AGH testimony on EPA's proposed sell-through for wood boilers and furnaces

On November 21, 2018, EPA proposed amendments to the New Source Performance Standards (NSPS) for Residential Wood Heaters issued in 2015. The proposed amendments would allow retailers an additional 2 years to sell the existing inventory of hydronic heaters and forced-air furnaces. EPA is also taking comment on a similar sell-through provision for wood stoves and on whether the pellet fuel requirements should be revised.  This is the statement delivered by John Ackerly, the President of the Alliance for Green Heat at the EPA hearing held on December 17, 2018.

Via Public Hearing

U.S. Environmental Protection Agency  

EPA WJC East Building

Room 1117A&B

1201 Pennsylvania Avenue NW

Washington, DC 20460

Attn:              Docket ID No. EPA-HQ-OAR-2018-0195

Re:                  Statement of the Alliance for Green Heat in response to EPA’s Proposed Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces, 83. Fed. Reg. 61,574 (Nov. 30, 2018).

Thank you for the opportunity to testify here today.  My name is John Ackerly and I am the President of the Alliance for Green Heat. We promote modern wood and pellet heating systems as a low-carbon, renewable and affordable energy solution. We just hosted the 4^thWood Stove Design Challenge, highlighting R& D and innovation in the sector.  This industry has a lot to be proud of and some of people in the room today make some of the cleanest wood and pellet stoves in the country, enabling consumers to substantially reduce fossil fuel usage.  This is a critical juncture for the EPA with regard to residential wood heaters and there is a lot at stake with regard to air quality, energy and human health.

The Alliance for Green Heat strongly opposes the proposed amendmentsthat would allow manufacturers to sell Step 1 hydronic heaters and forced-air furnaces right up to May 2020 and retailers an additional 2 years to sell them.

I want to start by saying that this sell-through is a waste of EPA’s resources.  The agency has far more important things to consider, such as addressing how we transition to testing with cordwood.  The EPA does not have endless time and resources to regulate wood and pellet heating. Please spend EPA’s valuable resources on issues that will advance our industry and improve efficiencies, not prolong the old technology that threatens the health of rural communities.

Second, it is very surprising that the EPA would consider relief for outdoor wood boilers, hydronic heaters and furnaces.  Most of these heaters are the biggest source of the air quality problems from this industry.  Given the high levels of emissions from these units, they give a bad name to all the cleaner types of wood and pellet heating appliances currently available to consumers.  EPA should not reward a small part of the industry that has not invested in technology to improve performance and emissions of its heaters.  Tens of thousands of low-income and rural communities could be stuck with these higher polluting units for decades to come if EPA finalizes a sell-through.  

Third, EPA’s preamble says that the agency is proposing a sell-through because “it is reasonable to assume that retailers may become increasingly reluctant to purchase non-Step 2-compliant wood heating devices.”  But isn’t that the desired outcome? Improving air quality and human health by increasing the efficiency of the residential wood heater sector is a principal goal of the original regulation.  It is the intended result of the regulation to move retailers to focus inventory on Step 2-compliant devices.  There is evidence that some retailers would likely switch to manufacturers that are producing 2020 compliant models.

Lamppa Manufacturing is one such manufacturer.  Lamppa is a smaller manufacturer, and they are looking to connect with retailers.  Their unit is very affordable at a retail price of $5,295 and is compliant with the 2020 Phase 2 standard. Tarm Biomass, who makes 2020 compliant wood and pellet boilers is getting calls from dealers looking for 2020 product.  So are others who have 2020 compliant units. . Competition in the marketplace is fundamental to consumers having access to more efficient and cleaner burning appliances. This proposal works against these market forces, and in effect subsidizes the worst performing technologies.

Step 2 compliant Lamppa furnaces
being built

We all know that this isn’t just to help retailers sell stranded inventory.  After all, who are the retailers?  Some of them are Home Depot, Tractor Supply, Northern Tool and other chains that need no help. Increasingly, retailers are on E-bay and it’s hard to even tell who they are, much less monitor compliance. And a big problem is that many manufacturers want to keep selling these Step 1 units  and never intend to do the R&D to become Step 2 compliant.  Giving them 2 more years just undercuts those who have the ability to meet Step 2. 

It is important for the agency and all stakeholders to reflect on the impact of Step 1 units on air quality and energy use.  One such unit made by US Stove Company is rated as only 33% efficient, yet the EPA says that their “proposed actions are anticipated to have negligible impacts on energy costs or usage.” In fact, there is clear evidence that cleaner, more advanced units will lower energy costs by decreasing overall energy use and improve air quality.

