IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

AMERICAN LUNG ASSOCIATION, et al, 

 Plaintiffs, 

 and 

HEARTH, PATIO & BARBECUE 

ASSOCIATION, 

ATTN: Jack H. Goldman 

1901 North Moore St., Suite 600 

Arlington, VA 22209 

Proposed Plaintiff-Intervenor 

v. 

GINA MCCARTHY, in her official capacity as 

Administrator, U.S. Environmental Protection 

Agency, 

 Defendant. 

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 No. 13-cv-01555 (GK) 

[PROPOSED] COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1. The Hearth, Patio & Barbecue Association (“HPBA”) hereby commences this 

action against Gina McCarthy, in her official capacity as Administrator of the U.S. 

Environmental Protection Agency (“EPA”). Through this action, HPBA seeks to compel 

action by the Administrator in compliance with her nondiscretionary duty under section 

111(b)(1)(B) of the Clean Air Act (“CAA” or “the Act”) to complete review and revision of 

the Agency’s New Source Performance Standards (“NSPS”) for Residential Wood Heaters, 

found at 40 C.F.R. Part 60, Subpart AAA (the “Subpart AAA regulations” or “Subpart AAA 

standards”). 

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JURISDICTION AND VENUE

2. This Court has jurisdiction over this action pursuant to 42 U.S.C. § 7604(a)(2), 

which authorizes citizen suits concerning the Administrator’s failure to perform a 

nondiscretionary duty required by the CAA. This Court also has jurisdiction over this action 

and over the parties pursuant to 28 U.S.C. §§ 1331 and 1361. The relief requested is 

authorized under 42 U.S.C. § 7604 and 28 U.S.C. §§ 2201, 2202, and 1361. 

3. Venue in this Court is proper under 28 U.S.C. 1391(e) because the 

Administrator is principally located in the District of Columbia, and a substantial part, if not 

all, of the events or omissions giving rise to the claims asserted herein arose in this District. 

PARTIES

4. Plaintiff HPBA is a nonprofit trade association that represents the interests of the 

hearth appliance industry before state and federal regulators. Its members include 

manufacturers of a wide variety of hearth products, including traditional wood stoves as well as 

hydronic heaters, masonry heaters, and other types of appliances. As representative of the 

regualted industry, HPBA’s predecessor organization was actively involved in the regulatory 

negotiation proceedings that led to the intial wood heater standards adopted in 1988, and HPBA 

continues to be involved in efforts related to EPA’s review and planned revision of the Subpart 

AAA regulations. In the course of its these efforts, HPBA has, among other things, participated 

on voluntary consensus standards-setting boddies such as ASTM, collected industry information 

and data, conducted scientific research and analysis, and advocated for its members with respect 

to revised wood heater standards.

5. Plaintiff American Lung Association (“Lung Association”) describes itself as “a 

national voluntary health organization dedicated to saving lives by improving lung health and 

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preventing 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 

CAA and works to ensure that EPA establishes protective standards to reduce air pollution so 

that all Americans can have air that is safe and healthy to breathe. Now in its second century, 

the Lung Association pursues its mission through research, education and advocacy.” Compl. 

for Declaratory and Injunctive Relief [Dkt. 1], ¶ 6. 

6. Plaintiff Environmental Defense Fund (“EDF”) describes itself as “a national 

membership organization with over 300,000 members residing throughout the United States. 

EDF works to link science, economics, and law to create innovative, equitable, and costeffective solutions to the most urgent environmental problems. EDF is dedicated to carrying out 

the interests of its members in protecting and enhancing the quality of the human and natural 

environment by, among other things, advocating the deployment of effective pollution control 

technologies, the design of national policies to reduce air pollution, the use of adequate 

information and rigorous science in governmental decisions affecting the environment, and 

promoting the availability of sound public information regarding the state of human health and 

the environment, including the impacts and extent of air pollution. Protecting public health and 

the environment from harmful airborne pollutants is a core organizational mission, and EDF 

regularly participates in regulatory and judicial proceedings on air pollution policy at the federal 

and state levels.” Compl. for Declaratory and Injunctive Relief [Dkt. 1], ¶ 7. 

