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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

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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 11
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 – 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. 

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 Plaintiffs New York, Connecticut, Maryland, Massachusetts, Oregon, Rhode Island, 

Vermont and the Puget Sound Clean Air Agency (collectively, the “States”) bring this action to 

compel Gina McCarthy, as Administrator of the Environmental Protection 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 Performance Standards (“NSPS”) for particulate matter 

pollution from new residential wood heaters. The 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 pursuant to section 304(a)(2) of the Act, 

42 U.S.C. § 7604(a)(2), which authorizes any person, after duly giving notice, to commence a 

citizen suit against EPA where the Administrator 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 perform her nondiscretionary duty to timely review and revise as 

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necessary the NSPS for wood-burning devices occurred in this district, and EPA maintains an 

office in this district. 

PARTIES 

3. Plaintiff State of New York is a sovereign entity that brings this action on behalf of its 

citizens and residents. 

4. Plaintiff State of Connecticut is a sovereign entity that brings 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 Massachusetts is a sovereign entity that brings this action 

on behalf of its citizens and residents. 

7. Plaintiff State of Oregon is a sovereign entity that brings this action on behalf of its 

citizens and residents. 

8. Plaintiff State of Rhode Island is a sovereign entity that brings this action on behalf of 

its citizens and residents. 

9. Plaintiff State of Vermont is a sovereign entity 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, Pierce and Snohomish counties in the state of 

Washington, including the cities of Seattle and Tacoma. 

11. Each of the plaintiffs is a “person” as defined in the applicable provision of the Act, 

42 U.S.C. § 7602(e). 

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

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

including timely reviewing and 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 sources. Section 111(b) requires the 

Administrator to 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). 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 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). 

15. Pursuant to section 111(b)(1)(B) of the Act, EPA must, “at least every eight years, 

review and, if appropriate, revise such standards” 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 account “emission limitations and percent reductions 

achieved in practice.” Id. 

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 FACTUAL BACKGROUND 

A. Wood Smoke Pollution 

16. Wood smoke contains several pollutants, including fine particulate matter (PM2.5), 

carbon monoxide (CO), and polycyclic aromatic hydrocarbons (PAHs). These pollutants are 

linked to adverse coronary and pulmonary health impacts, including premature death. 

17. In its 2013 document entitled Strategies for Reducing Residential Wood Smoke, 

(“2013 Strategies Document”), EPA 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 attacks, heart attacks, premature death). Wood smoke causes many 

counties throughout the U.S. to either exceed the national health-based standards for fine 

particles, or places them on the cusp of exceeding the standards.” Several studies have found 

that residential wood combustion is responsible for potentially dangerous short-term spikes in 

PM2.5 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 spikes 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 also adversely affect public welfare, including impairing visibility 

and damaging vegetation. 

18. According to EPA, fine particulate matter emitted from wood-burning devices 

comprised 13 percent of all PM2.5 pollution in the U.S. in 2008. EPA has also estimated that 

smoke from these devices can represent a large percentage of this pollution regionally, including 

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25 percent of wintertime PM2.5 pollution in parts of New Hampshire and Wisconsin, and more 

than 50 percent of wintertime PM2.5 in Tacoma, Washington and Sacramento, California. 

B. EPA’s Failure to Timely Review and Revise the NSPS for Residential Wood Heaters 

Obsolete Standards for Wood-Burning Devices 

19. In 1988, EPA determined that particulate matter emitted from residential wood 

heaters causes or contributes significantly to air pollution that may reasonably be anticipated to 

endanger public health or welfare and therefore 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 eight-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 such a review is not 

appropriate in light of readily available information on the efficacy of the standards. 

20. Since 1988, demonstrated and cost-effective design technologies that enable 

residential wood heaters to achieve substantially increased burning efficiencies and significantly 

reduced emissions of PM2.5 and other pollutants have become available. 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 available wood heaters that emit fewer than half 

of the emissions allowed under EPA’s 1988 standard. Several states have regulations requiring 

wood heaters to achieve standards significantly more stringent than EPA’s standard. For 

example, Washington’s standard limiting PM2.5 emissions from these devices is 40 percent more 

stringent. 

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Lack of Standards for Wood Boilers 

21. When it established the residential 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 and defining “boilers”). Although EPA 

subsequently developed a voluntary 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 unregulated boilers has grown since 1988. Their 

emissions are of particular concern to the Northeast, Midwest and Northwest. EPA estimates 

that outdoor wood boilers will produce more than 20 percent of wood burning emissions by 

2017. 

23. In 2008, the New York Attorney General’s Office issued a report finding that 

outdoor wood boilers were becoming increasingly common and can emit far more PM2.5 than 

other types of residential heaters -- 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 Management 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, Assessment of Outdoor Wood-Fired Boilers (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 currently 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-Burning Residential Hot Water Furnaces, 

Project Summary (Feb. 1998). 

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25. Similar to newer wood heaters, wood boilers 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 Participation – List of Cleaner Hydronic 

Heaters, available at: www.epa.gov/burnwise/owhhlist.html. 

C. Notice of Violations of Nondiscretionary 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’ intention 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 Nondiscretionary Duty to Timely 

Review, and as Necessary, Revise NSPS for Residential Wood Heaters) 

28. Despite the expiration of three mandatory 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 subsequent 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 Administrator was required as part of her 

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mandatory review of the residential wood heaters NSPS to revise the NSPS to address air 

pollution from unregulated wood boilers. 

 30. The Administrator’s failures to timely complete review and promulgate any 

necessary revisions to the NSPS for residential wood heaters violates 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 Administrator” under 42 U.S.C. 

§ 7604(a)(2). 

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

the States by delaying the adoption and implementation of more protective NSPS for residential 

wood heaters that will result in cleaner and healthier air in the 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 violation 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 complete review, propose, and promulgate 

necessary revisions to the NSPS for residential 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; 

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 D. Retaining jurisdiction over this matter until such time as Defendants have 

complied with their nondiscretionary duties under 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 FOR 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 

 

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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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