Hearth industry lists grounds for lawsuit against EPA

David Chung is a
lead attorney for HPBA

Updated: June 17, 2015
The US Court of Appeals has consolidated four lawsuits against the EPA’s wood heater rules together into one lawsuit.  The four parties are the Hearth, Patio & Barbecue Association (HPBA), the Pellet Fuels Institute, Tulikivi and Richard Burns & co..

Consolidation means that the four parties opposing parts of the rule will likely have to write and share one brief (while sticking to the typical 14,000 word limit), unless they can convince the court that separate briefs are appropriate or that they should be granted more space. This usually means that the four parties need to pick only their best arguments and discard some smaller or less appealing arguments.  In practice, this means that the challengers won’t be able to throw “everything but the kitchen sink” at EPA.

HPBA filed its list of issues (PDF link) as required by the court, giving the EPA and broader hearth community a detailed look into exactly what HPBA will be challenging and what they hope to change in the NSPS.  Their three main areas are:

* The 2020 particulate matter emission standards for wood heaters, residential hydronic heaters and residential forced-air furnaces are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

* The “failure to include adjustments for test method precision” is in the compliance audit testing is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

* The ability of the EPA to use test methods and other provisions that are not developed through a consensus standard-making process.

HPBA’s challenge on stricter emissions standards in 2020 has been widely anticipated, but their challenge on EPA recognition of non-consensus test methods indicates that industry may be seeking more control over how indoor and outdoor boilers are accredited by the EPA.  At issue is the long simmering division between domestic outdoor wood boiler manufacturers and those companies importing and manufacturing European style boilers. 

The development of test methods for stoves and boilers have traditionally been dominated by the domestic stove and boiler industry through the EPA and/or ASTM.  The consensus driven ASTM process is open to anyone who wants to participate, but is dominated by HPBA insiders, experts and manufacturers. In recent years, New York State bucked that system by funding the development of an alternative test method outside the ASTM process that “is a major modification of EPA Method 28 WHH, intended to provide a method to evaluate a specific type of advanced wood heating boilers.” 

The NSPS says that boilers certified by New York State or qualified under the New York’s Renewable Heat New York (RHNY) program are to be automatically deemed EPA certified to meet the Step 1 emission limits.  If HPBA is successful in its challenge, it is unclear if all of those units could lose their certification, giving HPBA member companies a big edge over companies who participated in the New York program, which are mainly non-HPBA members.

Despite the lawsuit by HPBA, a number of their member stove manufacturers are already reassuring their distributors and retailers that they will be able to meet the 2020 emission standards.  And, many, if not most companies are starting R&D efforts to meet the stricter standards because there is no guarantee that the suit will be successful and they cannot afford to do nothing for several years.  Even those HPBA member companies who do not agree with the lawsuit have to help pay for it.  The suit is funded by assessments on all member manufacturers.

Rick Curkeet

HPBA is also challenging the EPA’s “failure” to take test method imprecision into account.   Rick Curkeet, one of the key figures involved in the study that shows wide testing imprecision, recently explained the issue in a public paper. 

“Unfortunately the EPA has chosen to ignore the reality that the test process does not appear to be able to reliably distinguish emissions performance differences of several grams per hour. Indeed, it will take some very good luck in addition to high quality testing to obtain acceptable results. A possible means of reducing this risk is for designers to focus R&D efforts on getting repeatable results and not simply a low number.”

Tom Morrissey

Tom Morrissey, the owner of Woodstock Soapstone Stoves, a non-HPBA member, says Curkeet’s study is riddled with flaws and should not be relied upon by policymakers or regulators.

The Pellet Fuel Institute (PFI), headed by Jennifer Hedrick is challenging the authority of the EPA to regulate pellet fuel and to include ENplus and CANplus, since the EPA did not offer an opportunity to comment on their inclusion in the rule.  (PFI court filing, PDF)  It is unlikely that PFI would want the EPA to remove references to certified pellet fuel, as PFI has worked diligently for many years to establish the certification standard, with EPA involvement.  PFI may just want the EPA to recognize their third party standard, but not get involved in what ingredients and characteristics should be allowed.  Most PFI members who manufacturer pellets have not agreed to become part of the PFI pellet certification program and some of them use ingredients in their pellets which are not allowed by the NSPS.

Jennifer Hedrick

For example, one of the other litigants, Richard Burns & Co, is a PFI member, a pellet producer and also a recycler of construction and demolition debris, and retailer of #2 wood chips.  The NSPS does not allow plywood, construction and demolition debris, paper and cardboard and many other items to be used to make pellets. The court filings from PFI and Richard Burns & Co should be available soon.

Tulikivi, the dominant leader of factory built masonry heaters, is suing the EPA because the NSPS did not include them as a regulated technology.  Since nearly all categories of wood heaters are now required to be certified by the EPA, lack of certification for masonry heaters will become a market barrier.  (Tulikivi court filing, PDF.)

The U.S. Court of Appeals will likely to soon be studying both sides of this argument.  Several air quality non-profit groups have also intervened to help the EPA defend the rule and will likely be arguing that that Step 2 emission standards are realistic and achievable, and if anything, are too lax.