7. Plaintiff Clean Air Council (“Council”) describes itself as “dedicated to 

protecting the right to breathe clean air and has fought for more than 40 years to improve air 

quality across Pennsylvania. On behalf of its more than 8,000 members in the mid-Atlantic 

region, the Council works through public education, community advocacy, and government 

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oversight to ensure the enforcement of environmental laws. Reducing air emission from wood 

heaters by ensuring the most protective standards are adhered to and the best pollution control 

technology is applied is an organizational priority for the Council because of the rapidly 

increasing use of these systems in the mid-Atlantic and the impact of their emissions on the 

Council’s members.” Compl. for Declaratory and Injunctive Relief [Dkt. 1], ¶ 8. 

8. Plaintiff Environment and Human Health, Inc. (“EHHI”) describes itself as “a 

non-profit organization headquartered in Connecticut and composed of physicians, public health 

professionals and policy experts dedicated to protecting human health from environmental 

harms. EHHI works to communicate information about environmental health risks to those 

exposed and to public and private officials, thereby empowering individuals and groups to take 

control over the quality of their environment and protect themselves and their families, and to 

promote policies in all sectors that ensure the protection of human and environmental health. 

EHHI has published reports on the dangers of wood smoke and has advocated at all levels of 

government for the control of air pollution from wood heaters.” Compl. for Declaratory and 

Injunctive Relief [Dkt. 1], ¶ 9. 

9. HPBA and each of the above plaintiffs are “persons” as defined in the CAA. See 

42 U.S.C. § 7602(e). 

10. Defendant Gina McCarthy is Administrator of the EPA and is sued in her official 

capacity. The Administrator is charged with implementation and enforcement of the CAA, 

including the Act’s nondiscretionary requirement to timely review and revise as necessary the 

NSPS for Residential Wood Heaters. 

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STATUTORY AND REGULATORY BACKGROUND

11. Clean Air Act Section 111, 42 U.S.C. § 7411, requires EPA to establish 

standards of performance for categories of stationary sources. Specifically, under section 

111(b), the Administrator must 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). For each category of sources 

so listed, the Act requires the Administrator to establish specific standards of performance 

applicable to new sources within the category. Id. § 7411(b)(1)(B). Standards of performance 

established pursuant to section 111(b) 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). 

12. The Administrator is required by the CAA to review and, as appropriate, revise 

standards established under section 111(b). In specific, section 111(b)(1)(B) provides that the 

Administrator “shall, at least every 8 years, review and, if appropriate, revise such standards 

following the procedure required by this subsection for promulgation of such standards.” Id. § 

7411(b)(1)(B) (emphasis added). The Administrator is excused from such review only “if the 

Administrator determines that such review is not appropriate in light of readily available 

information on the efficacy of such standard.” Id. 

13. Because the Administrator’s review and revision of section 111(b) standards 

follows the same procedures for promulgation of such standards, such review and revision 

requires the Administrator to “afford interested persons and opportunity for written comment” 

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on proposed revisions. Id. “After considering such comments, [the Administrator] shall 

promulgate, within one year after such publication, such standards with such modifications as 

[the Administrator] deems appropriate.” Id; see also 42 U.S.C. §§ 7607(d)(1)(C), (d)(2)-(10) 

(further specifying rulemaking procedures for the revision of section 111 standards). 

FACTUAL BACKGROUND

14. EPA first promulgated section 111 new source performance standards for 

residential wood heaters in 1988. See Standards of Performance for New Stationary Sources; 

New Residential Heaters, 53 Fed. Reg. 5,860 (Feb. 26, 1988). The regulations expressly applied 

to “new residential wood heaters,” and exempted other hearth appliances, such as furnaces, 

boilers, and fireplaces. Id. The standards put in place under EPA’s 1988 rule issuance remain in 

place today. See generally 40 C.F.R. Part 60, Subpart AAA.

