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HPBA Comments on San Joaquin Valley Air District Rule – May & June 2003

COMMENTS OF THE HEARTH, PATIO & BARBECUE ASSOCIATION
AND ITS CALIFORNIA AFFILIATES ON THE SAN JOAQUIN VALLEY
UNIFIED AIR POLLUTION CONTROL DISTRICT'S PROPOSED CHANGES TO RULE 4901, WOOD BURNING FIREPLACES AND WOOD HEATERS

DATED APRIL 11, 2003

  1. Summary of April 11, 2003, Proposal to Modify Rule 4901.
  2. Comments on the Proposed Changes to Rule 4901.
    1. HPBA and the Affiliates Support Responsible Wood Burning.
    2. The Air District's Proposal for Wood Burning Curtailment Is Too Broad and Sends the Wrong Message to the Public About EPA-Certified Stoves and Pellet Stoves.
      1. A One-Stage Curtailment Sends a Negative Message to the Public About Clean-Burning Wood Appliances.
      2. Little or No Incremental Air Quality Benefit Will Be Realized by Prohibiting the Use of Clean-Burning Appliances as Part of a One-Stage Curtailment.
      3. The Air District Has Provided Insufficient Justification for Rejecting Its Previously-Proposed Two-Stage Curtailment Approach.
        1. Two-Stage Curtailment Approaches Have Been Successfully Demonstrated in the Field.
        2. A One-Stage Curtailment Plan, When Compared to a Two-Stage Curtailment Plan, Achieves Almost No Incremental Reduction in Particulate Emissions.
        3. The U.S. EPA Specifically Suggested that the Air District Consider a Two-Stage Curtailment Plan.
        4. A One-Stage Curtailment Plan Will Be More Difficult to Enforce than a Two-Stage Plan, and a One-Stage Curtailment Plan Will in Fact Impose Controls on Areas Without Obtaining Meaningful Reductions in Particulate Emissions.
        5. The Air District Has Inadequately Limited the Scope of Its Curtailment Program.
      4. The Air District Should Reinstate the Two-Stage Curtailment Program that Was Proposed in December.
    3. The Density Limits for Wood Burning Appliances Are Too Stringent and Are Arbitrary.
      1. The Air District Has Not Justified Its Proposed Density Limits.
      2. The U.S. EPA's Limited Disapproval of the Air District's Plan Does Not Justify the Density Limits that Were Chosen.
      3. The Air District Should Exempt Clean-Burning Hearth Appliances from the Density Limits, as Suggested by the U.S. EPA.
      4. The Air District Should Exempt the Same Homes from Density Limits that Are Exempted from Curtailments.
    4. The Air District Should Specifically Treat Gas Logs As Clean-Burning Hearth Appliances in Rule 4901.
  3. The Air District's Proposals for 4901 Raise Environmental Justice Issues. 13
  4. The Air District May Have Difficulties in Comporting with Due Process Requirements.
  5. The Air District's Proposals for Rule 4901 Are Flawed and Must Be Amended.

1. Introduction

The Hearth, Patio & Barbecue Association (hereinafter, “HPBA”) is the trade association representing manufacturers, distributors, and retailers of fireplaces and wood stoves (hereinafter, “hearth industry”) in the United States and Canada. HPBA has fourteen regional affiliates, including the HPBA Pacific affiliate, representing northern California, and the HPBA Pacific South affiliate, representing southern California (hereinafter, “the affiliates”). Both affiliates have members in the San Joaquin Valley (hereinafter, “the Valley”).

HPBA and the affiliates are presenting these comments to the San Joaquin Valley Unified Air Pollution Control District (hereinafter, “Air District”) on amendments proposed on April 11, 2003, for Rule 4901, Wood Burning Fireplaces and Wood Heaters, which was originally adopted on July 15, 1993. HPBA and the affiliates have participated throughout the rulemaking process, both orally at workshops and in writing. See, e.g., Letter from John Crouch, HPBA, to Tom Jordan, SJVUAPCD, Comments on Draft Revisions to Rule 4901 – Residential Wood Combustion (December 3, 2002) (hereinafter, “December Comments”).

2. Summary of April 11, 2003, Proposal to Modify Rule 4901

The proposal to modify Rule 4901, dated April 11, 2003, in combination with the previous proposal, dated November 11, 2002, contains several major revisions of direct interest to the hearth industry.

First, Section 5.6 of the rule, as proposed, imposes a mandatory curtailment on all wood burning when the Air Quality Index (hereinafter, “AQI”) for the geographic region is predicted to be a value of 150 or greater. Rule 4901 § 5.6.1.2 (as proposed, April 11, 2003). The curtailment applies to wood burning fireplaces and wood burning heaters. Rule 4901 § 5.6.1.1 (as proposed, April 11, 2003). The only exceptions to this provision are wood burning fireplaces and heaters at 3,000 feet or more above mean sea level, Rule 4901 § 5.6.2.1 (as proposed, April 11, 2003), at locations where natural gas service is not available, Rule 4901 § 5.6.2.2 (as proposed, April 11, 2003), and in homes in which the wood burning appliance is the sole source of heat. Rule 4901 § 5.6.2.3 (as proposed, April 11, 2003).

