protect the public from unhealthy air pollution. The Lung Association acts to defend and enfo rce the Clean Air Act to ensure that all Americans can have air that is safe and healthy to breathe. The Lung Association al so works to protect the public from harmful indoor air po llution, including woodsmoke.

Clean Air Council is a non-profit envir onmental organization headquartered in Philadelphia, Pennsylvania. For more than 40 ye ars, the Council has fought to improve the air quality across Pennsylvania. The Council’s mission is to protect everyone’s right to breathe clean air, and the Council has memb ers across the Commonwealth.

Environmental Defense Fund (EDF) works to link science, economics , and law to create innovative, equitable, and cost-eff ective solutions to the most ur gent environmental problems. Protecting public health and the environment from harmful airbor ne pollutants, such as those emitted from wood heaters, is a core organizati onal mission, and EDF regularly participates in regulatory and judicial proceedings on air po llution policy at the fede ral and state level.

Environment and Human Health, Inc. (EHHI) is a non-profit organi zation composed of physicians, public health professi onals and policy expert s dedicated to protecting human health from environmental harms. Wood smoke is an ai r pollutant that is making many people in this country sick, and is therefore a focus of EHHI’s research and advocacy.

II. The Need for Rigorous and Health -Protective Revisions to Subpart AAA

As EPA recognized when it first acted to regulate wood heaters under section 111(b), wood heaters are a potent source of fine PM, CO , NOx, VOCs and air toxi cs that significantly endanger public health and welfare. 6 Twenty-five years later, wood smoke remains an urgent threat – in part due to the prol iferation of new forms of wood h eaters, such as OWBs, that are unregulated under the current S ubpart AAA. Given the harm wood smoke poses and the ready availability of technologies to reduce emissions from regulated and unregulated wood heaters, revision of Subpart AAA is appropriate a nd, indeed, required under section 111.

A. Wood Smoke Pollution is a Pressing Public Health Problem

Wood heaters are a diverse cla ss of sources that include OW Bs and IWBs (also known as hydronic heaters), furnaces, masonry heaters, and wood stoves; of these, only a subset of wood stoves are currently covered by Subpart AAA. Approximately 14 to 17 million such devices

6 See Standards of Performance for New Stationary Sources; Listing of Residential Wood Heaters for Development of New Source Performance Standards, 52 Fed. Reg. 5, 065 (Feb. 18, 1987) (noting increasing quantities of PM emissions from wood heaters, presence of CO and carcinogens in w ood smoke, and that these pollutants “are released at low heights in residential areas (resulting in re latively high levels of exposure to human populations) . . . .”).- 4 - were estimated to be in use in the United States in 2006. 7 Hydronic heaters in particular have rapidly increased in use in recent years, with annual sales growing ten-fold between 2000 and 2005 – a rate suggesting the installed number of wood boilers now numbers in the hundreds of thousands. 8

Uncontrolled and poorly-controlled wood heater s represent a large and growing source of airborne contaminants that directly endange r human health, including PM, CO, NOx, VOCs , polycylic aromatic hydrocarbons (PAH), and chlorinated dioxins. 9 These devices are one of the single largest direct so urces of anthropogenic fine PM in the nation, emitting more than 340,000 tons per year or more than 17 percen t of the national anthropogenic total. 10 Smoke from these devices represents an even larger share of PM pollution in areas of the country where they are commonly used, such as the Pacific Northwest, Mi dwest, and Northeast. EPA has estimated that smoke from these devices contri butes 25% of wintertime fine PM pollution in parts of New Hampshire and Wisconsin, and more than 50% of wintertime fine PM in Tacoma, Washington and Sacramento, California. 11

Regional and local monitoring in New York 12 and Wisconsin 13 has also found that residential wood combustion is res ponsible for potentially dangerous short-term “spikes” in fine PM concentrations, especially in rural areas. Ho wever, lack of monitoring in close proximity to homes and businesses in most places may act ually underestimate the population exposure—and the health impact—of elevated particles emitted by these devices. EPA highlighted the risks of such acute exposures in its most recent Integrated Science Assessment for Particulate Matter

. 14 Further, a substantial bo dy of scientific literature indicates that emissions from highly-polluting

