Via Facsimile, E-Mail & U.S. Mail
or Telephone 916.449.9507

Ariel Calonne, Esq.
City Attorney
City of Palo Alto
250 Hamilton Avenue
Palo Alto, California 94301

Dear Mr. Calonne:

....and also.....

Richard Doyle, Esq.
Senior Deputy City Attorney
City of San Jose
151 West Mission Street
San Jose, California 95110

Dear Mr. Doyle:

In recent discussions pursuant to settlement of our pending litigation, you requested further information, which you believed, would expedite resolution of our dispute by illuminating the role and responsibilities of EPA-licensed air quality measurement laboratories, to which we propose your City entrust the task of determining ÒequivalenceÓ under Title 40, Code of Federal Regulations, Part 60.

You have also expressed interest in the membership of our organization, California Hearths & Homes. IÕd like to address the two matters in reverse order.

California Hearths & HomesÕ Membership:

California Hearths & Homes was organized in April, 1999, to provide the masonry fireplace industry a voice in public affairs. The BAAQMD had just concluded that its most appropriate response to fears of potential future PM 10 and PM 2.5 exceedances was a ÒmodelÓ woodsmoke ordinance, its first step toward eliminating all woodburning.

Having observed the administrative process that spawned the ÒmodelÓ ordinance, some masonry fireplace engineers and masonry fireplace-component kiln owners understood the degree to which science had been tortured to achieve a political end. They feared that both the domestic woodfire and the ancient masonry fireplace, the oldest expression of the masonÕs craft, were at risk of extinction throughout the West unless the public and its officials became better informed about leading edge fireplace design and air quality.

Those fireplace industry ÒPaul ReveresÓ were Jim Buckley, founder and President of the Buckley-Rumford Company of Port Townsend, Wash-ington, and Jeff McNear, of McNear Brick and Block, Marin County, California.

Since McNear and Buckley launched California Hearths & Homes, the organization has grown significantly. Current dues-paying membership includes the following companies, as of August 1, 2001:

Membership Ð California Hearths & Homes

Agorra Building Materials Dublin, CA Amrock Redi-Mix Salinas, CA Bayside Building Materials San Mateo, CA Central Home Supply Santa Cruz, CA Concord Masonry Pleasant Hills, CA County Building Materials San Jose, CA Granite Rock Watsonville, CA Los Altos Garden Supply Los Altos, CA Maccon Masonry San Francisco, CA Morgan Bros. Patios San Leandro, CA MorganÕs Masonry Supply San Ramon, CA Peninsula Building Materials Redwood City, CA Shamrock Masonry Petaluma. CA South Bay Materials San Jose, CA The Buckley Rumford Co. Port Townsend, WA McNear Brick and Block Co. Marin County, CA Muddox Brick Company Newark, CA Western States Clay Products Torrance, CA Superior Clay Uhrichsville, OH

I would like to emphasize two aspects of California Hearths & HomesÕ membership that may not be immediately evident from the above list.

First, membership in California Hearths & Homes is directly reactive to the perceived excesses of the BAAQMDÕs ÒmodelÓ ordinance, not to woodsmoke emissions-control regulations generally.

The masonry fireplace industry favors rigorous regulation based upon peer-reviewed science. Designers, vendors, and builders of ÒbrandedÓ masonry fireplace models will be among the beneficiaries of woodsmoke controls based on emission factors. Throughout the West, ÒbrandedÓ masonry fireplace designers have cooperated effectively with other air quality regulatory jurisdictions to improve mutual understanding of woodsmoke dynamics, components, and measurement techniques.

Our members have relied on government agencies for design input and have provided their own technical documentation and practical experience to the same agencies, in support of technology-driving regulations.

Until the BAAQMD ÒmodelÓ woodsmoke ordinance adoption process, masonry fireplace interests required no formal advocacy organization because woodsmoke issues generally had been addressed objectively, within the scope of peer-reviewed scientific literature, and within the national tradition of regulation based on compliance with derived standards.

The BAAQMDÕs adoption of its ÒmodelÓ ordinance marked a sea-change in air quality regulation. In the San Francisco Bay region, the grossly expedient remedy of open fireplace ÒprohibitionÓ suddenly replaced enforcement of quantitative standards as the default response to woodsmoke concerns, making no distinction between the ÒcleanestÓ and ÒdirtiestÓ woodburning devices.

