MI Legislature Passes Law Barring MDEQ From Enforcing A Proposed EPA Regulation Limiting Emissions From Wood Heaters

By Michael J. Pattwell / Dec 29, 2014

On February 3, 2014, the U.S. Environmental Protection Agency ("EPA") published proposed revisions to 40 C.F.R. Part 60, subpart AAA, New Source Performance Standards ("NSPS") for New Residential Wood Heaters, pursuant to Section 111(b)(1)(B) of the Clean Air Act ("CAA"). 79 Fed. Reg. 6330 (Feb. 3, 2014). The EPA says that the amendment is "aimed at achieving several objectives for new residential wood heaters and other wood-burning appliances, including applying updated emission limits that reflect the current best systems of emission reduction; eliminating exemptions over a broad suite of residential wood combustion devices; strengthening test methods as appropriate; and streamlining the certification process."

Manufacturers of heating appliances and a number of trade associations, however, have come out in opposition to the EPA's proposed standards contending that they are so stringent that the higher production costs would either force them out of business or raise prices so high that many consumers could no longer afford their products. Several federal and state officials in colder regions have also expressed concerns that the new standards will adversely affect millions of Americans who rely on wood as their primary source heat in the winter. According to the U.S. Census Bureau's 2011 survey statistics, 2.4 million American housing units (12% of all homes) burned wood as their primary heating fuel, compared with 7% that depended upon fuel oil.

Weeks after the EPA published its proposed rule, several states and environmental groups brought suit in the U.S. District Court for the District of Columbia alleging that EPA had failed to perform a nondiscretionary duty to review, and, if necessary, revise the new performance standards for new residential wood heaters, at least every eight years. Shortly thereafter, EPA stipulated to a proposed consent decree which required the agency to sign a Federal Register notice taking final action on its proposed rule amendment no later than February 1, 2015. 79 Fed. Reg. 26752 (May 9, 2014). The consent decree has been heavily criticized with some calling it the type of "sue-and-settle rulemaking" condemned by, among others, the U.S. Chamber of Commerce and U.S. Senator David Vitter (Louisiana) who is leading an investigation into the opaque practice.

On December 16, 2014, the Michigan Legislature, led by State Senator Tom Casperson, passed Senate Bill 910 which - if signed by the Governor - will amend Part 55 of Michigan's Natural Resource and Environmental Protection Act ("NREPA") to prohibit the Michigan Department of Environmental Quality ("MDEQ") from: (i) promulgating any rule that limits emissions from wood heaters; and (ii) enforcing any federal regulation -- adopted after May 1, 2014 - that limits emissions from wood heaters. The action comes after Missouri enacted a law that prohibits its Department of Natural Resources from regulating the manufacture, performance, or use of residential wood burning appliances and after 16 federal congressional leaders introduced a bill that would require EPA to set reasonable limits on the stringency and timing of proposed regulations for new residential wood heaters.

For more information on the EPA's New Source Performance Standards for New Residential Wood Heaters or Michigan Senate Bill 910, contact Michael J. Pattwell at (517) 318-3043 or mpattwell@clarkhill.com.