Nine states urge the EPA to revoke the ASTM cordwood test method

A certification test using ASTM E3053
where logs are loaded north-south on
the bottom and east-west on top.  

The Attorney Generals of nine states sent a letter to Chet Wayland, the EPA’s Director of Air Quality Planning and Standards, urging him to reevaluate the ASTM E3053, and revoke it if the EPA reevaluation confirms the findings in a recent report from the Northeast States for Coordinated Air Use Management (NESCAUM).

The Attorney Generals said “certifications relying on [ASTM 3053] Alternative test methods 125 and 127 suffer from deficiencies that artificially lower emissions during the certification tests and allow too much variability and manufacturer or laboratory manipulation to provide a result sufficient to determine compliance with the Standard.” The letter is reproduced below and can be downloaded here.

 

The NESCAUM report that identified deficiencies in test reports that used ASTM E3053 also found significant deficiencies in test reports of stoves that used Method 5G, the official federal reference method for wood stove emission testing.  That report led to an announcement by the EPA in early April that they were overhauling their process of reviewing certification paperwork, but it did not address NESCAUM’s recommendation that the ASTM method be revoked.

Both the ASTM and IDC cord wood
test methods have been accepted as
"broadly applicable" which means any
manufacturer can use them for 
certification testing.  No stove has yet 
been certified with the IDC method.

At issue is what has become the favored test method by manufacturers and labs.  Eighty-five out of 148 cordwood stoves, nearly 60%, of all wood stoves on the market today used the ASTM test, one indication that the test may be easier than Method 28, the traditional test.  Among the close-knit community of stove manufacturers and test labs, there are few explanations of why labs shifted so quickly to use the ASTM test method.

This controversy, like virtually all others around wood stoves in recent years, have to do with heaters that burn wood, not pellets.  Unfortunately, reports, rejoinders and media coverage rarely make that distinction,  resulting in a loss of confidence in all types of heaters.  Pellet stoves remain fundamentally far cleaner than wood stoves in the hands of consumers and their test methods are far less susceptible to interpretation and manipulation.

 

On June 6, the EPA posted the NYSERDA IDC testing protocol. They say: "We have now docketed the TEOM SOP, and IDC Stove Operating and Fueling protocols, along with their associated spreadsheets (fueling calculator for IDC, data processing for TEOM). These files are static for the duration of our sample collection efforts that have now begun in Portland, OR."  This process too has been exclusionary.  The Alliance for Green Heat requested on multiple occasions to join the Roundtable group made up of scores of industry members, state regulators and EPA personnel, but the EPA declined to allow non-industry stakeholders to be part of this process. 

Industry experts affiliated with the main industry association, the Hearth, Patio and Barbecue Association (HPBA), take pride in what they call an open, transparent and consensus-driven process of developing and approving the ASTM E3053 cordwood test method. Its detractors, led by NESCAUM and the New York State Energy and Development Authority (NYSERDA), say ASTM is a private non-profit that copyrights and sells its standards.  They also contend that even though anyone can join the committee developing an ASTM standard, the process can be dominated by industry, and comments and recommendations can be discarded if the core committee members do not agree with them.  

 

Lisa Rector explains the IDC test when
it was first publicly showcased at a
Wood Stove Design Challenge in 2018.

The Technical Contact for the ASTM E3053 development process and a subsequent revision which is still being worked on, is Robert Ferguson, a long-time industry insider who often is a consultant for HPBA.  Approximately 90% of the experts included in the ASTM 3053 development process consisted of representatives of wood stove manufacturers, HPBA staff and test lab staff.  In addition there were about 10 staff from EPA, NESCAUM, WESTAR and non-profits, including AGH.  HPBA paid for some of the testing during the development process and Mark Champion, who has done most of the Integrated Duty Cycle (IDC) testing also did testing of the ASTM method.  AGH offered comments during the ASTM process and was told that test data to back up suggestions was needed.  Comments from NESCAUM were reportedly disapproved.