The BAAQMDÕs unprecedented action Ð and that action alone -- galvanized the diverse community of masons, brickmakers and masonry suppliers to create California Hearths & Homes.

Second, California Hearths & Homes wants fair regulation for the masonry fireplace, and its membership comprises masonry suppliers and craftsmen only. Although we have common interests with the broader hearth products industry, the economic impacts of the ordinance in question are quite obviously distinguishable: the language of the ordinance is an unequivocal, though indirect, declaration of ÒofficialÓ preference for manufactured fossil-fueled fireplace systems (available from your hearth products retailer) over site-built brick and mortar creations.

I mention this because you might note an absence of familiar Òfireplace retailersÓ among the membership, and you might remember other opinions ascribed in the press to Òthe fireplace industryÓ. There are Fireplaces, and there are fireplaces. Those who sell systems adequate to contain gas-log fires only, or woodstove retailers, may be less aggrieved by the facile irrationality of the BAAQMD ÒmodelÓ and may even welcome the retail sales increases that are likely to result. The many masons in the community, both large companies and one-truck craftsmen, comprise Òthe fireplace industryÓ to which we refer.

The Roles and Responsibilities of an EPA-Certified Air Quality Measurement Laboratory:

Representatives of the City AttorneyÕs Office have expressed some skepticism regarding the objectivity of the laboratories certified by the U.S. Environmental Protection Agency (EPA) for woodsmoke emissions measurement, and the reliability of the conclusions and opinions to which those laboratories would attest, in a statement of ÒequivalentÓ compliance.

I hope the following information will convey the breadth of technical expertise and experience, as well as the superfluity of public and private regulations, standards, sanctions and codes of professional conduct, that characterize the practice of EPA-licensed laboratory science.

Certification and Accreditation by the EPA:

There are four such laboratories, which have earned accreditation by the U.S. Environmental Protection Agency to confer ÒcertifiedÓ status to woodburning appliances. While the four may offer slightly different services to public and private clients, they all have been required to meet the strictures of EPA accreditation, as provided immediately below.

Of the four national laboratories licensed by the EPA to perform woodstove certifications, OMNI, located in Beaverton, Oregon, is nearest to the San Francisco Bay region and has the most substantive professional familiarity with Bay Area woodsmoke testing issues. (OMNI was the site of recent comparative analyses of woodstoves and fireplaces funded, in part, by the BAAQMD and the Northern Sonoma County Air Quality Management District, to which the BAAQMD has effectively delegated woodsmoke compliance protocol issues).

Because of its proximity, and OMNIÕs corporate awareness of the tech-nical and political issues bearing on the determinations of equivalent complianceÓ, OMNI is likely to be the laboratory of choice for such determinations, should our proposal for settlement of the pending litigation be accepted. Therefore, we will use OMNI as our ÒsampleÓ, for purposes of presenting the array of ÒoversightÓ agencies, associa-tions and professional licensing bodies which regulate the laboratories in question.

First among the regulatory authorities charged with ensuring the accuracy and reliability of OMNIÕs certifications of compliance is the EPA itself.

Federal Regulation:

Title 40, Code of Federal Regulations, Part 60, source of the entire woodburning appliance regulatory program, provides the conditions of accreditation and the consequences of failure to comply. Those sections are excerpted below. Those sections pertaining directly to circumstances involving misrepre-sentation of test data or results by an accredited laboratory (or those sections that otherwise address concerns expressed by representatives of the City AttorneyÕs Office) are emphasized.

40 CFR - CHAPTER I - PART 60

¤ 60.535 Laboratory accreditation.
(a)(1) A laboratory may apply for accreditation by the Administrator to conduct wood heater certification tests pursuant to ¤ 60.533. The application shall be in writing to: Emission Measurement Branch (MD-13), U.S. EPA, Research Triangle Park, NC 27711, Attn: Wood Heater Laboratory Accreditation.

(2) [Reserved]

(3) If accreditation is denied under this section, the Administrator shall give written notice to the laboratory setting forth the basis for his determination.

