Thursday, September 4, 2014

Private talks yield consensus on key issues in EPA wood heater regulations

In July, three men met in Canada for sensitive, private meetings to see if they could reach agreement on key sections of the proposed EPA wood heater regulations.  Two represented regional air quality agencies and one represented the wood stove and boiler industry.  They were able to compromise on many issues, but were too far apart to reach any agreement on many others.  More than a month later, after consulting with their members, they flew to Washington and presented their consensus positions to EPA Acting Assistant Administrator Janet McCabe.

The three individuals were Arthur Marin of the Northeast States for Coordinated Air Use Management
Arthur Marin, Executive Director of
NESCAUM), Dan Johnson of Western States Air Resources Council (WESTAR) and Jack Goldman of the Hearth, Patio & Barbecue Association (HPBA).  The meeting arose from efforts by the air agencies and it was agreed that only the principals of each institution would take part in the face-to-face meetings as they were under a tight timeline and needed to keep the discussions high-level. 

The EPA was not part of these discussions nor present, and is under no obligation to adopt any of the consensus positions. However, it is expected that the agency is likely to adopt many of them.

Most of the areas of agreement were around sell-through, grandfathering, certification extension and cordwood testing timelines.  There was no mention of emission levels in the document.  The EPA posted the three-page consensus document in the official record.

Jack Goldman, CEO of HPBA
The positions reflect an effort by the three institutions to reach consensus but do not necessarily reflect the positions of all the groups' members.  Some manufacturers feel that the HPBA has not represented them aggressively enough, and the consensus positions deal with each technology very differently.  For example, the consensus position is toughest on outdoor boilers as it does not recommend any grandfathering or sell-through of unqualified boilers.  The position on exempt wood stoves is more lenient: a one-year sell-through.  Even more lenient is the position on unregulated indoor warm air furnaces, which would get a one-year extension for manufacturing and an additional sell-through year, for a total of two years.

Janet McCabe, EPA Acting Assistant
Administrator of the Office of
Air and Radiation
The other major area of agreement is that the switch to cordwood testing for certification should happen, but it is not feasible to implement immediately.  Both sides agree that the EPA should move in that direction but a clearly defined test procedure and a more robust database of cordwood testing is needed.  However, the consensus paper is silent on the drawn out ASTM cord wood fueling protocol process and instead proposes that a cordwood protocol be developed by a working group established by the EPA under the Federal Advisory Committee Act (FACA). This would be the protocol used to build the database of emissions from cordwood testing.  It is unclear if this protocol could capture start-up emissions, or how it would better represent real world emission profiles in consumers' homes.

The consensus positions made no mention of pellet stoves, hangtags or many other contentious issues.  Often, issues were not mentioned in the document because they were not included in the discussions.  For example, the issue of consumer hangtags, which industry opposed in their comments, was reportedly not raised by either side.

Another very significant consensus position is that all boilers that are certified by New York (and tested by EPA methods)  on the effective date of the rule should have their certifications extended for five years.  This may mean that manufacturers will not have to undergo the time and expense of retesting any of their existing units for a five year period and instead focus their efforts on redesigning cleaner stoves.  Virtually all the exempt and unregulated pellet stoves are already going through the certification process and many wood stoves are using the "K list" to get new five year certifications.  These new certifications and "freshening up" of existing ones would have given most stoves certifications up to four years into the new rule.

Possibly the biggest concession by the air agencies is the agreement to allow warm air furnaces to essentially remain unregulated for another year.  This would allow many small manufacturers of outdoor wood furnaces to continue making and selling their units even through they may have no capacity or intention of meeting EPA regulations.  However, the EPA has reportedly already told key stakeholders that they have no legal basis under the Clean Air Act Section 111 for Step 1 emission standards to be delayed beyond the effective date of the rule.

If the EPA adopts these recommendations, it would provide relief to most manufacturers and retailers.  However, the EPA could still set Phase 2 standards, which would take effect in 2020, as low as 1.3 grams per hour for wood and pellet stoves.  Many observers believe that the EPA is not likely to require such a low emission level and some in industry say they would be relieved if the EPA settled at 3 grams per hour.

The key positions of agreement are outlined below. These recommendations, if any are adopted by the EPA, would start on the effective date of the regulation, which will likely be in May of 2015:

1. Woodstoves:
a)    Unregulated and exempt stoves cannot be manufactured.
b)    Retail sales of all exempt and certified stoves (up to 7.5 g/hr for non-cat stoves) cam continue for one year.
c)    Certification of stoves that meet Sept 1 levels (proposed at 4.5 g/hr) will be extended for five years or until Step 2 emissions standards take effect.

2. Hydronic Heaters (indoor and outdoor):
a)    Only New York certified heaters may be manufactured.
b)   Retail sales of boilers that are not EPA Phase 2 qualified – and approved by New York – are not allowed. (New York requires a thorough regulatory review process for certification.)
c)    Models tested to EPA's voluntary program and certified by New York will be deemed certified for five years.

3. Warm Air Furnaces:
a)    Provide a 1-year extension to continue manufacturing unregulated furnaces.
b)   Retail sales may be allowed for one year beyond the effective date.