Units made by US Stove are often improperly or illegally advertised by their dealers, like this one that says it can be used with wood or coal. (Dec. 13, 2018 screen shot)

Fourth, EPA should work to improve compliance of a sector that, at times, has been reluctant to change and at times, simply ignores regulations.  Currently, there are thousands of illegal, newly manufactured uncertified new outdoor wood boiler and furnaces being openly sold around the country.  A recent conversation with a manufacturer in the Midwest claiming it offers “the highest quality outdoor furnace available on the market” even though the manufacturer has no certified units and openly sells non-Step 1 units.  The manufacturer said that EPA’s laws and regulations may not apply in Missouri, and that the regulations may have already been overturned.  This manufacturer has 81 dealers in 21 states and no indication anywhere on their website that wood furnaces and boilers need certification. Even more concerning is that EPA’s compliance office indicated that the agency has no record of the manufacturer’s existence or continued operation.  Many smaller companies also continue to sell and advertise uncertified outdoor wood boilers. 

An uncertified Acme wood furnace currently on the market. (Dec. 13, 2018 screen shot)

The Alliance is concerned that establishing a 2-year sell-through would add another layer of work and complexity to a regulation that has already shown serious enforcement challenges.

Finally, by providing a last-minute sell through, EPA is moving the “goal posts” in the middle of the game.  Manufacturers and retailers require regulatory certainty to make business decisions that make the sector more efficient, cleaner, and safer. Putting those companies that took the EPA deadlines seriously and invested in cleaner technology at a competitive disadvantage is simply bad policy.    

Companies have shown that best available technology is available and affordable.  We need an EPA to craft a regulatory framework that supports efforts to modernize the sector and then stick to it.  Do not approve this proposal.

HPBA lawsuit extended again in hopes of renewed talks with EPA

The US Court of Appeals for the DC Circuit agreed to yet another extension to the lawsuit brought by the Hearth Patio & Barbecue Association (HPBA) and the Pellet Fuel Institute (PFI) against portions of the EPA’s 2015 residential wood heater regulations.

HPBA “hopes to be back in talks with the EPA” said Rachel Feinstein, Government Affairs Manager for HPBA. In the motion requesting the extension, HPBA explained that talks between them and HPBA had broken down under the Obama Administration, but after Trump's election, HPBA is again “attempting to discuss with DOJ and EPA whether the agencies are willing to engage in further discussions concerning the Rule.”

The Trump Administration has been re-opening rule making on many regulations, but some observers say it will likely be an uphill battle for the hearth industry because the EPA is already contending with many higher profile rules. In addition, even if the EPA were to agree to review parts of the NSPS, the rule would have to go through the notice and comment process that can take 1 to 3 years, at which point there could be a new President and a new head of the EPA.

The EPA can revise regulations at any point, with or without a pending lawsuit. It can commit to a new rule making process on selected parts of the NSPS, but it cannot necessarily guarantee any particular outcome. In cases of voluntary remand, petitioners can also lose their right to appeal.

If the case goes to court in 2018, the outcome partially depends on which panel of judges get appointed to the case and the result could be more unpredictable and potentially more favorable to the groups that intervened in the suit – the American Lung Association, the Clean Air Council and Environment and Human Health. If the case goes to court, the best outcome for HPBA would likely be a settlement agreement that puts part of the NSPS on hold until another rule making is complete.

HPBA and PFI now have until August 25 to file their brief laying out their grievances with the new regulations. HPBA is not challenging the requirement that when tested with cribwood, wood stoves must emit no more than 2 grams an hour as of 2020. This means that all stove manufacturers remain under this deadline to retest their stoves to achieve 2 grams an hour or less under the revised test method. All stoves that tested at 2 or under prior to May 15, 2015 still have to retest to be compliant with the 2020 limits. 

HPBA is challenging the requirement that if a stove is voluntarily tested with cordwood, it must achieve 2.5 grams per hour or less. HPBA asserts that since there is not yet an approved test method, it was premature for the EPA to set an emission limit. HPBA is also challenging emission limits for wood and pellet boilers and furnaces.

Related posts:

What consumers need to know about the new EPA wood stove rules. (Updated, June 2017)
HPBA gets delay in lawsuit to give Trump administration time to review.  (April 2017)
Paper undermines stove industry variability study. (August 2014)

HPBA gets delay in lawsuit to give Trump Administration time to review

President Trump shaking hands with
his EPA Administrator, Scott Pruitt, a
prominent climate change skeptic.