The November 11, 2002, proposal for Section 5.6 contained a Level I Curtailment, when the AQI was a value of 150 or greater, that would have exempted U.S. Environmental Protection Agency (hereinafter, “U.S. EPA”) Phase II Certified wood stoves (hereinafter, “EPA-certified stoves”) and pellet fuel stoves (hereinafter, “pellet stoves”). Rule 4901 § 5.6.1 (as proposed, November 11, 2002). In the same proposal, a Level II Curtailment would go into effect when the AQI was a value above 170; the curtailment would have applied to all wood burning appliances. Rule 4901 § 5.6.2 (as proposed, November 11, 2002).

Second, Section 5.3 of the rule, as proposed, limits the number of wood burning fireplaces and wood burning heaters in new residential developments. No wood burning fireplaces or heaters shall be installed in homes in new developments after January 1, 2004, if the density of the new development is more than two dwellings per acre. Rule 4901 § 5.3.1 (as proposed, April 11, 2003). Further, in residential developments with densities of two dwellings per acre or less, no more than one wood burning fireplace or heater may be installed in each dwelling. Rule 4901 § 5.3.2 (as proposed, April 11, 2003).

Finally, Section 5.2 of the rule, as proposed, requires that the sale or transfer of real property cannot proceed unless all wood burning heaters are (i) EPA-certified stoves, (ii) pellet stoves, (iii) rendered inoperative, or (iv) removed. Rule 4901 § 5.2.1 (as proposed, April 11, 2003). Further, the seller of the real property must provide documentation of compliance with Section 5.2.1 to the buyer of the real property and to the Air District. Rule 4901 § 5.2.2 (as proposed, April 11, 2003).

3. Comments on the Proposed Changes to Rule 4901

  1. HPBA and the Affiliates Support Responsible Wood Burning.

     

    HPBA and the affiliates have long promoted responsible wood burning. We support the development and use of clean burning technology. This includes technologies already considered by the Air District, such as EPA-certified stoves and pellet stoves, as well as clean burning fireplaces. Members of the hearth industry and the association's technical staff participate in industry voluntary standards groups and other less formal meetings to discuss the latest developments in wood burning technology, including technologies that generate fewer emissions, especially of particulates and organic chemicals that adhere to particulates. The development of the EPA-certified stove is but one example of the fruits of such efforts. HPBA has recently requested that ASTM International, a voluntary standards organization, form a committee to work on a voluntary standard for an emissions protocol for wood burning fireplaces. The standard will serve as a basis for setting an emissions limit for wood burning fireplaces.

    The long-held position of HPBA and the affiliates – of promoting responsible wood burning – is the motivating factor in our comments on Rule 4901. Our suggestions for improving the proposed changes to the rule, as outlined below, are intended to promote the increased use of clean-burning appliances and the increased control of appliances that are not clean-burning.

B. The Air District's Proposal for Wood Burning Curtailment is Too Broad and Sends the Wrong Message to the Public About EPA-Certified Stoves and Pellet Stoves.

 

The Air District proposes a one-stage curtailment program when the AQI surpasses a value of 150. Rule 4901 § 5.6 (as proposed, April 11, 2003). This approach differs starkly from the proposal of November 11, 2002, which had a two-stage curtailment program. Rule 4901 § 5.6.2 (as proposed, November 11, 2002). The two-stage curtailment program allowed EPA-certified stoves and pellet stoves to continue operating when the AQI had a value of more than 150 but less than 170. Above an AQI value of 170, all residential wood combustion would be prohibited. Id.

HPBA and the affiliates supported the two-stage curtailment option proposed by the Air District on November 11, 2002. December Comments, at 2-3. The two-stage curtailment approach recognized the significantly lower emissions of EPA-certified stoves and pellet stoves, and that it would effectively reduce particulate emissions from residential wood smoke. We believe that a two-stage curtailment program encourages responsible wood burning by clearly identifying clean-burning appliances and prohibiting the use of appliances that are not clean-burning, thus encouraging more consumers by substituting clean appliances for old conventional stoves (hereinafter, “conventional stoves”).

On the other hand, a one-stage curtailment program, as in the current proposal, has significant flaws. First, the program sends the public the wrong message about EPA-certified stoves and pellet stoves. By lumping such clean-burning appliances with more dirty-burning appliances, such as conventional stoves and open-burning wood fireplaces, the incentive for homeowners in the Valley to switch voluntarily from dirty- to clean-burning appliances is eliminated. Second, there will be a negligible air quality benefit from prohibiting such appliances when the AQI has a value of over 150 but below 170. Finally, the Air District has failed to show why there are fewer enforcement issues in implementing a one-stage curtailment program, and that if indeed there are fewer enforcement issues, that those issues overcome the problems presented by a one-stage curtailment program.

