How to listen to oral arguments in HPBA v. EPA on Jan. 28

On January 28, 2021, the DC Circuit Court will hear oral arguments for

Judge Pillard

Hearth, Patio & Barbecue Assoc. v. EPA, No. 15-1056.  The lawsuit, filed by HPBA in June 2015, was initially a broader challenge to key parts of the regulations governing new emission standards for wood and pellet heaters. HPBA has dropped almost all elements of the lawsuit except the audit provisions, which continue to be hotly contested. Those provisions will be the focus of the oral arguments on January 28.

Every case in the DC Court of Appeals is assigned to three judges who can sway the outcome of the case. More interesting and telling than the oral arguments of the litigants will likely be the questions of the judges, which may indicate which way they lean. This case was assigned to Judge Karen Henderson, appointed by George H.W. Bush in 1990, and Judges Nina Pillard and Robert Wilkins who were appointed by Barack Obama in 2013 and 2014, respectively. Judges Pillard and Wilkins may be more likely to side with EPA while Judge Henderson may lean more conservative.

Judge Wilkins

The intervenors in the case, represented by Tim Ballo of Earthjustice, as of now are requesting time for an oral argument on the 28th.

The case is listed as the first one of the day, at 9:30 AM, on the official schedule but is listed as third on the court's oral argument schedule. We will update this blog as we learn more about timing and who is arguing for each side. 

 

Judge Henderson

Members of the public can listen to the oral arguments but there is no video to watch. The amount of time per side has not yet been posted, but each side will likely have 10-15 minutes to argue. If you miss the live arguments, archived recordings can be accessed here. Recordings are uploaded regularly, perhaps as frequently as by 2:00 pm the same day as the oral argument.

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.