The Hearth Patio & Barbecue Association (HPBA) moved to delay its lawsuit to allow the Trump administration time to review the settlement proposals that HPBA submitted in 2015 and 2016 and re-evaluate whether some issues can be settled out of court, according to its court filing.  The EPA and the environmental groups who intervened did not oppose the delay. They filed their motion with the US Court of Appeals weeks before they would have had to meet the first filing deadline.

The original suit was consolidated to include challenges from HPBA, the Pellet Fuel Institute (FPI), Tulikivi and Richard Burns and Company. In November 2016, the EPA informed HPBA that it would not continue in settlement talks, but they did reach an amicable settlement with Tulikivi, a masonry heater company that wanted masonry heaters to be a regulated technology under the NSPS. The EPA is seeking additional information with regard to PFI’s lawsuit.

On March 16, 2017, the United States Court of Appeals approved the 90-day delay sought by HPBA and set a new briefing schedule for the parties that plays out through the end of 2017. HPBA must file its brief with the Court on June 26, laying out a final list of issues it intends to litigate. After that, the EPA will respond with its positions on September 26, revealing how it will defend those portions of the regulations.

Less than a month later, the interveners must file their briefs. Interveners include the American Lung Association, Clean Air Council, and the Environment and Human Health, Inc. They are represented by Timothy Ballo of Earthjustice.

HPBA is simultaneously moving a bill in Congress to delay the 2020 provisions of the NSPS by 3 years, which in turn will give the legal proceedings time to play out. Another bill would erase the wood heater NSPS altogether. HPBA does not support this, but some individual boiler and pellet producers support it.

“The Trump Administration is a wild card for all parties in the lawsuit and the Alliance for Green Heat urges all parties to support the core provisions of the NSPS,” said John Ackerly of the Alliance for Green Heat. “For the future of wood heating in the US, we need to protect the transition to cord wood testing and adopt affordable test methods that reflect how consumers use stoves,” Ackerly added.

A blog “Hearth industry lists grounds for lawsuit against EPA” by the Alliance for Green Heat in 2015 laid out more details of the substance and process of the lawsuit. One often overlooked point is that HPBA does not appear to be challenging the 2020 emission standards for wood or pellet stoves, but only for outdoor wood boilers and warm air furnaces.

Petitioners' Brief(s)                               June 26, 2017

Respondent's Brief                                September 26, 2017

Intervenor for Respondent's Brief   October 18, 2017

Petitioners' Reply Brief(s)                  November 8, 2017

Deferred Appendix                               November 15, 2017

Final Briefs                                             November 22, 2017

The Changing Face of Wood Stove Change-out Programs

Online Resource Center launched to assist program managers & consumers

States and counties are increasingly looking to wood stove change out programs to encourage people to give up old, polluting wood stoves for cleaner alternatives.  In 2016, there were 34 stove change-out programs. The average incentive was about $900 to replace and old wood stove with a new one, $1,300 for a pellet stove, $1,500 for natural gas stove and $1,900 for a heat pump.

Trends in 2016 change-outs include more programs only allowing old wood stoves to be replaced by pellet, gas or electric appliances; more bounty programs that pay for decommissioning both old and newer wood stoves; more programs requiring or considering lower particulate matter standards for eligible stoves; and increased documentation for stove retailers and program managers.

Stove change-out programs are often compared to “cash-for-clunkers,” the $3 billion program in 2009 to get older, more polluting cars off the road.  That program became more controversial as program performance data was evaluated. Stove change-outs are also often criticized for not providing enough benefit per dollar invested.  This Online Stove Change-out Resource Center strives to help maximize benefits for local air quality, participating households and the manufacturers of cleaner, more efficient heating appliances.

This Resource Center was also designed to be a resource for a national change-out fund, like the federal diesel program to replace older diesel engines. Several members of Congress had been working on federal funding for a stove change-out fund and it is now unclear if that goal may be more difficult under a Trump Administration.

“Stove change-out programs are a great tool for communities to reduce excessive wood smoke pollution but many programs underperform,” said John Ackerly, President of the Alliance for Green Heat.  “Best practices developed by innovative change-out managers need to be integrated into more programs,” he added.

Key parts of the Online Resource Center for Wood Stove Change-outs include:

•          An in-depth analysis of all 2016 change-out programs
•      A zip code search feature for consumers to find change-out and incentive programs in their area (coming soon),
•      10 Best Practices for change-out programs,
•       Tips for Homeowners, to navigate the process of buying a wood stove and keep costs down.
•          Recommended educational videos

This Online Resource Center is the most comprehensive summary of change-out programs in the US with details about their budgets, eligibility requirements and innovative features.  It is based on extensive research of each change-out program and interviews with scores of change-out managers, stove retailers and experts. The Resource Center is an ongoing project that welcomes input and corrections from all stakeholders.  Please send comments to info@forgreenheat.org.