HPBA and the affiliates strongly urge the Air District to reconsider its proposal for a one-stage curtailment program, and to instead promulgate a two-stage curtailment program. We contend that the Valley's air quality will be improved more through the use of a two-stage curtailment program because of (i) the negligible improvement in air quality presented by a one-stage approach and (ii) the continued governmental support of clean- burning appliances.

1. A One-Stage Curtailment Sends a Negative Message to the Public About Clean-Burning Wood Appliances.

 

The dramatic reduction in particulate emissions, when comparing conventional and EPA-certified stoves, has been demonstrated and endorsed by the U.S. EPA. Emissions are 90% lower from EPA-certified stoves than from conventional stoves. Retailers and manufacturers, in fact, are prohibited from selling new conventional stoves – and have been since 1992 – anywhere in the United States. Other jurisdictions in the United States, including Denver; Seattle; Albuquerque; Salt Lake City; and Eugene, Oregon, recognize the inherent advantages of EPA-certified stoves and pellet stoves. See also Section III.B.3.a, below. All of these plans for two-stage curtailment programs have been approved by the U.S. EPA as part of State Implementation Plans. Pellet stoves have also been shown to emit far fewer particulates than do conventional stoves. U.S. EPA, Residential Wood Combustion Technology Review, Volume 1, Technical Report, at 6 (December 1998).

Not only do these jurisdictions recognize these clean-burning appliances, but the Air District also recognizes them. First, this very proposal would prohibit conventional stoves, in favor of EPA-certified stoves or pellet stoves, when real property is sold or transferred. Rule 4901 § 5.2 (as proposed, April 11, 2003). Second, as recently as this fall, many homeowners in the Valley purchased EPA-certified stoves and pellet stoves based on the Air District's own public information program over the last nine years. This program has encouraged residents who own conventional stoves to upgrade to EPA-certified stoves. HPBA and the affiliates assisted the Air District staff in three public press events, as recently as November 2002, at which conventional stoves and EPA-certified stoves were operated and their emissions compared. If the Air District's current proposal is promulgated, residents who changed out their conventional stoves for EPA-certified stoves will find that their investment entitles them to no different treatment than if they had kept their old, dirty-burning stoves.

The refusal of the Air District to propose a two-stage curtailment in the April 11, 2003 notice thus sends a negative – and confusing – message to homeowners in the Valley. On the one hand, the U.S. EPA prohibits the sale of conventional stoves and the Air District is proposing to prohibit them operating in homes that are sold or transferred. The Air District has also encouraged the replacement of conventional stoves with EPA-certified stoves. On the other hand, however, the Air District will not recognize the emission-reduction advantages of these appliances when particulate levels in the Valley are high. HPBA and the affiliates believe that the Air District must be consistent – i.e., it must either recognize the advantages of clean-burning appliances or ignore them entirely. The Air District cannot say that for one purpose, these appliances are clean-burning, but for another, they are not. If the Air District wants to maintain consistency and promote the purchase and use of these clean-burning appliances, it must avoid such a negative and confusing message.

The Air District also asserts that an “effective” air rule “stimulates and encourages the development of new control technology to satisfy the rule requirements and public need.” Draft Staff Report, Amendments to Rule 4901 (Wood Burning Fireplaces and Wood Burning Heaters), San Joaquin Valley Unified Air Pollution Control District, at 25 (April 11, 2003) (hereinafter, “Staff Report”). HPBA and the affiliates agree with the statement in general, but not in its application to a one-stage curtailment program. The hearth industry has already developed two technologies – at least one in response to the need for lower emissions – that emit significantly lower levels of particulates. Notwithstanding this response, the Air District has proposed to lump those low-polluting technologies together with open wood burning fireplaces and conventional stoves. Quite simply, the Air District has violated its own position. A two-stage curtailment plan – just like a one-stage curtailment plan – will encourage manufacturers of open wood burning fireplaces to develop new control technologies. But a one-stage curtailment plan will not encourage the development of clean-burning stove technology; that technology has been on the market for more than ten years and is endorsed and promoted by the U.S. EPA.

2. Little or No Incremental Air Quality Benefit Will Be Realized by Prohibiting the Use of Clean-Burning Appliances as Part of a One-Stage Curtailment.

 

The damaging message of lumping conventional and clean-burning appliances in a curtailment program will be compounded by the negligible air quality benefit that will be realized by such a program. Because there are so many more conventional stoves in the Valley, and because clean-burning appliances emit such low levels of particulates, the Air District will realize almost no benefit from a one-stage program as compared to a two-stage program.

Statistics show that on a national basis, conventional stoves outnumber clean-burning appliances by a ratio of over nine to one. Despite the prohibition on the sale of new conventional stoves for over ten years, there remain a plethora of such dirty-burning stoves because they are very simple in design and extremely durable. Without such a requirement, the overwhelming source of particulates in the Valley – conventional stoves – will keep operating unabated. We estimate that, of the particulates in the Valley emitted from residential wood burning, over 90% comes from conventional stoves.