7 Philip R.S. Johnson, In-Field Ambient Fine Particle Monitoring of an Outdoor Wood Boiler: Public Health Concerns, 12 Human & Ecol. Risk Assessment 1153, 1156 (2006) (Johnson 2006).
8 NESCAUM, Assessment of Outdoor Wood-Fired Boilers, Page 3-3 (2006). Available at: http://www.nescaum.org/documents/assessm ent-of-outdoor-wood-fired-boilers. See also New York State Office of the Attorney General, Smoke Gets in Your Lungs: Outdoor Wood Boilers in New York State, Page 5 (Mar. 2008) (estimating 22% annual growth rate in national OWB sa les for 2004-2007, and estimating that over 188,000 OWBs were installed from 1999 to 2007).
9 See, e.g., Gil Wood, Residential Wood Heaters New Sour ce Performance Standards (NSPS): Current Draft Revisions, Slide 4 (presentation dated Mar. 1, 2011) (Wood 2011); Gil Wood, Residential Wood Heaters New Source Performance Standards (NSPS): Public Outreach on Draft Proposed Rule, Slides 5-6 (presentation dated Feb. 9, 2012) (Wood 2012).
10 U.S. EPA, National Emissions Inventor y 2008 accessed on September 11, 2012.
11 Wood 2012, Slide 6.
12 See NYSERDA, 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 seven-county area of upstate New York, “very high spikes in woodsmoke concentrations” of over 100 micrograms per cubic meter were observed and that 26% of the monitored population was exposed to elevated residential woodsmoke); See also David R. Brown & Nancy Alderman, The Dangers to Health From Outdoor Wood Furnaces 16 (2010) (finding short-term levels of PM 2.5 that were between four times and nine times EPA’s 24-hour National Ambient Air Quality Standard in four homes located near outdoor wood boilers).
13 David Snyder, LADCO Midwest Wood Smoke Study: Grand Rapids Case Study 6-7 (Aug. 31, 2012) (finding “sustained periods” during which PM 2.5 concentrations exceeded the 24-hour NAAQS, and finding that wood smoke contributed as much as 63% of elevated PM 2.5 concentrations).
14 U.S. EPA, Integrated Science Assessment for Particulate Matter (Final Report) EPA/600/R-08/139F, 2009.- 5 - wood combustion devices are asso ciated with increased wors ening of asthma and other respiratory problems, especially in young children. 15

The EPA recognized wood smoke, including re sidential wood burning, as a source of nitrogen oxides in the 2008 Integrated Science Assessment of Oxides of Nitrogen—Health Criteria

. 16 The NOx ISA estimated that residen tial wood burning produced 40,000 metric tons of nitrogen oxides in 2002 (Table 2.2-1). The NOx ISA identifie d residential wood burning as a source of indoor air levels of nitrogen oxides. As discussed in the NOx ISA, the Yale Childhood Asthma Study measured indoor levels of NOx by heat source in homes of 888 nonsmoking mothers in Connecticut and Virginia. Home s with fireplaces had two-week average concentrations of 80 ppb NOx and homes with wood stoves had two-week average concentrations of 52 ppb NOx. 17

Wood smoke is a primary source of car bon monoxide, as identified in both the EPA’s 2010 Integrated Science Assessment for Carbon Monoxide 18 and the Agency for Toxic Substances and Disease Registry (ATSDR) 2012 Toxicological Profile of Carbon Monoxide

. 19
Carbon monoxide emissions from woodsmoke add to the outdoor levels of carbon monoxide, as well as increasing indoor concentrations. 20

EPA has also concluded that smoke fro m high-emission wood combustion devices accounts for a significant proporti on of nationwide emissions of certain air toxics – including 44% of total stationary and mob ile emissions of polycyclic organi c matter, and 62% of total PAH emissions, 21 many of which are known or probable human carcinogens. 22

B. Substantial Emission Reductions From New Wood Heaters Ar e Achievable

15 See, e.g., Luke P. Naeher et al., Woodsmoke Health Effects: A Review, 19 Inhalation Toxicology 67, 82-87 (2006) (reviewing studies of wood smoke exposure and health impacts) (Naeher 2006); Johnson 2006, 1154 (“Numerous studies have found that exposure to the concentrations and durations of wood smoke associated with residential wood burning can cause a variety of adverse respiratory e ffects. These include increases in respiratory symptoms, decreases in lung function, visits to emergency depa rtments, and hospitalizations”); Pernille Hogh Danielsen et al., Oxidative Stress, DNA Damage, and Inflammation Induced by Ambient Air and Wood Smoke Particulate Matter in Human A549 and THP-1 Cell Lines, 24 Chem. Res. Toxicol. 168 (2011).
16 U.S. EPA, Integrated Science Assessment for Oxides of Nitrogen-Health Criteria (Final Report) EPA/600/R08/071, 2008.
17 Triche EW, et al. 2005. Indoor heating sources and respiratory symptoms in nonsmoking women. Epidemiology