(b) In order for a test laboratory to qualify for accreditation the laboratory must:

(1) Submit its written application providing the information related to laboratory equipment and management and technical experience of laboratory personnel. Applications from laboratories shall establish that:
(2) (i) Laboratory personnel have a total of one year of relevant experience in particulate measurement, including at least three months experience in measuring particulate emissions from wood heaters,

(ii) The laboratory has the equipment necessary to perform testing in accordance with either ¤ 60.534(b) (1) or (2), and

(iii) Laboratory personnel have experience in test management or laboratory management.

(2) Have no conflict of interest and receive no financial benefit from the outcome of certification testing conducted pursuant to ¤ 60.533,

(3) Agree to enter into a contract as described in ¤ 60.533(g) with each wood heater manufacturer for whom a certification test has been performed.

(4) [Reserved]

(5) Demonstrate proficiency to achieve reproducible results with at least one test method and procedure in ¤ 60.534(b), by:

(i) Performing a test consisting of at least eight test runs (two in each of the four burn rate categories) on a wood heater identified by the Administrator,

(ii) Providing the Administrator at least 30 days prior notice of the test to afford the Administrator the opportunity to have an observer present, and

(iii) Submitting to the Administrator all documentation pertaining to the test, including a complete test report and raw data sheets, laboratory technical notes, and test results for all test runs,

(6) Be located in the continental United States,

(7) Agree to participate annually in a proficiency testing program conducted by the Administrator,

(8) Agree to allow the Administrator access to observe certification testing,

(9) Agree to comply with reporting and recordkeeping requirements that affect testing laboratories, and

(10) Agree to accept the reasonable cost of an RCA test (as determined by the Administrator) if it is selected to conduct the RCA test of a model line originally tested for certification at another laboratory.

(c) -- (d) [Reserved]

(e)(1) The Administrator may revoke EPA laboratory accreditation if he determines that the laboratory:

(i) No longer satisfies the requirements for accreditation in paragraph (b) or (c),

(ii) Does not follow required procedures or practices,

(iii) Had falsified data or otherwise misrepresented emission data,

(iv) [Reserved]

(v) Failed to participate in a proficiency testing program, in accordance with its commitment under paragraph (b)(5) of this section, or

(vi) Failed to seal the wood heater in accordance with paragraph (g) of this section.

(2) Revocation of accreditation under this paragraph shall not take effect until the laboratory concerned has been given written notice by the Administrator setting forth the basis for the proposed determination and an opportunity for a hearing under ¤ 60.539. However, if revocation is ultimately upheld, all tests conducted by the laboratory after written notice was given may, at the discretion of the Administrator, be declared invalid.

(f) Unless revoked sooner, a certificate of accreditation granted by the Administrator shall be valid:

(1) For five years from the date of issuance, for certificates issued under paragraph (b) of this section, or

(2) Until July 1, 1990, for certificates issued under paragraph (c) of this section.

(g) A laboratory accredited by the Administrator shall seal any wood heater on which it performed certification tests, immediately upon completion or suspension of certification testing, by using a laboratory-specific seal.

[53 FR 5873, Feb. 26, 1988, as amended at 60 FR 33925, June 29, 1995; 65 FR 61764, Oct. 17, 2000]

Violation of the provisions of these sections is a violation of the Clean Air Act (as amended, 1990) and enforced under Section 114 of that Act. Submittal of false test results is a criminal offense under the Act.

Additional Regulation by Non-Federal Public, And Private Bodies:

In addition to EPA sanctions against misrepresentation or falsification of test data and results, OMNI is also subject to non-federal regulation, both public and private.

There is a State Board of Engineering Examiners in every state that oversees the professionalism and engineering qualifications of every registered engineer. Under Oregon's laws (and California's for that matter), verified complaints of fraudulent misrepresentation of any statement attested to are punishable by revocation of license and incarceration.

OMNI is accredited by the California Air Resources Board (CARB) to perform air quality testing for permit applications submitted under the California Clean Air Act. Laboratory accreditation by CARB for emissions testing is covered under Section 91200-91220 of Title 17 of the California Code of Regulations (CCRs). Like the other criteria of professional conduct covering the measurement of air pollutant emissions, the subversion of an ordinance by falsely reporting test results (or anything else) would constitute a violation of the State's air quality laws in addition to felony fraud.