On days with high levels of particulates in the Valley, the incremental benefit of curtailment from controlling clean-burning EPA-certified appliances will be negligible – and well within the difference estimated by the Air District's own plan for particulate matter with a diameter of ten microns or less (hereinafter, “PM10”). The Air District's PM10 Plan estimates that the total wood smoke contribution in the Valley is 22.9 tons per day on an episodic basis, while the estimated reduction attributed to the total effect of Rule 4901, as revised, would be 18.3 tons per day. San Joaquin Valley Air Pollution Control District, Proposed 2003 PM10 Plan, San Joaquin Valley Plan to Attain Federal Standards for Particulate Matter 10 Microns and Smaller, at 4-41. The Air District is thus claiming that Rule 4901, as revised, would be 80% effective. The Air District has not demonstrated that the de minimis contribution of the second stage of a two-stage curtailment program would change the claimed effectiveness of this rule. In fact, the Air District has simply not considered the contributions of limiting the operation of clean-burning appliances in its Staff Report. See Appendix B, Staff Report. We find it difficult for the Air District to specifically conclude that conventional and clean-burning appliances should be lumped together in a curtailment program – after having previously proposed a two-stage curtailment program – without examining the relative contributions of these two kinds of appliances. Before the Air District imposes a one-stage program that ignores clean-burning appliances, it should establish that ignoring the advantages of such appliances – and the message it sends to public – is justified. To date, the Air District has not done so.

3. The Air District Has Provided Insufficient Justification for Rejecting Its Previously-Proposed Two-Stage Curtailment Approach.

 

The Air District asserts in its Staff Report that a one-stage curtailment approach will "make the rule easier to understand and more effective." Staff Report, at 8. Later, the Air District also asserts that a one-stage curtailment plan would be easier to enforce. Id., at 10 and 16. HPBA and the affiliates strongly disagree with these statements.

First, while an all-or-nothing approach is easier to understand than a two-stage approach, two-stage curtailment approaches have been demonstrated successfully in the field. Second, as discussed in Section III.B.2, above, a one-stage curtailment plan is not demonstrably more effective than a two-stage curtailment plan because the incremental reduction in particulate emissions is negligible. Finally, enforcement will not be easier. A one-stage approach will also be a blunt instrument to improve air quality in strictly circumscribed areas – temporally and geographically – that may have high levels of particulate emissions from residential wood combustion.

a. Two-Stage Curtailment Approaches Have Been Successfully Demonstrated in the Field.

 

The Air District states that a one-stage curtailment program will be easier to understand. Staff Report, at 8, 10, and 16. HPBA and the affiliates will not get into a debate about whether something with one step is simpler than something with two steps. At face value, that is self-evident.

The more relevant question is whether the two-step curtailment program is difficult for homeowners and the public at large to understand. The clear answer is no.

There is a demonstrated track record of success in the use of two-stage curtailment plans in other jurisdictions. If there were problems, they would have already been identified. They have not.

The Air District is directed to the successful experiences of Denver; Seattle; Albuquerque; Salt Lake City; and Eugene, Oregon, among other jurisdictions, with two-stage curtailment approaches. These large jurisdictions have amply demonstrated that two-stage curtailment approaches are understandable to homeowners and that they do work. We challenge the Air District to show why homeowners in the Valley are so different that a two-stage curtailment program would not be understood or succeed here. The Air District cannot propose a one-stage curtailment program, using justifications that don't match real world experience.

b. A One-Stage Curtailment Plan, When Compared to a Two-Stage Curtailment Plan, Achieves Almost No Incremental Reduction in Particulate Emissions.

 

In Section III.B.2, above, we argued that there is no significant incremental reduction in particulate emissions by regulating clean-burning appliances. The additional emissions reduction realized in the Valley would not significantly alter the claimed 80% effectiveness of the rule, as proposed, in reducing wood smoke emissions. The 18.3 tons per day reduction of particulates will be more than achieved by the absence of fireplaces and conventional stoves. We request that the Air District justify why this inconsequential reduction in particulate emissions should be imposed on the homeowners of the Valley.

c. The U.S. EPA Specifically Suggested that the Air District Consider a Two-Stage Curtailment Plan.

 

The Air District appears to disregard the U.S. EPA's explicit suggestion that it consider a two-stage curtailment program. In its limited approval/disapproval, the U.S. EPA initially said that, “The District should consider whether limiting the curtailment to open fireplaces and non-certified devices, the largest emitters of PM-10 and smoke, is appropriate or whether a more broad-based curtailment is necessary.” 67 Fed. Reg. 5,725, 5,725 (February 7, 2002). While this statement appears to direct the Air District to consider both a one- and two-stage curtailment program, the following sentence in the U.S. EPA's Federal Register notice clearly lends weight to serious consideration of a two-stage curtailment program, as it appears that the U.S. EPA favors such a program: "A limited mandatory curtailment program could be incorporated as part of the voluntary curtailment program and could give the District authority to enforce on open fireplaces and non-certified devices in the vent of public complaint." Id.

