Wood-Fired Pollution

May 2021

In May 2021, New York Attorney General Letitia James led a coalition of nine AGs in a letter to EPA requesting that the agency revoke two types of testing methods for certifying wood heaters. The coalition argued that these alternative methods do not accurately determine whether wood heaters comply with the New Source Performance Standard, an EPA rule which helps to control pollution and maintain air quality. Using research conducted by a number of groups in early 2021, the AGs explained that the two testing methods in question “allow too much variability” and make it easy for “manufacturers [to] effectively evade the Standard, and thus contribute to harmful air pollution.”

January 2022

In January 2022, EPA withdrew the broadly applicable alternative test method approval decisions for Alternatives 125 and 127 (or ALT-125 and ALT-127) that EPA had made in 2018 under Standards of Performance for New Residential Wood Heaters.

EPA’s withdrawal of the broadly applicable alternative test methods ALT-125 and ALT-127 became effective on February 23, 2022.

February 2023

In February 2023, EPA’s Office of Inspector General issued a report titled, “The EPA’s Residential Wood Heater Program Does Not Provide Reasonable Assurance that Heaters Are Properly Tested and Certified Before Reaching Customers.” The report explained that the flawed program puts human health and the environment at risk because it results in heaters that emit too much particulate-matter pollution being approved for sale. The report also includes recommendations and suggested corrective actions to EPA. However, EPA has not yet issued new standards.

September 2023

In September 2023, a bipartisan coalition of 10 attorneys general led by New York Attorney General Letitia James filed a complaint against EPA for failing to revise standards for air pollution from wood heaters. The AGs argue that smoke from wood heaters contains harmful pollutants, including particulate matter and carbon monoxide, which can lead to dangerous heart, lung, and other health effects. EPA is required by the Clean Air Act to review and revise New Source Performance Standards for wood heaters every eight years, but has failed to meet this deadline. In the complaint, the AGs explain that this failure endangers the health of their residents and disrupts state efforts to meet emissions reductions goals, as well as frustrates state efforts to incentivize cleaner wood stoves. The AGs are asking the court to order EPA to “promptly complete review, propose, and promulgate necessary revisions.”

This case, State of New York, et al v. Regan, at al, is pending and briefing has not yet occurred.

November 2023

EPA filed an unopposed motion for an extension of time to file an answer to the AG-coalition’s complaint. The court approved this request.

January 2024

EPA filed another unopposed motion for an extension of time to file an answer to the AG-coalition’s complaint. The court granted this extension request. In this extension request motion, EPA explained that it was engaged in settlement discussions which, if successful, would obviate the need to prepare and file an answer. EPA’s answer is now due by February 22.

November 2018

In November 2018, EPA released a proposed rule that would significantly weaken the 2015 rule. In particular, the proposal would authorize a two-year sell-through period, allowing retailers to sell new boilers and furnaces that comply with the less stringent step-one standards – but not the step-two standards – until May 2022; two years beyond the compliance deadline for the step-two standards in the 2015 rule.

January 2019

In January 2019, New York Attorney General Letitia James led a coalition of seven attorneys general in submitting comments opposed to the proposed rule. The comments noted that EPA failed to provide any justification for allowing the continued sale of boilers and furnaces that only comply with the less stringent step-one standards two years past the compliance date in the 2015 rule for the step-two standards. The proposal ignored EPA’s 2015 findings that setting limits on fine particulate matter for wood burning devices would reduce premature deaths by 360 to 810 people and avoid 48,000 lost workdays. Further, the attorneys general pointed out that the proposal would result in as much as two decades of harmful air pollution due to the life expectancies of wood boilers and forced-air furnaces.

April 2020

In April 2020, the EPA issued a final rule in which it decided not to authorize the two-year sell-through period allowing manufacturers to sell non-compliant boilers and furnaces beyond the May 2020 compliance deadline. The EPA concluded that manufacturers had presented insufficient data to demonstrate that a sell-through period was necessary.

May 2020

One month later, in May 2020, the EPA issued a proposed rule to amend the new source performance standards to allow for yet another sell-through period allowing manufacturers to sell non-compliant wood heaters, wood boilers, and forced-air furnaces until November 30, 2020. The EPA cited the impact of the COVID-19 pandemic on retailers as justification for the sell-through period, although the agency failed to quantify the additional emissions of particulate matter that would result from the sell-through period or present a cost-benefit analysis or regulatory impact statement with its proposal. The EPA also indicated that it will not take enforcement action against retailers while the rule is pending.

July 2020

In July 2020, a coalition of eleven attorneys general led by Attorney General James filed comments opposing the EPA’s proposal. In their comments, the attorneys general highlighted that the proposal would violate the Clean Air Act and lead to increased particulate matter pollution, harmful health effects, and morbidity in the midst of a respiratory health pandemic. The attorneys general also noted that only one month prior to this proposal, the EPA concluded that there was insufficient evidence demonstrating the need for a sell-through period. The coalition urged the EPA to not finalize the proposed rule that would prevent the public from realizing the full benefits of the 2015 standards until well after the step-two 2020 compliance deadline.