Accreditations and licenses are the bread and butter of firms like OMNI, such as accreditation by the American Association for Laboratory Accreditation, the International Conference of Building Officials (ICBO), the Standards Council of Canada, the State of North Carolina, the State of Washington, the U.S. Environmental Protection Agency, the State of New York, and the State of Colorado. Fraudulent reporting or even accusations of fraudulent behavior by the laboratory as an entity or by its employees can mean lengthy and damaging investigations well-reported in the trade press and possible revocation of accreditation and/or license. Like attorneys, without appropriate licensure and a unblemished record of ethical professional conduct, the engineers at OMNI would be unable to practice their profession, and the OMNI laboratory would terminate operations.

Representative OMNI Publications

OMNI-TEST Laboratories is the EPA-certified laboratory on which California Hearths & Homes has relied for much of its technical informa-tion relating to equivalence of emission values between woodstove test data and fireplace test data.

Among its recent monographs on these subjects, OMNI-TEST lists the following:

* Residential Wood Combustion Technology Review - Technical Report, 1998, report to U.S. Environmental Protection Agency, Volume 1, EPA-600/R-98-174a, James E. Houck and Paul E. Tiegs

* Residential Wood Combustion Technology Review - Residential Wood Combustion Literature,1998, report to U.S. Environmental Pro-tection Agency, volume 2, appendix A, EPA-600/R-98-174b, James E. Houck and Paul E. Tiegs

* Residential Wood Combustion Technology Review - Summary of Expert Interviews,1998, report to U.S. Environmental Protection Agency, volume 2, appendix B, EPA-600/R-98-174b, James E. Houck and Paul E. Tiegs

* Residential Wood Combustion Technology Review - Comments on Review Topics,1998, report to U.S. Environmental Protection Agency, volume 2, appendix C, EPA-600/R-98-174b, James E. Houck and Paul E. Tiegs

* Air Emissions from Residential Heating: The Wood Heating Option Put Into Environmental Perspective,1998, in proceedings of U.S. Envi-ronmental Protection Agency and Air and Waste Management Association Conference: Emission Inventory: Living in a Global Environment, volume 1, pp. 373-384, James E. Houck, Paul E. Tiegs, Robert McCrillis, Carter Keithley and John Crouch

* Residential Wood Combustion Dioxin Emissions, 1998, comments filed to U.S. Environmental Protection Agency on external review drafts of "The Inventory of Sources of Dioxin in the United States" (EPA/600/P-98/002Aa) and "Database of Sources of Environmental Releases of Dioxin-like Compounds in the Untied States" (EPA/600/P-98/002 a & b), James E. Houck

* The PM2.5 Reduction Potential of New Technology Home Heating Appliances and Fuels,1998, in proceedings of U.S. Environmental Protection Agency, Air Waste Management Association and U.S. Department of Energy Conference: PM2.5: A Fine Particle Standard, volume 2, pp. 1032-1043, James E.Houck, Paul E. Tiegs, John Crouch and Carter Keithley

* Review of Fireplace Use and Technology,1998, OMNI Environmental Services, Inc. report, James E. Houck and Paul E. Tiegs

* Review of Residential Wood Combustion Emissions, 1996, comments filed to U.S. Environmental Protection Agency draft report, "National Inventory of Sources of Emissions for Five Candidate Title III Section 112 (k) Hazardous Air Pollutants: Benzene, 1,3-Butadiene, Formaldehyde, Hexavalent Chromium, and Polycyclic Organic Matter" James E. Houck and Paul E. Tiegs

* Economic Evaluation of the Replacement of Old Technology Wood Stoves and Fireplaces and of the Use of Alternative Fuels, 1998, OMNI Environmental Services, Inc. report to Hearth Products Association, James E. Houck and Richard C. Sparwasser