Given the demonstrated track record of two-stage curtailment programs, and its apparent preference by the U.S. EPA, HBPA and the affiliates believe that the burden is on the Air District to adequately justify its choice of a one-stage curtailment program. It has not yet done so.

d. A One-Stage Curtailment Plan Will Be More Difficult to Enforce than a Two-Stage Plan, and a One-Stage Curtailment Plan Will in Fact Impose Controls on Areas Without Obtaining Meaningful Reductions in Particulate Emissions.

 

The Air District repeatedly avers that a one-stage curtailment plan is easier to enforce than a two-stage plan. Staff Report, at 8, 10, and 16. It does not explain anywhere in the Staff Report, however, why this is so. The omission is critical because it appears to be the main rationale for the Air District's shift from a two- to a one-stage plan. HPBA and the affiliates believe that, contrary to the Air District's assertions, a two-stage curtailment program is more effective and easier to enforce.

In both a one- and a two-stage curtailment program, at least some homeowners would be prohibited from operating their hearth appliances. The enforcement mechanism will have to be a combination of local officials and neighbors observing whether smoke is being emitted from a home. Because EPA-certified stoves and pellet stoves do not emit visible emissions, a one-stage curtailment will not present any advantages over a two-stage curtailment.

In a one-stage curtailment plan, use of all wood burning appliances will have to cease. The easiest means of enforcing the curtailment would be by observing chimneys and flues for wood smoke emissions. Appliances that are not clean-burning will be in compliance if there are no visible emissions – i.e., if they are not being operated. Clean-burning appliances, such as EPA-certified stoves and pellet stoves, will be in apparent compliance whether or not they are not being operated because these appliances do not emit visible smoke. As a result, the only way to ensure compliance with a one-stage curtailment will be through use of the so-called “smoke police” making invasive inspections of homes.

In a two-stage curtailment plan, the use of appliances that are not clean-burning will have to cease, just like during the first stage. Enforcement will be straight-forward: any home with visible smoke being emitted from a chimney or flue will be in violation of the curtailment plan because the hearth appliances that emit visible smoke are prohibited from being operated during that stage. During the second stage, all hearth appliances will be prohibited from operation. Again, enforcing compliance in homes with dirty-burning appliances will be easy. For homes with clean-burning appliances, the same problems as during a one-stage curtailment will be presented because there are no visible emissions that can be used to determine compliance. An important difference is that the need for active (i.e., invasive) enforcement of prohibitions on the use of clean-burning appliances will be significantly reduced. So while the same problem presents itself whether the curtailment is one-stage or two-stage – determining compliance in homes with clean-burning hearth appliances – the problem will occur much less often. Enforcement will therefore be easier in a two-stage program.

By using a two-stage program, however, the Air District would send a message to those homeowners who own conventional stoves or inserts, but are not selling or transferring their homes: that voluntarily upgrading to a clean-burning appliance will help the air quality in the Valley, since the use of clean-burning appliances will not be prohibited in the first stage. In addition, because of the negligible decrease in particulate emissions that are possible from clean-burning appliances, a two-stage program allows the Air District to initially focus its enforcement program on the real contributors of particulates from residential wood combustion, without having to determine compliance by homeowners operating clean-burning appliances. HPBA and the affiliates believe that the most effective enforcement approach is not a one-stage curtailment program, but a two-stage program. The Air District has yet to justify eliminating a two-stage curtailment program in favor of a one-stage program.

e. The Air District Has Inadequately Limited the Scope of Its Curtailment Program.

 

Curtailment programs, whether they be one- or two-stage, also present a problem of scope. Because of the extent of the Valley – six counties encompassing several cities and large expanses of rural land – a “one-size-fits-all” approach for curtailments will not suffice. The Air District has recognized the distinction between rural, suburban, and urban areas during the hearings held in the beginning of May, 2003. The Air District has even made provisions for exempting some rural homes from coverage under the curtailment program: homes above 3,000 feet in altitude, where natural gas service is not available, and in which wood is the only source of heating. Rule 4901, § 5.6.2 (as proposed, April 11, 2003). This approach, however, falls far short.

One comment (Comment 10) states that the Air District should adopt “Smoke Control Zones” so that, “[I]f Fresno County is having a fireplace smoke problem on a given day, that does not necessarily mean the air in eastern Madera County is similarly affected.” Staff Report, at 18-19. The Air District responded that it is currently developing such zones. Id., at 19.

Based on comments made by Mr. Tom Jordan of the Air District at the public hearings just held on this proposal, it is our understanding that the Air District is developing zones based on the six counties that make up the Valley. This approach is inadequate. Each county encompasses rural, suburban, and urban areas. The Air District's approach will therefore continue to ignore the different potentials for each kind of area to contribute to high particulate levels from residential wood burning. Indeed, within urban areas, different neighborhoods will have different potentials for contributing particulates. A prime example is the First Street site in Fresno, which contains a disproportionately high density of fireplaces in the immediate vicinity of the monitor which, if extrapolated to the entire Valley, would account for 21 million such appliances – a significantly overstated estimate. The Air District must therefore develop a sufficient number of air quality zones so that only areas that are actually contributing particulates are targeted by curtailment programs.

