Law 360: NY Court Blocks Extension On Wood Boiler Sales



By Martin Bricketto
Law360, New York (May 25, 2011) -- A New York judge on Tuesday blocked the state Department of Environmental Conservation from implementing an emergency rule extending until July the sale of air-polluting outdoor wood boilers that do not meet revamped emissions regulations.

In a ruling from the bench, Judge Thomas McNamara granted the request for a preliminary injunction by American Lung Association in New York and the Environmental Advocates of New York, who contended the boilers constitute a public health hazard that can worsen asthma symptoms and additionally contribute to global warming.

The groups said that the outdoor wood boilers at issue are a substantial source of air pollution, and that a single unit can emit as much fine particulate matter as 1,000 oil furnaces. Additionally, the boilers emit carcinogens that can cause eye, nose and throat irritation and hamper lung function, the groups said.

“DEC was wrong to adopt an emergency rule that put New Yorkers’ health at risk in the first place,” said Michael Seilback, vice president of communications and public policy with the New York ALA, in a statement Tuesday announcing the ruling. “We look forward to a favorable ruling that puts a final halt to the sale of these polluting units that deprive New Yorkers of the clean, healthy air they need and deserve.”

The DEC last year adopted regulations setting requirements on boilers sold after April 15. However, on that date, the agency announced the adoption of the emergency rule extending the sell-through date of the regulations by 90 days, allowing a distributor during that time to sell any noncertified outdoor wood boilers that it had in stock when the extension was issued.

The groups said the DEC cited “unsubstantiated economic reasons.”

Hannah Chang of EarthJustice, which is representing the groups, said Wednesday that Judge McNamara found they had succeeded on the necessary criteria for granting a preliminary injunction: likelihood of success, irreparable harm and balance of equity.

Among other reasoning, the judge was concerned that economic reasons alone did not justify the emergency rule, Chang said.

The court is set to decide the merits of the suit on June 20, according to the groups.

A DEC representative did not immediately return a request for comment Wednesday.

The groups said that sales of the boilers in New York increased from 606 units in 1999 to roughly 2,640 units in 2007, during which the products have gone largely unregulated.

The U.S. Environmental Protection Agency has a voluntary program to entice manufacturers of the boilers to achieve certain emissions limits. Some municipalities have regulated the boilers in response to public complaints, but the DEC had no effective regulations in place until the pollution limits adopted in December, the groups said.

Ross Gould, air and energy program director with the Environmental Advocates of New York, said in a statement that state residents could "breathe easier" because of Tuesday's ruling.

“The Department of Environmental Conservation’s fake ‘emergency’ has been called off, and everyone who cares about clean air is grateful," Gould said.

The groups are represented by Hannah Change, Deborah Goldberg and Marianne Engelman Lado of EarthJustice.

The case is the American Lung Association in New York et al. v. New York Department of Environmental Conservation, case number 3376-11, in the Supreme Court of the State of New York, Albany County.