15. Over 25 years have now passed since EPA first promulgated the Subpart AAA 

regulations in 1988. Despite the CAA’s requirement that EPA review and, as appropriate, revise 

section 111 standards every eight years, EPA has failed to complete any review of the Subpart 

AAA standards and has failed to issue proposed revisions to those standards, much less 

promulgate a final rule. EPA has never determined “that such review is not appropriate in light 

of readily available information on the efficacy” of the Subpart AAA standards. 42 U.S.C. § 

7411(b)(1)(B). EPA also has never determined that revision is not “appropriate” pursuant to 42 

U.S.C. § 7411(b)(1)(B).

16. HPBA is aware that EPA’s recent efforts to review the Subpart AAA regulations 

have generated a proposed rulemaking package that is currently undergonig review by the Office 

of Information and Regulatory Affairs (“OIRA”) under Executive Order 12866. However, it 

remains uncertain whether, or when, a proposed rule will ultimately be signed by the 

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Administrator and published for public comment. As such, the Administrator continues to be in 

violation of her nondiscretionary duty to “review and, if appropriate, revise” section 111 

standards for residential wood heaters every eight years. 42 U.S.C. § 7411(b)(1)(B).

INJURIES RESULTING FROM EPA’S FAILURE TO ACT

17. HPBA’s members have suffered and continue to suffer economic injury as a result 

of EPA’s failure to timely complete its review and revision of the Subpart AAA standards.

18. EPA’s delay impedes HPBA’s members’ ability to meaningfully plan to assure 

compliance with revised regulatory requirements, and to do so without incurring additional costs 

due to the resultant regulatory uncertainty. In particular, woodstove manufacturers as well as 

manufacturers of other appliances are forced to delay specific planning or investment, or do so at 

the risk that their efforts may be redone in light of requirements ultimately promulgated under a 

revised Subpart AAA. As long as EPA continues to delay its revision of Subpart AAA 

standards, the costs of regulatory uncertainty continue to mount.

19. EPA’s delay also uniquely injures HPBA members in the hydronic heater and 

masonry heater subsets of the industry as a result of the existing NSPS’s inapplicability to these 

appliances. These members currently face a patchwork of inconsistent state and local regulatory 

requirements and, in some cases, product bans as a result of EPA’s failure to timely revise the 

NSPS so as to incorporate these categories of appliances within Subpart AAA.

20. HPBA’s Hydronic Heater Sub-Section wrote EPA six years ago seeking coverage 

under the Subpart AAA regulations so as to foster greater uniformity in hydronic heater 

standards, and to mitigate the costs of participation in separate state and local proceedings. 

EPA’s continued delay in issuing revised standards including hydronic heaters prevents 

manufacturers from obtaining resolution of the contentious issues surrounding these appliances 

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and from seeking EPA-certification for their appliances. In the meantime, new state and local 

standards continue to be issued, including, most recently, proposed emission limits for wood 

heaters, including hydronic heaters, in Alaska. As a result, EPA’s members in the hydronic 

heater industry continue to face costs as a result of EPA’s delay.

21. HPBA’s members within the masonry heater industry face significant hurdles as a 

result of the tendency of state and local regulators to perceive these appliances as “dirty” simply 

because they cannot be EPA-certified under existing Subpart AAA regulations. Because of this 

misperception, many jurisdictions have either expressly or effectively banned masonry heater 

use, while others have imposed heavy restrictions on these appliances. Until EPA completes its 

review and revision of the NSPS, masonry heater manufacturers will continue to suffer increased 

costs as a result of the unavailability of EPA certification for masonry heaters. In addition, 

masonry heater manufacturers continue to face the costs and burdens of participating in separate 

state and local standard-setting proceedings, and the costs and burdens of compliance with 

disparate state and local standards. 

22. All the above injuries are the direct result of EPA’s failure to timely review and 

revise the Subpart AAA standards and would be remedied by the declaratory and injunctive 

relief sought in this Complaint. HPBA’s members would have standing in their own right to 

bring this suit.