4. The Air District Should Reinstate the Two-Stage Curtailment Program that Was Proposed in December.

 

HPBA and the affiliates strongly urge the Air District to reinstate the two-stage curtailment program for hearth appliances. A two-stage program would send a positive message to homeowners in the Valley that clean-burning hearth appliances already on the market – and endorsed by the U.S. EPA – should be purchased. In addition, a one-stage program would result in almost no incremental benefit in reducing particulates from residential wood combustion. In fact, the U.S. EPA appeared to have endorsed a two-stage program, which is already used successfully in several major western cities. Finally, counter to the Air District's assertions, there is no enforcement benefit available in a one-stage curtailment program. HPBA and the affiliates support the clean burning of wood, but not the over-regulation of wood burning appliances.

C. The Density Limits for Wood Burning Appliances Are Too Stringent and Are Arbitrary.

The Air District has chosen an arbitrary set of density limits for wood burning appliances in new developments in the Valley, without a nexus to monitored data or a rationale justifying the limits. In addition, the U.S. EPA's limited disapproval of the Valley's PM10 plan does not mandate such limits. Finally, the density limits should exempt the same clean-burning appliances as for the transfer and sale of real property, and use the same criteria for exempting homes from curtailments.

1. The Air District Has Not Justified Its Proposed Density Limits.

 

The Air District has used a results-oriented approach to justify its proposed density limits. Such an approach is wholly inappropriate for a rulemaking that will affect an area as large as the Valley.

The Air District has failed to explain how it chose the parameters for the proposed density limits – the two-dwelling per acre threshold for prohibiting the installation of wood burning appliances and the limit on the number of appliances allowed in residential developments with two or fewer dwellings per acre. See Staff Report, at 10-11, 35-39. Without a rationale, these parameters are arbitrary and capricious.

The Air District has also made assumptions, without data, on the efficacy of the density limits, thus justifying the imposition of the limits themselves. Such circular reasoning cannot be used as the underpinning of a regulation that will have significant effects on residents of the Valley who choose to live in houses constructed after the effective date of the amendments to Rule 4901.

The Staff Report says that, based on the knowledge that the trend in new housing was for more dense development,

[T]he staff estimated that 90% of the emissions attributed to growth in this source category from the emissions inventory would be impacted by the density limit requirement in the rule and was then able to estimate the emissions reductions from density limits on new housing developments for the 2004 year.

Draft Staff Report, at 39 (emphasis added).

The basis for the 90% estimate is not provided. As a result, the Air District staff appears to have decided that 90% was a “good number,” and based on that, back-calculated reductions. The limits at face value appear to be appropriate because they result in large reductions in particulates. This, of course, is because the Air District staff chose a 90% impact from density limits before calculating the actual reduction in emissions. This is a classic results-oriented process, and cannot be used to justify a regulation with significant environmental stakes and economic ramifications. The Air District must provide a detailed, credible rationale for the density limits that it has chosen.

2. The U.S. EPA's Limited Disapproval of the Air District's Plan Does Not Justify the Density Limits that Were Chosen.

The notice published by the U.S. EPA, containing the limited disapproval of the Air District's plan, did not endorse the density limits that were proposed on April 11, 2003. See 67 Fed. Reg. 5,725, 5,726 (Feb. 7, 2002). In fact, no density limits were proffered. It simply says that "The District should consider . . . limit[ing] the number of wood stoves and fireplaces per acre in new construction." Id.

HPBA and the affiliates again request that the Air District provide the justification for the limits actually chosen in the April 11, 2003, proposal. Without a reasoned basis for those limits, the proposal is fatally flawed substantively and procedurally.

3. The Air District Should Exempt Clean-Burning Hearth Appliances from the Density Limits, as Suggested by the U.S. EPA.

 

Unlike the proposed provisions for the sale or transfer of real property, Rule 4901, § 5.2.1 (as proposed, April 11, 2003), there is no exemption for clean-burning appliances in the proposed density limits. See Rule 4901, § 5.3 (as proposed, April 11, 2003). The Air District has not established why clean-burning appliances would be allowed in older residences that are sold and transferred, but not in residences built after these proposals would go into effect. This is especially puzzling, given the fact that clean-burning hearth appliances emit a mere fraction of the particulates emitted by conventional stoves and fireplaces.

The U.S. EPA, in its notice of limited approval and disapproval of the Air District's plan, specifically said, with respect to density limitations, that, “The District should consider . . . limit[ing] the number of wood stoves and fireplaces per acre in new construction and require EPA-certified phase II standards on those being installed.” 67 Fed. Reg. 5,725, 5,726 (Feb. 7, 2003) (emphasis added). This language appears to envision the installation of clean-burning appliances in deriving density limits. If not, there was no reason for the U.S. EPA to include the emphasized language, because it is already federal law that only EPA-certified stoves may be sold. 40 C.F.R. § 60.533(j)(ii) (2003).