NYSERDA has been funding NESCAUM to develop their own cordwood test method, which was recently approved by the EPA as a broadly applicable method, at the request of the State of Alaska.  Industry members say NESCAUM and NYSERDA have a clear conflict of interest and are trying to get rid of the competition so that their cordwood test method can be the only one used by test labs.  Industry is also frustrated with the lack of transparency surrounding the development of the IDC test method and the errors in it that would have been found if other experts could have reviewed it and tested it.  Tom Morrissey, owner of  Woodstock Soapstone found scores of errors in the NESCAUM report and identified many problematic issues with the IDC test method.  Ben Myren, a veteran test lab owner, also found many problems with the process run by NESCAUM and the state of Alaska.

An EPA reevaluation of finding
in the NESCAUM report
should include rejoinders
from manufacturers, such as
whether this fuel was correctly
flagged for debarking

It is not yet known whether the demands of the nine states could lead to the revocation of the certification of 85 stoves that were certified with the ASTM method, or whether the EPA would just not allow it to be used to certify additional stoves.  Most of those 85 stoves will be requesting to have their 5 year certification approval extended for another 5 years.  The EPA may require that those stoves go through emissions testing again after 5 years, an option that they appear to have been considering even before the letter from the Attorney Generals based on deficiencies flagged by the Alaska review process.

The nine Attorney Generals represent the states of New York, Alaska, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont and Washington  along with the Puget Sound Clean Air Agency.  Absent from this list are Maine, New Hampshire and Connecticut who are members of NESCAUM and prominently listed at the beginning of the NESCAUM report.

Copy of letter:

Attorneys General of New York, Alaska, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington and the Puget Sound Clean Air Agency

May 21, 2021

Chet Wayland
Director, Air Quality Assessment Division
US EPA Office of Air Quality Planning and Standards, 109 T.W. Alexander Drive, Mail Drop E-143-02 Research Triangle Park, NC 22710

Re: Request that EPA Revoke Use of Alternative Test Methods 125 and 127 for New Source Performance Standard Wood Heaters Certification

Dear Chet Wayland,

On behalf of the Attorneys General of New York, Alaska, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington and the Puget Sound Clean Air Agency, we write to request that EPA revoke alternative test methods 125 and 127, both based on ASTM 3053, to certify compliance with the New Source Performance Standard (the Standard) for wood heaters. These alternative test methods threaten to undermine the air quality benefits of the Standard.

As outlined in an April 28, 2021 letter from multiple state regulators to EPA, the Alaska Department of Environmental Conservation, New York State Energy Research and Development Authority, and Northeast States for Coordinated Air Use Management have together undertaken a comprehensive review and audit of wood heaters certified under test methods relying on ASTM 3053. These entities found that certifications relying on those alternative test methods suffer from deficiencies that artificially lower emissions during the certification tests. Alternative test methods 125 and 127 allow too much variability and manufacturer or laboratory manipulation to provide a result sufficient to determine compliance with the Standard. In light of these findings, we request that EPA reevaluate the authorizations for alternative test methods 125 and 127, and if EPA corroborates the reports’ findings, revoke these alternative test methods. See 40 CFR §§ 60.8(b), 60.534(a)(1)(ii) (specifying authority to authorize alternative test methods); see also 40 CFR § 60.533(l)(1) (allowing revocation of certifications for wood heater models where test results cannot be replicated).

States continue to invest considerable resources to facilitate the exchange of older, more- polluting wood heaters for newer less-polluting units. Wood heater certifications based on deficient test methods, which produce artificially lower emissions than what can be achieved by homeowners, undermines these efforts. Furthermore, wood heaters with high particulate matter emissions pose dangers to the health of our residents, including vulnerable populations, such as children, the elderly, and environmental justice communities. EPA can mitigate these problems by requiring the use of either EPA’s method 28R or alternative test method 140 (the Integrated Duty Cycle Test Method that EPA has indicated represents the future of certification test methods for wood heaters).

Last year, numerous States submitted an amicus brief supporting EPA’s authority to conduct auditing of wood heater certifications. See States’ Amicus Brief, Hearth Patio & Barbecue Ass’n v. U.S. Envtl. Prot. Agency, No. 15-1056 (D.C. Cir. Sept. 21, 2020), ECF No. 1862523. In that amicus brief, we argued that manufacturers could effectively evade the Standard, and thus contribute to harmful air pollution, by using alternative test methods based on ASTM 3053 for test certifications and running tests more loosely than permitted by method 28R. For example, these methods do not require the use of fuel logs that are 5/6 the length of the firebox, and using shorter logs allows for cleaner burns. What is more, gaming the tests leads to results that cannot be replicated.