23. The interests HPBA seeks to protect are germane to its organizational purpose. 

One of HPBA’s primary purposes is to represent and protect the interests of the regulated 

industry before EPA and other government regulators responsible for developing and enforcing 

hearth appliance standards. HPBA and its predecessor organizations have, for decades, engaged 

EPA regarding the development and revision of NSPS under the Subpart AAA regulations.

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24. Because HPBA seeks equitable relief through intervention in this litigation, 

individual member participation is not required.

NOTICES

25. Notwithstanding the fact that notice is not a prerequisite for complaints in 

intervention under Section 304(a) of the CAA, 42 U.S.C. § 7604(a), on October 10, 2013, 

HPBA provided notice of its intent to sue Defendants pursuant to section 304(b)(2) of the 

CAA on account of the Administrator’s failure to timely review and revise the Subpart AAA 

regulations. 

26. Among other things, the notices described the claim for failure to perform a 

nondiscretionary act or duty that HPBA sets forth in this Complaint. 

27. HPBA served its notice by certified mail on the EPA Administrator, along with 

a courtesy copy by electronic mail. 

28. Separately, prior to filing this action, the remaining plaintiffs in this action 

satisfied the CAA’s applicable notice requirements. By certified letter posted on August 1, 

2013, those plaintiffs gave notice of this action pursuant to section 304(b)(2) of the CAA, 42 

U.S.C. § 7604(b)(2), and 40 C.F.R. Part 54. More than 60 expired between EPA’s receipt of 

those plaintiffs’ notice letter and the commencement of this suit, during which time EPA took 

no action to remedy the alleged violations. 

CLAIM FOR RELIEF

COUNT I: Failure to Perform a Nondiscretionary Act or Duty 

29. HPBA re-alleges and incorporates herein the allegations in Paragraphs 1 through 

28 as if fully set forth herein.

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30. Since promulgation of the original Subpart AAA standards for residential wood 

heaters, the Administrator has missed three mandatory eight-year statutory deadlines to complete 

required notice-and-comment rulemaking to review and revise those standards. 

31. The Administrator’s failure to complete its review of Subpart AAA and timely 

revise EPA’s standards of performance for wood heaters (or issue a determination that revision 

of the Subpart AAA standards is not “appropriate”), in accordance with 42 U.S.C. § 

7411(b)(1)(B), constitute a failure “to perform an act or duty . . . which is “is not discretionary 

with the Administrator.” 42 U.S.C. § 7604(a)(2). 

32. The Administrator’s failure to perform this nondiscretionary act or duty continues 

to this day.

33. The delay caused by the Administrator’s failures has harmed and continues to 

harm HPBA members, who are unable to meaningfully plan to ensure compliance with 

regulatory requirements and to do so without incurring additional costs caused by the regulatory 

uncertainty resulting from EPA’s delay.

RELIEF REQUESTED

 WHEREFORE, HPBA respectfully requests that the Court: 

 A. Declare that the Administrator’s failure to timely review and, as necessary, revise 

standards of performance for residential wood heaters under the Subpart AAA regulations 

violates 42 U.S.C. § 7411(b)(1)(B), and that the Administrator, therefore, has failed to perform 

an act or duty that is not discretionary within the meaning of 42 U.S.C. § 7604(a)(2); 

 B. Order the Administrator to promptly complete her review and propose and 

promulgate all appropriate revisions to the NSPS for residential wood heaters pursuant to 42 

U.S.C. § 7411(b)(1)(B), pursuant to a deadline established by this Court; 

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 C. Retain jurisdiction to ensure compliance with the court’s order; 

 D. Award HPBA the costs of its participation in this action, including reasonable 

attorneys’ fees; and 

 E. Grant such other relief as the Court deems just and proper.

October 31, 2013 Respectfully submitted, 

/s/ David E. Menotti 

 David E. Menotti (No. 158089) 

 David Y. Chung (No. 500420) 

 Dawn Miller (No. 998627) 

 CROWELL & MORING LLP 

 1001 Pennsylvania Avenue, N.W. 

 Washington, DC 20004-2595 

 (202) 624-2500 

Attorneys for Hearth, Patio & Barbecue 

Association 

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