HPBA and the affiliates believe that the density limitations should apply to conventional stoves and wood burning fireplaces, but not to clean-burning appliances, such as EPA-certified stoves and pellet stoves. The exemption under the proposed provisions covering the sale and transfer of real property, as well as the U.S. EPA's directions in its limited disapproval, should be adequate justification.

4. The Air District Should Exempt the Same Homes from Density Limits that Are Exempted from Curtailments.

 

The proposed provisions governing density limitations also fail to take rural homes into account. In the proposed provisions governing curtailments, the Air District exempts three kinds of homes: those at altitudes over 3,000 feet, those where natural gas service is not available, and those in which wood is the sole source of heat. Rule 4901, § 5.6.2 (as proposed, April 11, 2003). The Air District has not provided a rationale for not excluding new developments with homes that satisfy any one of those three conditions.

There may be an assumption made that no new developments in the Valley will meet any of those conditions. Even assuming that new developments in the Valley are not built at a density of greater than two dwelling units per acre under proposed Section 5.3.1– an assumption with which we do not agree – rural developments (i.e., those satisfying at least one of the three conditions in Section 5.3.2) will still be required to limit the number of wood burning fireplaces or heaters to only one per residence. Rule 4901, § 5.3.2 (as proposed, April 11, 2003). Any homeowner in a new residence meeting any of the three conditions proposed for Section 5.6.2, as proposed, will be subject to a hardship as a result of these proposals. For example, a new development in which homes use wood fuel as their sole source of heating will be limited to one wood stove per home – even though such appliances are touted for their zone-heating attributes, not for heating an entire home.

The Air District should apply the exemptions in Section 5.6.2, as proposed, to the density limitations in Section 5.3.

D. The Air District Should Specifically Treat Gas Logs As Clean-Burning Hearth Appliances in Rule 4901.

 

HPBA and the affiliates strongly urge the Air District to specifically include gas logs as an option for reducing particulates from residential wood combustion. Gas logs are appliances that (i) burn natural gas or propane, (ii) have burners designed so that their flames resemble the flames from wood burning, and (iii) are part of a concrete or refractory fiber simulation of a set of wood logs, which is affixed to the hearth of the appliance. Substituting a gas log in a wood burning fireplace for a wood burning fireplace reduces particulate emissions to almost zero. Rule 4901 should promote such substitutions, which will improve the air quality of the Valley.

Specifically, HPBA and the affiliates suggest that the following changes be made to Rule 4901, as proposed on April 11, 2003 (strikeouts indicate language to be removed; underlines indicate language to be added):

    1. § 5.1.1, as proposed: “ . . . Phase II Certified, <s>or</s> is a pellet-fueled wood burning heater, or is a gas log installed into a wood burning fireplace.”
    2. § 5.1.2, as proposed: “ . . . Phase II Certified, <s>or</s> is a pellet-fueled wood burning heater, or is a gas log installed into a wood burning fireplace.”
    3. § 5.3.3, new: "The provisions in Section 5.3 shall not apply to a gas log installed into a wood burning fireplace."
    4. § 5.6.4, as proposed: Change the designation of currently proposed § 5.6.3 to § 5.6.4.
    5. § 5.6.3, new: "A gas log installed into a wood burning fireplace is not subject to the provisions of Section 5.6.2."

IV. The Air District's Proposals for Rule 4901 Raise Environmental Justice Issues.

HPBA and the affiliates are concerned that the density limitations in the current proposal, Rule 4901, § 5.3 (as proposed, April 11, 2003), if implemented, would create environmental justice issues. Simply put, residential wood combustion would be put out of the financial reach of many of the less affluent citizens of the Valley. Many of the less affluent citizens of the Valley are Hispanic, and they would bear a disproportionate burden of this proposed provision.

The density limitations would apply to all new residential construction in the Valley. Rule 4901, § 5.3 (as proposed, April 11, 2003). If the density of homes in the new development is greater than two dwelling units per acre, then no wood burning appliance will be permitted. Rule 4901, § 5.3.1 (as proposed, April 11, 2003). If the density of homes in the new development is equal to or less than two dwelling units per acre, then no more than one wood burning appliance will be permitted. Rule 4901, § 5.3.2 (as proposed, April 11, 2003).

The result of this construct is that the less affluent citizens of the Valley – particularly Hispanic citizens – would not be allowed to own a wood burning appliance in their new homes. More affluent citizens, on the other hand, would have the option of installing one wood burning appliance in their homes. Because of these inequitable effects, HPBA and the affiliates strongly recommend that the Air District reexamine its density limitations.

