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
(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.
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| Arthur Marin, Executive Director of NESCAUM. |
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.
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| 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.
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| 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.
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.
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.
"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.
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.
