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. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 13-cv-01555 (GK)

[PROPOSED] COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1. The Hearth, Patio & Barbecue Association (“HPBA”) h ereby commences this action against Gina McCarthy, in her official capac ity as Administrator of the U.S. Environmental Protection Agency (“EPA”). Through t his 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 Ac t”) to complete review and revision of the Agency’s New Source Performance Standards (“NSP S”) for Residential Wood Heaters, found at 40 C.F.R. Part 60, Subpart AAA (the “Subpa rt AAA regulations” or “Subpart AAA standards”). Case 1:13-cv-01555-GK Document 13-2 Filed 10/31/13 Page 1 of 112 JURISDICTION AND VENUE

2. This Court has jurisdiction over this action pursua nt to 42 U.S.C. § 7604(a)(2), which authorizes citizen suits concerning the Admin istrator’s failure to perform a nondiscretionary duty required by the CAA. This Co urt 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 Distric t 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 tha t 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 effort s, HPBA has, among other things, participated on voluntary consensus standards-setting boddies su ch as ASTM, collected industry information and data, conducted scientific research and analysi s, and advocated for its members with respect

to revised wood heater standards.

5. Plaintiff American Lung Association (“Lung Associat ion”) describes itself as “a national voluntary health organization dedicated to saving lives by improving lung health and Case 1:13-cv-01555-GK Document 13-2 Filed 10/31/13 Page 2 of 113

preventing lung disease. Core to that mission is t he 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 protec tive standards to reduce air pollution so

that all Americans can have air that is safe and he althy to breathe. Now in its second century, the Lung Association pursues its mission through re search, education and advocacy.” Compl. for Declaratory and Injunctive Relief [Dkt. 1], ¶ 6

. 6. Plaintiff Environmental Defense Fund (“EDF”) descri bes itself as “a national membership organization with over 300,000 members r esiding throughout the United States. EDF works to link science, economics, and law to cr eate innovative, equitable, and costeffective solutions to the most urgent environmenta l problems. EDF is dedicated to carrying out the interests of its members in protecting and enha ncing 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 re duce air pollution, the use of adequate information and rigorous science in governmental de cisions affecting the environment, and promoting the availability of sound public informat ion regarding the state of human health and the environment, including the impacts and extent o f 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 p roceedings on air pollution policy at the federal and state levels.” Compl. for Declaratory and Inju nctive Relief [Dkt. 1], ¶ 7.

7. Plaintiff Clean Air Council (“Council”) describes i tself as “dedicated to protecting the right to breathe clean air and has f ought 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 Case 1:13-cv-01555-GK Document 13-2 Filed 10/31/13 Page 3 of 114

oversight to ensure the enforcement of environmenta l laws. Reducing air emission from wood heaters by ensuring the most protective standards a re 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 Inj unctive Relief [Dkt. 1], ¶ 8.

8. Plaintiff Environment and Human Health, Inc. (“EHHI ”) describes itself as “a non-profit organization headquartered in Connecticu t and composed of physicians, public health professionals and policy experts dedicated to prote cting human health from environmental

harms. EHHI works to communicate information about environmental health risks to those exposed and to public and private officials, thereb y empowering individuals and groups to take control over the quality of their environment and p rotect themselves and their families, and to promote policies in all sectors that ensure the pro tection of human and environmental health. EHHI has published reports on the dangers of wood s moke and has advocated at all levels of government for the control of air pollution from wo od 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 implem entation and enforcement of the CAA, including the Act’s nondiscretionary requirement to timely review and revise as necessary the

NSPS for Residential Wood Heaters. Case 1:13-cv-01555-GK Document 13-2 Filed 10/31/13 Page 4 of 115 STATUTORY AND REGULATORY BACKGROUND

11. Clean Air Act Section 111, 42 U.S.C. § 7411, requir es EPA to establish standards of performance for categories of stationa ry sources. Specifically, under section 111(b), the Administrator must list categories of s tationary sources that the Administrator finds “cause[], or contribute[] significantly to, air pol lution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 74 11(b)(1)(A). For each category of sources so listed, the Act requires the Administrator to es tablish 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 “reflec t[] the degree of emission limitation achievable through the application of the best syst em of emission reduction which (taking into account the cost of achieving such reduction and an y nonair quality health and environmental impact and energy requirements) the Administrator d etermines 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 spe cific, 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 ap propriate 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 suc h standards, such review and revision requires the Administrator to “afford interested pe rsons and opportunity for written comment” Case 1:13-cv-01555-GK Document 13-2 Filed 10/31/13 Page 5 of 116

on proposed revisions. Id . “After considering such comments, [the Administr ator] 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 r evision of section 111 standards).