V. The Air District May Have Difficulties in Comporting with Due Process Requirements.

The Air District is proposing to amend Rule 4901, as well the entire PM10 plan for the Valley, in order to comply with statutorily-set deadlines under provisions of the federal Clean Air Act. The Staff Report notes that the U.S. EPA's eighteen-month sanction clock for correcting identified deficiencies in Rule 4901 runs out on September 11, 2003. Staff Report, at 8. After this deadline, the U.S. EPA will impose increased emission offset ratios upon the Valley. Id. A second sanction, the withholding of federal highway funds, would be imposed if the Air District is still out of compliance by March 11, 2004. As the Air District notes, this second sanction is serious in that it extends to federally-funded projects involving not just road construction, but also mass transit, rail and airport facilities, pedestrian facilities, and other transportation-related programs. Id. at 8-9. No one can dispute that such sanctions are extremely serious and should be avoided at all costs.

These deadlines, and the late date of these proposals to amend Rule 4901, present possible logistic due process problems for the Air District. Californias Health and Safety Code, which governs all thirty-five air districts in the state, requires that:

Following consideration of all relevant matter presented, a district board may adopt, amend, or repeal a rule or regulation, unless the board makes changes in the text originally made available to the public that are so substantial as to significantly affect the meaning of the proposed rule or regulation. The board shall not take action on a changed text before its next regular meeting, and shall allow further statements, arguments, and contentions, either written, oral, or both, to be made and considered prior to taking final action.

California Health and Safety Code, § 40726 (2003).

The Air District states that the tentative time of a hearing on the proposed changes to Rule 4901 will be in July 2003. Staff Report, at 9. Subsequent oral communications with Air District staff place the tentative date of the hearing on July 17, 2003. As a result, a notice of the hearing on Rule 4901, accompanied by the proposed rule changes, must be made available to the public by June 17, 2003. California Health and Safety Code, § 40725(b) (2003).

In light of the stringent federal deadlines, the Air District is thus faced with a difficult procedural situation. The Air District could review comments on the April 11, 2003, proposal after May 23, 2003, the comment deadline, and make all substantial changes to that proposal in time for the June 17, 2003, notice. In that way, should the hearing on July 17, 2003, result in no additional substantial changes, then the Board of Supervisors of the Air District could approve the proposed amendments to Rule 4901 as published on June 17, 2003, and would have no procedural impediments to completing the rule change before the September 11, 2003, federal deadline.

If, on the other hand, the Air District does not or cannot incorporate all substantial changes that it intends to make before June 17, 2003, it would not, under the provisions of the California Health and Safety Code, be able to promulgate a final set of rule changes to Rule 4901 until its next regular meeting after July 17, 2003, because thirty days' notice of the new language would be required. California Health and Safety Code, §§ 40725(b), 40726 (2003). That scenario may put the Air District in the difficult position of not complying with the September 11, 2003, deadline, and subjecting the Valley to the initial set of offset sanctions under the federal Clean Air Act. The practical result of these procedural requirements is that the Air District must quickly propose any substantial changes to the proposed revisions to Rule 4901 – so that they are in place in time to comply with the notice requirements for the July 17, 2003, meeting – or encounter federal sanctions.

HPBA and the affiliates are concerned that this tight, unforgiving schedule, with the prospect of sanctions, imposes an unfair pressure on the Air District's staff, and ultimately its board, to not make substantial changes to the text of the amendments to Rule 4901. As a result, we are concerned that several of the changes to the proposal made in these comments – which we believe qualify as substantial changes to the extant proposal – may receive short shrift in order to avoid the threat of sanctions. Such an outcome would most certainly constitute a denial of due process in the promulgation of amendments to Rule 4901.

In order to avoid such a scenario, HPBA and the affiliates urge the Air District to give our comments and suggestions for improving the rule the most serious consideration, and to modify the present proposal in time for the June 17, 2003, notice of the July 17, 2003, board meeting. We remain, of course, ready to promptly answer any questions and to provide any supplementary information that the Air District would require.

VI. The Air District's Proposals for Rule 4901 Are Flawed and Must Be Amended.

For the reasons stated above, HPBA and the affiliates urge the Air District to reconsider its proposals to Rule 4901, dated April 11, 2003. We have supported the practice of responsible wood burning, but find that the Air District's proposals (i) send the wrong message about clean-burning appliances, (ii) over-regulate those appliances, and (iii) overestimate the impact of lumping clean-burning appliances together with conventional hearth appliances. Compounding the problem is that the Air District has failed to provide adequate justification for many parts of its proposal, and so appears to have proposed arbitrary and capricious regulations. Most importantly, HPBA and the affiliates believe that, due to these shortcomings, the Air District will not be able to meet its target particulate levels, at least based on expected reductions from residential wood combustion.

HPBA and the affiliates urge the Air District to revise its proposals to reinstitute a two-stage curtailment program, in which the first stage exempts clean-burning hearth appliances. We also urge the Air District to modify its density limitations by using limits that are supported by data – which we believe will result in less stringent limits – and to exempt clean-burning hearth appliances and rural homes. Finally, we request that the Air District define clean-burning appliances to include gas log sets installed in fireplaces, in order to eliminate any confusion over their status.

HPBA and the affiliates are committed to having an effective regulation that reduces particulate emissions from wood burning appliances in the Valley. We believe that our comments will move the proposed revisions to Rule 4901 closer to that goal.

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