We now ask that EPA take the additional step of reviewing the reports and information brought forward by air regulators and other parties and to reassess using alternative test methods 125 and 127. If EPA findings corroborate the state air regulator’s reports—including that stoves certified under alternative test methods 125 and 127 do not reliably produce emissions below the Standard—then EPA should disallow the use of these methods. Moreover, when the certifications for wood heater models that used alternative test method 125 or 127 are up for renewal, EPA should require recertification testing using method 28R or alternative test method 140. See 40 CFR § 60.533(h)(2) (indicating certifications expire every five years).

Thank you for your attention to addressing this troubling threat to the air quality protections afforded by the Standard.

Sincerely,

FOR THE STATE OF NEW YORK

LETITIA JAMES
Attorney General of the State of New York

By: /s/ Nicholas C. Buttino NICHOLAS C. BUTTINO MICHAEL J. MYERS
Assistant Attorneys General Environmental Protection Bureau The Capitol

Albany, NY 12224
Tel: (518) 776-2406 nicholas.buttino@ag.ny.gov

FOR THE STATE OF ALASKA

TREG R. TAYLOR Attorney General

By: /s/ Steve E. Mulder
STEVE E. MULDER
Chief Assistant Attorney General 1031 West Fourth Avenue, Suite 200 Anchorage, AK 99501
Tel: (907) 269-5100
Fax: (907) 276-3697 steve.mulder@alaska.gov

FOR THE STATE OF MARYLAND

BRIAN E. FROSH
Attorney General of Maryland

By: /s/ Michael Strande MICHAEL STRANDE Assistant Attorney General Department of the Environment 200 Saint Paul Place

Baltimore, MD 21202
Tel: (410) 576-6300 michael.strande@maryland.gov

FOR THE COMMONWEALTH OF MASSACHUSETTS

MAURA HEALEY
Attorney General of Massachusetts

By: /s/ Carol Iancu
CAROL IANCU
TURNER SMITH, Deputy Chief Assistant Attorneys General Office of the Attorney General Environmental Protection Division One Ashburton Place, 18th Floor Boston, MA 02108
Tel: (617) 963-2428 carol.iancu@state.ma.us

FOR THE STATE OF NEW JERSEY

GURBIR S. GREWAL Attorney General

By: /s/ Lisa J. Morelli LISA J. MORELLI
Deputy Attorney General New Jersey Division of Law 25 Market Street

Trenton, NJ 08625
Tel: (609) 376-2745 Lisa.Morelli@law.njoag.gov

FOR THE STATE OF OREGON

ELLEN F. ROSENBLUM Attorney General

By: /s/ Paul Garrahan
PAUL GARRAHAN Attorney-in-Charge
STEVE NOVICK
Special Assistant Attorney General Natural Resources Section

Oregon Department of Justice 1162 Court Street NE
Salem, OR 97301-4096
Tel: (503) 947-4593 Paul.Garrahan@doj.state.or.us Steve.Novick@doj.state.or.us

FOR THE STATE OF RHODE ISLAND

PETER F. NERONHA
Attorney General of Rhode Island

By: /s/ Alison B. Hoffman
ALISON B. HOFFMAN
Special Assistant Attorney General
Rhode Island Office of the Attorney General 150 South Main Street
Providence, RI 02903
Tel: (401) 274-4400 ext. 2116 ahoffman@riag.ri.gov

FOR THE STATE OF VERMONT

THOMAS J. DONOVAN, JR. Attorney General

By: /s/ Nicholas F. Persampieri NICHOLAS F. PERSAMPIERI Assistant Attorney General Office of the Attorney General 109 State Street

Montpelier, VT 05609
Tel: (802) 828-6902 nick.persampieri@vermont.gov

FOR THE STATE OF WASHINGTON

ROBERT W. FERGUSON Attorney General

By: /s/ Caroline E. Cress CAROLINE E. CRESS Assistant Attorney General Office of the Attorney General P.O. Box 40117

