1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

------------------ ------------------ --------------- --------------- ----------x 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,

Case 1:13-cv-01553 Document 1 Filed 10/09/13 Page 1 of 112 – 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.

------------------ ------------------ --------------- --------------- ----------x Plaintiffs New York, Co nnecticut, Maryland, Massachusetts, Oregon, Rhode Island, Vermont and the Puget Sound Clean Air Agency (col lectively, the “States”) bring this action to compel Gina McCarthy, as Administrator of th e Environmental Protectio n 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 Performan ce Standards (“NSPS”) for particulate matter pollution from new residential wood heaters. Th e 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 purs uant to section 304(a)(2) of the Act, 42 U.S.C. § 7604(a)(2), which au thorizes any person, after duly giving notice, to commence a citizen suit against EPA where the Administrato r 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 pe rform her nondiscretionary duty to timely review and revise as

Case 1:13-cv-01553 Document 1 Filed 10/09/13 Page 2 of 113 necessary the NSPS for wood-burning devices occurred in this di strict, and EPA maintains an office in this district. PARTIES 3. Plaintiff State of New York is a sovereign entity that bri ngs this action on behalf of its citizens and residents. 4. Plaintiff State of Connecticut is a sovereign entity that br ings 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 Ma ssachusetts is a sovereign ent ity that brings this action on behalf of its citizens and residents. 7. Plaintiff State of Oregon is a sovereign en tity that brings this action on behalf of its citizens and residents. 8. Plaintiff State of Rhode Isla nd is a sovereign entity that brings this action on behalf of its citizens and residents. 9. Plaintiff State of Vermont is a sovereign en tity 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, Pier ce and Snohomish countie s in the state of Washington, including the citi es of Seattle and Tacoma. 11. Each of the plaintiffs is a “person” as de fined in the applicable provision of the Act, 42 U.S.C. § 7602(e).

Case 1:13-cv-01553 Document 1 Filed 10/09/13 Page 3 of 114 12. Defendant Gina McCarthy is Administrato r of EPA and is sued in her official capacity. The Administrator is charged with implementation and enforcement of the Act, including timely reviewing a nd 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 source s. Section 111(b) requires the Administrator to list categories of stationary sources that the Administrator finds “cause[], or contribute[] significantly to, air pollution whic h 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 achie vable 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 re quirements) 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 st andards” 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 acc ount “emission limitations and percent reductions achieved in practice.” Id.

Case 1:13-cv-01553 Document 1 Filed 10/09/13 Page 4 of 115 FACTUAL BACKGROUND A. Wood Smoke Pollution 16. Wood smoke contains several pollutant s, including fine particulate matter (PM 2.5 ), carbon monoxide (CO), and polycyclic aromatic hydrocarbons (PAHs). These pollutants are linked to adverse coronary and pulmonary he alth impacts, includi ng premature death. 17. In its 2013 document entitled Strategies for Reducing Residential Wood Smoke , (“2013 Strategies Document”), EP A 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 att acks, heart attacks, premature death). Wood smoke causes many counties throughout the U.S. to either exceed th e national health-based standards for fine particles, or places them on th e cusp of exceeding the standards.” Several studies have found that residential wood combustion is responsible for potentially da ngerous short-term spikes in
PM 2.5 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 spik es 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 www.nyserda.ny.gov . High levels of airborne fine particulates can al so adversely affect publ ic welfare, including impairing visibility and damaging vegetation. 18. According to EPA, fine particulate matter emitted from wood-burning devices comprised 13 percent of all PM 2.5 pollution in the U.S. in 2008. EPA has also estimated that smoke from these devices can represent a large pe rcentage of this pollution regionally, including

Case 1:13-cv-01553 Document 1 Filed 10/09/13 Page 5 of 116 25 percent of wintertime PM 2.5 pollution in parts of New Hamp shire and Wisconsin, and more than 50 percent of wintertime PM 2.5 in Tacoma, Washington and Sacramento, California. B. EPA’s Failure to Timely Review and Revi se the NSPS for Residential Wood Heaters Obsolete Standards for Wood-Burning Devices 19. In 1988, EPA determined that particul ate matter emitted from residential wood heaters causes or contributes significantly to ai r pollution that may reasonably be anticipated to endanger public health or welfare and ther efore 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 ei ght-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 su ch a review is not appropriate in light of readily available information on the effic acy of the standards. 20. Since 1988, demonstrated and cost-eff ective design technologies that enable residential wood heaters to achieve substantially increased burni ng efficiencies and significantly reduced emissions of PM 2.5 and other pollutants have become av ailable. 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 avai lable wood heaters that emit fewer than half of the emissions allowed under EPA’s 1988 standar d. Several states have regulations requiring wood heaters to achieve standa rds significantly more stringent than EPA’s standard. For example, Washington’s standard limiting PM 2.5 emissions from these devices is 40 percent more stringent. Case 1:13-cv-01553 Document 1 Filed 10/09/13 Page 6 of 117 Lack of Standards for Wood Boilers 21. When it established the residentia l 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 a nd defining “boilers”). Although EPA subsequently developed a volunt ary 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 unregulat ed boilers has grown since 1988. Their emissions are of particular concern to the Nort heast, Midwest and Northwest. EPA estimates that outdoor wood boilers will produce more th an 20 percent of wood burning emissions by
2017. 23. In 2008, the New York Attorney Genera l’s Office issued a report finding that outdoor wood boilers were becoming increa singly common and can emit far more PM 2.5 than other types of residential heat ers -- 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 Ma nagement 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, Assessm ent of Outdoor Wood-Fired Bo ilers (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 cu rrently 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-Burni ng Residential Hot Water Furnaces , Project Summary (Feb. 1998).

Case 1:13-cv-01553 Document 1 Filed 10/09/13 Page 7 of 118 25. Similar to newer wood heaters, wood boile rs 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 Particip ation – List of Cleaner Hydronic Heaters, available at: www.epa.gov/burnwise/owhhlist.html

. C. Notice of Violations of Nondiscretio nary 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’ in tention 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 Nondiscret ionary Duty to Timely Review, and as Necessary, Revise NSPS for Residential Wood Heaters) 28. Despite the expiration of three mandato ry 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 subs equent 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 Administrato r was required as part of her

Case 1:13-cv-01553 Document 1 Filed 10/09/13 Page 8 of 119 mandatory review of the residential wood heat ers NSPS to revise the NSPS to address air pollution from unregulated wood boilers. 30. The Administrator’s failures to timel y complete review and promulgate any necessary revisions to the NSPS for residential wood heaters viol ates 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 Ad ministrator” under 42 U.S.C. § 7604(a)(2). 32. The delay caused by the Administrator’s failures has harmed a nd continues to harm the States by delaying the adop tion and implementation of more protective NSPS fo r residential wood heaters that will resu lt in cleaner and healthier air in th e 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 viol ation 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 co mplete review, propose, and promulgate necessary revisions to the NSPS for reside ntial 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;

Case 1:13-cv-01553 Document 1 Filed 10/09/13 Page 9 of 1110 D. Retaining jurisdiction over this ma tter until such time as Defendants have complied with their nondiscretionary duties und er 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 FO R 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 Case 1:13-cv-01553 Document 1 Filed 10/09/13 Page 10 of 1111 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

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