FACTUAL BACKGROUND

14. EPA first promulgated section 111 new source perfor mance standards for

residential wood heaters in 1988. See Standards of Performance for New Stationary Source s; New Residential Heaters, 53 Fed. Reg. 5,860 (Feb. 2 6, 1988). The regulations expressly applied to “new residential wood heaters,” and exempted oth er 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 promu lgated 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 fa iled to complete any review of the Subpart AAA standards and has failed to issue proposed revi sions 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” o f 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 t he Subpart AAA regulations have generated a proposed rulemaking package that i s currently undergonig review by the Office of Information and Regulatory Affairs (“OIRA”) unde r Executive Order 12866. However, it remains uncertain whether, or when, a proposed rule will ultimately be signed by the Case 1:13-cv-01555-GK Document 13-2 Filed 10/31/13 Page 6 of 117

Administrator and published for public comment. As such, the Administrator continues to be in violation of her nondiscretionary duty to “review a nd, 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 mean ingfully plan to assure compliance with revised regulatory requirements, an d to do so without incurring additional costs due to the resultant regulatory uncertainty. In pa rticular, woodstove manufacturers as well as manufacturers of other appliances are forced to del ay 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 d elay its revision of Subpart AAA standards, the costs of regulatory uncertainty cont inue to mount.

19. EPA’s delay also uniquely injures HPBA members in t he 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 patchwo rk 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 appli ances within Subpart AAA.

20. HPBA’s Hydronic Heater Sub-Section wrote EPA six ye ars ago seeking coverage under the Subpart AAA regulations so as to foster g reater uniformity in hydronic heater standards, and to mitigate the costs of participati on in separate state and local proceedings. EPA’s continued delay in issuing revised standards including hydronic heaters prevents manufacturers from obtaining resolution of the cont entious issues surrounding these appliances Case 1:13-cv-01555-GK Document 13-2 Filed 10/31/13 Page 7 of 118

and from seeking EPA-certification for their applia nces. In the meantime, new state and local standards continue to be issued, including, most re cently, 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 f ace significant hurdles as a result of the tendency of state and local regulator s 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 expre ssly or effectively banned masonry heater use, while others have imposed heavy restrictions o n these appliances. Until EPA completes its review and revision of the NSPS, masonry heater man ufacturers will continue to suffer increased costs as a result of the unavailability of EPA cert ification for masonry heaters. In addition, masonry heater manufacturers continue to face the c osts and burdens of participating in separate state and local standard-setting proceedings, and t he 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 remed ied by the declaratory and injunctive relief sought in this Complaint. HPBA’s members wo uld 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 predecess or organizations have, for decades, engaged EPA regarding the development and revision of NSPS under the Subpart AAA regulations. Case 1:13-cv-01555-GK Document 13-2 Filed 10/31/13 Page 8 of 119

24. Because HPBA seeks equitable relief through interve ntion in this litigation, individual member participation is not required.

NOTICES

25. Notwithstanding the fact that notice is not a prere quisite 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 Defendant s pursuant to section 304(b)(2) of the

CAA on account of the Administrator’s failure to ti mely 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 i n 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 remain ing 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 p ursuant to section 304(b)(2) of the CAA, 42 U.S.C. § 7604(b)(2), and 40 C.F.R. Part 54. More t han 60 expired between EPA’s receipt of those plaintiffs’ notice letter and the commencemen t 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. Case 1:13-cv-01555-GK Document 13-2 Filed 10/31/13 Page 9 of 1110

30. Since promulgation of the original Subpart AAA stan dards for residential wood heaters, the Administrator has missed three mandato ry eight-year statutory deadlines to complete required notice-and-comment rulemaking to review an d 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 heat ers (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 nondisc retionary act or duty continues to this day.

33. The delay caused by the Administrator’s failures ha s harmed and continues to harm HPBA members, who are unable to meaningfully p lan to ensure compliance with regulatory requirements and to do so without incurr ing additional costs caused by the regulatory uncertainty resulting from EPA’s delay. RELIEF REQUESTED WHEREFORE, HPBA respectfully requests that the Cou rt: A. Declare that the Administrator’s failure to tim ely review and, as necessary, revise standards of performance for residential wood heate rs under the Subpart AAA regulations violates 42 U.S.C. § 7411(b)(1)(B), and that the Ad ministrator, 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 he r review and propose and promulgate all appropriate revisions to the NSPS fo r residential wood heaters pursuant to 42 U.S.C. § 7411(b)(1)(B), pursuant to a deadline esta blished by this Court; Case 1:13-cv-01555-GK Document 13-2 Filed 10/31/13 Page 10 of 1111

C. Retain jurisdiction to ensure compliance with t he court’s order; D. Award HPBA the costs of its participation in th is 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 Case 1:13-cv-01555-GK Document 13-2 Filed 10/31/13 Page 11 of 11