This Online Resource Center was supported in part by the Osprey Foundation.  Content for the Resource Center was written by Melissa Bollman and John Ackerly, staff at the Alliance for Green Heat.  The Alliance for Green Heat is an independent, non-profit organization that promotes cleaner and more efficient wood and pellet heating.

Air Quality Groups Intervene in EPA Lawsuit, join a growing list of litigants

Updated: May 31, 2015

On April 15, three air quality groups filed a motion to intervene in the lawsuit that a hearth industry group is bringing against the EPA over their new wood stove and boiler regulations.  These groups said that their interest lies in “defending the Final Rule against challenges brought by industry groups seeking to further weaken or delay it.” This development is likely to make the suit more difficult for the hearth industry.

By May 15, at least 3 other parties had filed suit, including the Pellet Fuels Institute (PFI), Tulikivi and several fuel producers. PFI is challenging the EPA's authority, under the Clean Air Act, to regulate fuel.  Tulikivi, the primary factory-made masonry heater company, is suing because they are not being regulated and want to be.  Unlike these groups with relatively narrow grounds for suing, HPBA will be raising many issues pertaining the Step 2 emission standards that take effect in 2020.

Add caption

The most prominent of the air quality groups, the American Lung Association (ALA), has a long history of both cooperating with the EPA and also being part of suits against it.  Their motion suggests that the EPA’s new rule could or should be stricter, but they do not appear to be suing for stricter emissions standards.  If the air quality groups had chosen to sue for stricter standards, they would have risked having the rule sent back to EPA for revision, which could backfire as a revised rule may not be issued until 2017 or later, when a Republican nominee could potentially be running the EPA.

The industry strategy may be precisely that –to send the rule back to EPA for revision, then to try to delay the revision until a more sympathetic administration takes over.  But this strategy also poses a risk for industry, as the revised rule could emerge even stricter depending on who takes charge of the EPA.

The hearth industry group, the Hearth Patio and Barbecue Association (HPBA) – a loose amalgamation of wood, pellet, gas, grilling and outdoor furniture industries –has not yet laid out the basis of its suit and is not required to do so until the DC Circuit Court sets a briefing schedule.  The date for oral argument is usually set 6 to 8 weeks after the date final briefs are due, and the three-judge panel for oral argument typically is not be announced until shortly before the argument.

 HPBA will be focusing on challenging the stricter Step 2 emission standards, which take effect in 2020.  

The other two air quality groups who joined the suit along with ALA are the Clean Air Council (CAC) and Environmentand Human Health, Inc. (EHH).  CAC is based in Philadelphia and focuses on a wide array of energy and environmental issues.  EHH is a small group based in Connecticut and has worked on outdoor wood boiler pollution for many years.  All three groups, the ALA, CAC and EHH, were active in the comment process on the rule.  Earthjustice, a public interest law firm that does not charge its clients, is representing the groups.   The Environmental Defense Fund, which had teamed up with these three groups on earlier litigation, did not join this intervention.

In the groups’ motion to intervene, they said, the “Hearth Association will likely seek to weaken or delay the Final Rule’s requirements, as their comments during the rulemaking sought to weaken protective measures required under the Final Rule. For example, the Hearth Association objected to EPA’s use of emissions testing as a quality assurance tool to verify manufacturers’ ongoing compliance with emission standards.”

One strategic point of this lawsuit will be the selection of the 3-judge panel, which is done at random.  Generally, insiders tend to consider Republican appointees more industry-friendly and Democratic appointees more inclined to support public health groups.  History has shown that judges can be less-than-predicable in terms of how they deal with threshold legal issues such as standing, ripeness, procedural issues, or deference owed to the agency, and their decisions on these issues rarely break down along party lines.  Although everyone will be interested in knowing the three judges that will form the panel, knowing who they are is rarely enough to predict how the case will turn out.

The new EPA rules cover everything from very clean pellet stoves to extremely dirty outdoor and indoor wood boilers.  Most pellet stoves and some wood stoves, for example, already meet the 2020 standards and are very affordable. The industry lawsuit is likely to focus on 2020 standards that some indoor and outdoor wood boilers will struggle to meet, as well as 2020 wood stove standards that will raise the cost for some stoves.  In the 6 months leading up to the announcement of the rule, the industry focused mainly on delaying the rule’s implementation for indoor wood boilers.

For more information about the rule, see “What Consumers Need to Know about the NewStove Rule.”