. 16(3): 377-384.
18 U.S. EPA, Integrated Science Assessment for Carbon Monoxide (Final Report) EPA/600/R-09/019F, 2010.
19 Agency for Toxic Substances and Dis ease Registry (ATSDR). 2012. Toxicological profile for Carbon Monoxide.. Atlanta, GA: U.S. Department of Health and Hu man Services, Public Heal th Service. Web link: http://www.atsdr.cdc.gov/T oxProfiles/tp201.pdf [Accessed: July 31, 2013].
20 Naeher 2006, 82-87.
21 Wood 2011, Slide 4.
22 EPA, Technology Transfer Network Air Toxics Website, Polycyclic Organic Matter (POM). Available at: http://www.epa.gov/ttn/atw/hlth ef/polycycl.html Center for Disease Control, Toxic Substances Portal: Polycyclic Aromatic Hydrocarbons (PAH) . Available at: http://www.atsdr.cdc.gov/toxfaqs/tf.asp?id=121&tid=25 Rybicki BA, et al. 2006. Prostate cancer risk from occupational exposure to polycyclic aromatic hydrocarbons interacting with the GSTP1 Ile105Val polymor phism. Cancer Detect Prev. 30:412-422.- 6 - Demonstrated and cost-effective technologies are available to significantly reduce wood smoke pollution from new wood heaters. As EPA is well aware, the state of Washington requires wood stoves and indoor wood boilers to meet PM emission standards that are approximately 40% more stringent than the curr ent Subpart AAA standards (which apply only to wood stoves). Most wood stoves on the market have now achieved compliance with the Washington standards. 23 Further, EPA’s own data shows th at a large number of both catalytic and non-catalytic wood stoves have far surpasse d the Washington standards, achieving PM emission rates of less than 1 g/hr. 24

EPA’s research has also demonstrated that hydronic heaters, which are unregulated under current Subpart AAA, are capable of significan t emission reductions. EPA’s list of hydronic heaters that qualify for its BurnWise “Phase 2” program, for example, shows that the cleanest unit achieves an emission rate th at is 88% cleaner than the minimum 0.32 lb/mmBTU level for participation in this voluntary program. 25 In addition, a June 2012 study prepared by EPA for the New York State Energy Research and Developm ent Authority (NYSERDA) found that a pelletfired hydronic heater compliant with European emission standards signif icantly outperformed three other American hydronic heaters. The Eur opean heater was able to serve the same daily heating demand as the other units while em itting approximately 94% less PM than the cleanest comparison unit (and over 99% less PM than th e worst-performing comparison unit). The European heater also emitted 92-93% less CO and 89-99% less polycyclic aromatic hydrocarbons, while using approximately 33-45% less fuel than the unregulated hydronic heaters. 26 This is consistent with other research indicating that European emission standards have driven dramatic improvements in PM emissions, CO emissions , and efficiency among European manufacturers of wood heaters. 27

II. EPA’s Inaction Constitutes a Failu re to Perform a Nondiscretionary Duty Under Section 111(b) of the CAA

EPA has indisputably failed to carry out its duty under section 111(b) of the CAA to update Subpart AAA to reflect new types of devi ces and contemporary emission controls. At least once every eight years, section 111(b)(1)(B) requires th at EPA undertake a notice-and-

23 See Washington Department of Ecology, Wood Stoves, Fireplaces, Pellet Stoves, and Masonry Heaters, http://www.ecy.wa.gov/programs/air/indoor_woodsmoke/wood_smoke_page.htm#Washingtons_wood_stove_requir
ements (describing Washington wood stove emission standards and providing lists of compliant wood stoves, pellet stoves, and indoor wood boilers).
24 See generally EPA, List of EPA Certified Wood Stoves (Mar. 15, 2013).
25 See generally EPA, Partners – Program Participation – List of Cleaner Hydronic Heaters, http://www.epa.gov/burnwise/owhhlist.html