4. Cord wood:
a)    The transition to cord wood testing to certify new heaters should be implemented for Step 2 but will require a robust database and EPA approved method.

5. Oversight of Labs:
a)    Labs will provide 30 days notice of testing to states to allow for federal and state access to witness emission testing.
b)   All certification data related to emissions should be publicly available.
c)    Provide states with partial delegation of authority over some enforcement and compliance issues and prohibit them from action on other issues.

The above summary does not capture all the detail and nuance of these five areas of consensus.  Please refer to the original “Consensus Positions” for exact language that was agreed upon by HPBA, NESCAUM and WESTAR.

"We commend NESCAUM, WESTAR and HPBA for undertaking this important effort and for their willingness to all make substantial compromises," said John Ackerly, President of the Alliance for Green Heat.  "We urge the EPA to adopt these recommendations in the NSPS and to provide the enforcement to quickly close any loopholes that may emerge after implementation," Ackerly continued.

The consensus positions may give manufacturers and retailers more certainty about what they can build and distribute in the months leading up to the promulgation.  It is also possible that the EPA has provided some assurance to industry about the likelihood of some of these provisions.  The EPA may have already decided some of what was contained in the Consensus Position paper.  For example, it is reported that the EPA had decided not to use cordwood for certification testing in 2015 months before the meetings between industry and air agencies. 

It is likely that most major decisions on the NSPS have already been made or are close to final as the final draft of the NSPS will be submitted to the Office of Budget and Management in October.  Even the recommendations in the Consensus paper were late for consideration by the EPA.

This consensus paper may not make litigation less likely, but it may reduce the number of issues that are likely to be litigated.  Longer sell-through periods, for example, compared to the very short ones in the proposed NSPS, will decrease economic impacts on many small businesses, making the small business issue more difficult to litigate.  Further, this effort between air agencies and the industry trade group that had been key protagonists throughout much of the debate around the proposal suggest a more collaborative relationship can be forged among these parties to help implement a new NSPS.

NESCAUM is an association of the 8 northeastern states, including New Jersey, New York and the New England States.  On NSPS issues, Maine is not being represented by NESCAUM and is taking more pro-industry positions.  WESTAR now represents 15 states, from Alaska to New Mexico.  Those states represent an even wider range of the political spectrum than those in NESCAUM, but none have made the open break with their association that Maine has.  


  1. Thanks for update. Confusing to all, I see. Public wants to be assured that equipment will be safe. Safety comes from wood smoke pm2.5 doses compared to safe doses. Pm conc is not even mentioned. Tox equivalent of 180 toxic gases not even considered. BACT and CAA are illegal and violate common law rights called for by the constitution if safety not assured. Emergency issues not a concern apparently. Creosote buildup not discussed. Choking of dampers not addressed. Coziness with gov and industry was the cause of the BP disaster. I see evidence of it here in my opinion. No concern for all the old stoves, just industry profits and business. What about Salt Lake City engulfed in air pollution , with 50% probably from wood burning.

    The HVAC industry based on oil furnaces and gas furnaces is putting out products much better than this. Wood heat industry needs to adapt high tech methods such as gasification, air to fuel ratio control, and electrostatic precipitators used in Europe for outdoor wood boilers. With free cordwood available for the poor, a higher cost of equipment will still save them money. And what about climate change costs and mercury in fish destroying our fatty fish food supply ? What an abomination as seen from above compared to heat pumps powered by hydro power or wind or both being offered in some states.

  2. Once again NY has gone into the backroom to allow continued sales of known highly polluting boilers. NY certified boilers are mostly a joke except those under the new BNL test. On the NY list is the Central Boiler E Classic 2300 that the Alaska AG shut down in case involving all those very sick children and staff at Woodriver Elementary in Fairbanks. The cozy relationship evident by HPBA meeting w/NY officials back in 2007, hiring law firm of Whitman, Osterman and Hanna where wife of NY DEC Asst. Commissioner for Air worked just goes on and on. . HPBA met w/NY DEC in May to discuss NSPS. How can NY continue to allow sales not only in NY but advance this junk throughout U.S. w/test method of crib wood vs. cord wood (Method 28 OWHH used by NY uses kiln dried red oak stacked in tepee with hot start, raking, and averaging). These boilers do not meet health protective standards. We all have to ask why the cover up and shame on WESTAR and NESCAUM for advancing the criminals of NYS. Not sure how the NY AG sues EPA and the NY DEC staff continue to advance sales. Dirty politics. Time for the Governor Cuomo to stop discriminating against rural NY. No surprise though Governor does nothing since Earth Justice had to sue DEC when Commissioner Martens, Cuomo's appointee, passed emergency rule to allow sales of all boilers when DEC had already sent manufacturers letters in 2003 advising they violated existing NY Regs. . Makes you wonder what kind of environmental agencies we have running this country. Disgraceful. The cost of NY DEC trying to drag the whole country down their dirty road will be much higher rates of asthma and all those associated health care costs. Well let's see what happens because EPA is on the front end of the corruption w/them. Clean Air be damned in the U.S.

  3. I suppose that most of these regulations are good. People want to make sure that they're getting safe products, so it makes sense. Hopefully it will prevent a lot of injuries and severe medical conditions like asthma.