Tuesday, September 3, 2013

The Significance of “Notices of Intent to Sue” the EPA over the Wood Heater NSPS

Prepared for the Alliance for Green Heat by the law firm Van Ness Feldman, LLP

            On August 1st, a coalition of states and a group of several environmental organizations sent separate notices to EPA notifying of their intent to file a lawsuit over the delay in issuing revised New Source Performance Standards (NSPS) for residential wood heaters.  Under the Clean Air Act, a “notice of intent” is required 60 days before an individual or group sues EPA.  This notice is required in order to give the agency time to respond to the issues raised in the notice, potentially avoiding litigation.  Parties that file intent to sue notices are not required to file suit and may decide that it is ultimately not in their best interest to do so.

            Often, intent to sue notices are used by groups and individuals to prod the EPA to move more quickly in rulemaking and to remind the agency that there are stakeholders concerned about the outcome as well as the timing of a regulation.  In the case of the wood heater NSPS, EPA is already well underway to issuing a proposed rule.  The current draft of the rule has been under review at the Office of Management and Budget (OMB) since July 26th.  However, that said, EPA is 17 years late in revising the rule. States and environmental groups concerned about ongoing particulate matter (PM) pollution and high pollution levels from unregulated boilers are concerned that EPA will let the timeline for the proposed rule slip further.  The intent to sue notices also highlights the fact that there have been a number of improvements to the technology for controlling emissions that are not captured in the current regulations.

            It is unclear whether the intent to sue notices will actually lead to litigation.  The environmental groups’ petitions were more definitive in stating that they would sue after the 60-day time frame elapses, or on October 1st.  Technically, OMB should be finished reviewing the rule by October 26th.  However, it is difficult to predict with any certainty how quickly OMB’s review will proceed, and it could be finished prior to October 1st. A lawsuit likely would not be filed once the rule is released unless the state and environmental groups want to get a firm deadline for when the final wood heater NSPS will be issued.  If this is the case, lawsuits may still be filed despite a proposal coming out of OMB prior to October 1st.

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