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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 Environmental Protection Agency for Failure to Timely 

Review and Appropriately Revise the New 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 Health, Inc. (collectively, “Public Health and 

Environmental NGOs”) write to notify the Administrator of the Environmental Protection 

Agency (“Administrator” or “EPA”) of our intent to sue to enforce EPA’s nondiscretionary duty 

to review and appropriately revise the New Source Performance Standards (NSPS) for 

Residential Wood Heaters (Part 60, Subpart AAA of EPA’s regulations). 

Subpart AAA was promulgated twenty-five years 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 review 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 dangerous pollutants including particulate 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). 
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(CO), oxides of nitrogen (NOx), volatile organic compounds (VOCs) and an assortment of air 

toxics – all emitted close to the ground and, all too frequently, near neighborhoods and schools 

where they pose high risks of exposure. As these 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 disruptions to everyday life because of harmful 

wood smoke pollution. 

In 2012, several of our organizations signed public letters calling on EPA to update 

Subpart AAA to provide relief to the many Americans 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 Subpart AAA to establish rigorous and healthprotective standards for all important categories of new wood heaters, 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 action 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 been affected by wood smoke pollution. A brief 

description of the Public 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 Billings, 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. 
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Now in its second century, the American Lung Association is the leading organization 

working to save lives, improve lung health and prevent 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 enforce the Clean Air Act to ensure that all Americans can have 

air that is safe and healthy to breathe. The Lung Association also works to protect the public 

from harmful indoor air pollution, including woodsmoke. 

Clean Air Council is a non-profit environmental organization headquartered in 

Philadelphia, Pennsylvania. For more than 40 years, 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 members across the Commonwealth. 

 Environmental Defense Fund (EDF) works to link science, economics, and law to create 

innovative, equitable, and cost-effective solutions to the most urgent environmental problems. 

Protecting public health and the environment from harmful airborne pollutants, such as those 

emitted from wood heaters, is a core organizational mission, and EDF regularly participates in 

regulatory and judicial proceedings on air pollution policy at the federal and state level. 

 Environment and Human Health, Inc. (EHHI) is a non-profit organization composed of 

physicians, public health professionals and policy experts dedicated to protecting human health 

from environmental harms. Wood smoke is an air 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 toxics that significantly 

endanger public health and welfare.6

 Twenty-five years later, wood smoke remains an urgent 

threat – in part due to the proliferation of new forms of wood heaters, such as OWBs, that are 

unregulated under the current Subpart 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 and, indeed, required under section 111. 

A. Wood Smoke Pollution is a Pressing Public Health Problem 

Wood heaters are a diverse class of sources that include OWBs 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 wood smoke, and that these pollutants “are 

released at low heights in residential areas (resulting in relatively high levels of exposure to human populations) . . . 

.”). 
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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 heaters represent a large and growing source of 

airborne contaminants that directly endanger human health, including PM, CO, NOx, VOCs , 

polycylic aromatic hydrocarbons (PAH), and chlorinated dioxins. 9 These devices are one of the 

single largest direct sources of anthropogenic fine PM in the nation, emitting more than 340,000 

tons per year or more than 17 percent 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, Midwest, and Northeast. EPA has estimated that 

smoke from these devices contributes 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 York12 and Wisconsin13 has also found that 

residential wood combustion is responsible for potentially dangerous short-term “spikes” in fine 

PM concentrations, especially in rural areas. However, lack of monitoring in close proximity to 

homes and businesses in most places may actually 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 body 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/assessment-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 sales 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 Source 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 Inventory 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 PM2.5 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 PM2.5 concentrations exceeded the 24-hour NAAQS, and finding that wood smoke 

contributed as much as 63% of elevated PM2.5 concentrations). 14 U.S. EPA, Integrated Science Assessment for Particulate Matter (Final Report) EPA/600/R-08/139F, 2009. 
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wood combustion devices are associated with increased worsening of asthma and other 

respiratory problems, especially in young children.15 

The EPA recognized wood smoke, including residential 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 residential wood burning produced 40,000 metric tons 

of nitrogen oxides in 2002 (Table 2.2-1). The NOx ISA identified 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. Homes 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 carbon monoxide, as identified in both the EPA’s 

2010 Integrated Science Assessment for Carbon Monoxide18 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 from high-emission wood combustion devices 

accounts for a significant proportion of nationwide emissions of certain air toxics – including 

44% of total stationary and mobile emissions of polycyclic organic 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 Are 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 effects. These include increases in respiratory symptoms, 

decreases in lung function, visits to emergency departments, 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 Disease Registry (ATSDR). 2012. Toxicological profile for Carbon Monoxide.. 

Atlanta, GA: U.S. Department of Health and Human Services, Public Health Service. Web link: 

http://www.atsdr.cdc.gov/ToxProfiles/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/hlthef/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 polymorphism. Cancer Detect Prev. 30:412-422. 
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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 current 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 that a large number of both catalytic 

and non-catalytic wood stoves have far surpassed 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 significant 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 that 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 Development Authority (NYSERDA) found that a pelletfired hydronic heater compliant with European emission standards significantly outperformed 

three other American hydronic heaters. The European heater was able to serve the same daily 

heating demand as the other units while emitting approximately 94% less PM than the cleanest 

comparison unit (and over 99% less PM than the 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 Failure 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 devices and contemporary emission controls. At 

least once every eight years, section 111(b)(1)(B) requires that 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 Characterization 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). 
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comment rulemaking to “review and, if appropriate, revise” each NSPS.28 Such review must 

take into account “emission limitations and percent 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 Subpart 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 conclusion that, in any event, EPA could not reasonably reach given 

the evidence recited above. EPA’s performance of its nondiscretionary duty to review and 

appropriately revise Subpart AAA is long overdue, and therefore proper grounds exist for a 

citizen suit under section 304(a)(2) of the CAA.33 

III. Conclusion 

The Public Health and Environmental NGOs urge EPA to fulfill its mandatory duty under 

section 111(b) of the CAA by proposing and finalizing appropriate revisions to Subpart AAA 

without delay. If EPA fails to do so, we will file a complaint in United 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 unreasonably delayed the required completion of the 

review and revision of the NSPS (after the 180-day notice period provided in section 304(a)). As 

required by 40 C.F.R. § 54.3(a), the names and addresses of the parties 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 performance under section 7411 of this title . . . .”). 

29 Id. § 7411(b)(1)(B). 30 Id. 31 Standards of Performance for New Stationary Sources; New 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 still be nearly five years overdue. 33 42 U.S.C. § 7604(a)(2). 
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American Lung Association 

ATTN: Paul G. Billings 

1301 Pennsylvania Avenue, Suite 800 

Washington, DC 20004 

Clean Air Council 

ATTN: David Presley 

135 S 19th 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.