. 26 NYSERDA, Environmental, Energy Market, and Health Char acterization of Wood-Fired Hydronic Heater Technologies S-11 to S-13, S-18 (June 2012).
27 See BioEnergy2020+ GmbH, European Wood Heating Technology Survey ES-2, ES-4 (NYSERDA, Apr. 2010).- 7 - comment rulemaking to “review and, if appropriate, revise” each NSPS. 28 Such review must take into account “emission limitations and percen t reductions achieved in practice,” in cases where such emission reductions exceed those required by NSPS regulations. 29 EPA may only avoid regular review of a NSPS if it determines that review is not appropriate “in light of readily available information on the efficacy of such standard.” 30

Subpart AAA was promulgated in February 1988. 31 Under the CAA, EPA was required to have reviewed and revised Subpart AAA in 1996, 2004, and 2012. Yet in the twenty-five years since promulgating Subpa rt AAA, EPA has not undertaken any notice-and-comment proceeding to review the scope or stringency of this NSPS. 32 Neither has EPA determined that review is not appropriate – a c onclusion that, in any event, EPA could not reasonably reach given the evidence recited above. EPA’s performan ce of its nondiscretionary duty to review and appropriately revise Subpart AAA is long overd ue, and therefore proper grounds exist for a citizen suit under secti on 304(a)(2) of the CAA. 33

III. Conclusion

The Public Health and Environmental NGOs ur ge EPA to fulfill its mandatory duty under section 111(b) of the CAA by proposing and fina lizing appropriate revi sions to Subpart AAA without delay. If EPA fails to do so, we will file a complaint in Un ited States District Court after the 60-day notice period provided in section 304(b)(2). In addition, we may – in the alternative – file a complaint alleging that EPA has unreas onably delayed the requir ed completion of the review and revision of the NSPS (a fter the 180-day notice period prov ided in section 304(a)). As required by 40 C.F.R. § 54.3(a), the names and addresses of the part ies serving this Notice are set forth below:

28 42 U.S.C. § 7411(b)(1)(B) (requiring that review and revision follow the same procedure “required by this subsection for promulgation of such standards”); see also id. § 7607(d)(1)(C) (requiring full notice and comment for “promulgation or revision of any standard of perfor mance under section 7411 of this title . . . .”).
29 Id. § 7411(b)(1)(B)

. 30 Id.
31 Standards of Performance for New Stationary Sources; Ne w Residential Wood Heaters, 53 Fed. Reg. 5,860 (Feb. 26, 1988).
32 In a 2011 notice in the Federal Register, EPA indicated that it last took action with respect to Subpart AAA on October 17, 2000. See New Source Performance Standards (NSPS) Review, 76 Fed. Reg. 65653, 65656 (Advance Notice of Proposed Rulemaking, Oct. 24, 2011). However, this action was a generic package of amendments to test methods referenced in multiple NSPS regulations, including Subpart AAA, and did not constitute a “review” of Subpart AAA under any reasonable construction of section 111(b)(1). See generally Amendments for Testing and Monitoring Provisions, 65 Fed. Reg. 61,744 (Oct. 17, 2000). Even if it were, EPA’s duty to review and, if appropriate, revise Subpart AAA would s till be nearly five years overdue.
33 42 U.S.C. § 7604(a)(2).- 8 - American Lung Association ATTN: Paul G. Billings 1301 Pennsylvania Avenue, Suite 800 Washington, DC 20004 Clean Air Council ATTN: David Presley 135 S 19 th Street Ste. 300 Philadelphia, PA 19103

Environmental Defense Fund ATTN: Tomás Carbonell 1875 Connecticut Ave., NW Sixth Floor Washington, DC 20009 Environment and Human Health, Inc. ATTN: Nancy Alderman 1191 Ridge Road North Haven, CT 06473

However, if you wish to discuss this matter, please contact the undersigned counsel at the address indicated below.

Respectfully submitted,

______________________________________ Timothy D. Ballo David S. Baron Earthjustice 1625 Massachusetts Ave., NW Suite 702 Washington, DC 20036 (202) 667-4500 tballo@earthjustice.org dbaron@earthjustice.org

Counsel for American Lung Association, Clean Air Council, Environmental Defense Fund, and Environment and Human Health, Inc.