* Review of the Polycyclic Organic Matter Emission Inventory for Residential Wood Combustion,1996, comments filed to U.S. Environmental Protection Agency draft report, "Emissions Inventory of Section 112(c)(6) Pollutants: Polycyclic Organic Matter (POM), 2,3,7,8-Tetrachlorodibenzo-p-dioxin (TCDD)/2,3,7,8-Tetrachlorodibenzofuran (TCDF), Polychlorinated Biphenyl Compounds (PCBs), Hexachlorobenzene, Mercury, and Alkylated Lead," James E. Houck and Paul E. Tiegs

* Urban/Rural Allocation of Residential Wood Combustion Emissions,1997, comments to Eastern Research Group (U.S. EPA contractor) for the section 112(k) Natural Emission Inventory, James E. Houck

* Residential Wood Combustion Ñ PM2.5, 1998, outline of presentation to WESTAR PM2.5 Emission Inventory Workshop, James E. Houck and Paul E. Tiegs

* Comparison of Air Emissions between Cordwood and Wax-Sawdust Firelogs Burned in Residential Fireplaces, 1999, In Proceedings of: AWMA and PNIS International Specialty Conference: Recent Advances in the Science of Management of Air Toxics, Banff, Alberta, April 2000,and Proceedings of the Ninth Biennial Bioenergy Conference, Buffalo, NY, October 15-19, 2000, James E. Houck, Andrew T. Scott, Jared T. Sorenson and Bruce S. Davis

* Clean Heat - Putting Home Heating Fuels into Environmental Perspective,1999, Hearth Products Association Journal, volume 2, number 1,pp 7-11, James E. Houck

* Pellet Stoves Revisited - New Generation of Pellet Stoves Offer Environmental Advantages, 1999, Hearth Products Association Journal, volume 2, number 4,pp. 13-17, James E. Houck

* Low Emission and High Efficiency Residential Pellet-Fired Heaters, 2000, in Proceedings of the Ninth Biennial Bioenergy Conference, Buffalo, NY, October 15-19, 2000, James E. Houck, Andrew T. Scott, Carol R. Purvis, Perter H. Kariher, John Crouch and Michael J. Van Buren.

* Air Emissions From Residential Wood Combustion, 2000, presentation materials, Hearth Product Association workshop, Charleston, SC, James E. Houck

* Greenhouse Gas Impacts from Home Space Heating, 2000, presentation materials, Hearth Product Association workshop, Charleston, SC, James E. Houck

* Compilation of Residential Wood Combustion Surveys and Related Studies, J.E. Houck, November, 2000.

* Evaluation of The Northern Sonoma County Wood-Burning Fireplace and Masonry Heater Emissions Testing Protocols Paul Tiegs, PE and James Houck, PhD, November 30, 2000

* Long-Term Performance of EPA-Certified Phase 2 Woodstoves, Klamath Falls and Portland, Oregon: 1998-1999, June 2000, report to U.S. Environmental Protection Agency, EPA-600/R-00-100, Lawrence H. Fisher, James E. Houck, Paul E. Tiegs, and James McGaughey. (Printed in PDF format without appendices)

* Review of Wood Heater and Fireplace Emission Factors, 2001, in proceedings U.S. Environmental Protection Agency Emission Inventory Converence, Denver, CO., James E. Houck, John Crouch and Roy H. Huntley

* Recommended Procedure for Compiling Emission Inventory National, Regional and County Level Activity Data for the Residential Wood Combustion Source Category, 2001, in proceedings U.S. Environmental Protection Agency Emission Inventory Converence, Denver, CO., James E. Houck, Joseph E. Mangino, Garry Brooks and Roy H. Huntley

* Recommended Procedure for Compiling Emission Inventory Data for Manufactured Wax/Sawdust Fireplace Logs, 2001, Draft to U.S. Environmental Protection Agency, James E. Houck

* Reduction in Residential Natural Gas and Electricity Consumption in California through the Use of Natural Gas Room Heaters and Wood Stoves, June 18,2001, report prepared for Northern California/Nevada Hearth Products Assocaiation, James E. Houck

We hope you find this information responsive to your needs and of assistance in reaching resolution in the matter at hand.

Sincerely,

Michael Gersick
for California Hearths & Homes

cc: Kenneth Finney, Esq.
Mr. Jim Buckley
Mr. Jim McNear
Mr. Bill Boughton