Olympia, WA 98504-0117 Tel: (360) 586-4613 caroline.cress@atg.wa.gov

FOR THE PUGET SOUND CLEAN AIR AGENCY

By: /s/ Jennifer A. Dold JENNIFER A. DOLD
General Counsel
Puget Sound Clean Air Agency 1904 Third Avenue, Suite 105 Seattle, WA 98101

Tel: (206) 689-4015

jenniferd@pscleanair.gov

      

 

Stove manufacturer documents scores of errors in NESCAUM report

NESCAUM responds to Morrissey as he issues Part 2 of his review

Tom Morrissey, owner of Woodstock Soapstone, a wood stove manufacturer, has written a blistering critique of a report that claimed the EPA wood stove certification process is “dysfunctional.”  

Tom Morrissey at his factory 
in West Lebanon, NH

The review by this independent manufacturer further ratchets up a conflict that has engulfed a section of EPA’s Office of Air and Radiation.  The original report, “Assessment of EPA’s Residential Wood Heater Certification Program" by the Northeast States for Coordinated Air Use Management (NESCAUM), issued in March 2021, was based on a review of all test lab certification documents that had been sent to EPA to certify stoves to EPA’s regulatory standards.  The review was conducted jointly by the Alaska Department of Conservation (ADEC) and NESCAUM, with funding from the New York State Energy Research and Development Authority (NYSERDA). 

(June update: Tom Morrissey released part 2 of his review on June 15 and three days later, NESCAUM released their rebuttal to Morrissey's initial review.  NESCAUM appears to be standing behind its entire report and did not find any merit in Morrissey's critique.  On page 21, NESCAUM also addressed editorial comments in AGH's blog. Part 2 of Morrissey's critique mainly focuses on burn rate requirements adopted by ADEC as a deficiency, but not used by NYSERDA's IDC test method.  Morrissey also describes why the IDC will likely result in lower efficiencies because BTUs in the tail of the burn are not included and questions if the EPA should ever approve a test method where underlying calculations are not public.  AGH agrees with a substantial amount of the content in both the NESCAUM report and Morrissey's rejoinders and believe it's important for EPA officials, states and experts to consider both.)

NESCAUM and ADEC accused the EPA of running a dysfunctional certification program that “is easily manipulated by manufacturers and testing laboratories” and “EPA has done little to no oversight and enforcement.” Morrissey counters that NESCAUM and ADEC also have produced a dysfunctional assessment of the EPA program that is full of “error, bias and conflict of interest.”

We have excerpted key parts of Morrissey’s review below.  The full review, with scores of photos, can be downloaded here.  The Alliance for Green Heat believes it is important to consider both the NESCAUM report and rejoinders from Morrissey and another one from veteran lab technician Ben Myren together.  We believe there is substantial truth in all three of these documents.  Our initial response to the NESCAUM report was that it “overstated” its case, and AGH welcomes expert rejoinders that bring some balance to the conversation.  However, AGH still believes that EPA should take the NESCAUM report seriously because it is clear that the EPA certification and enforcement programs need significant improvement, and that these have been underfunded, understaffed and overlooked within the EPA.  

AGH also agrees that much of ADEC’s and NESCAUM’s review was hastily done without sufficient fact-checking.  The report carries an unfounded degree of authority that is now reverberating throughout the wood stove industry and its state and federal regulators, and the wider public is less likely to see these rejoinders.  NESCAUM and ADEC now have the opportunity to respond and explain some of the allegations in Morrissey's review or continue to stand behind that data that led to their conclusions. Numerous individuals have approached northeastern state government agencies who are members of NESCAUM, urging them to distance themselves from the report and not let their agency names be used on such reports in the future without more due diligence.

In early April, in response to the NESCAUM report, the EPA announced they were conducting an in-depth review of the certification process.  They placed most of the blame on the test labs and third party certifiers.  Morrissey’s review may cause the EPA to rethink its strategy and not put undue trust in the finding of the NESCAUM report.  Morrissey’s review is significant because he is not a member of the wood stove industry association and has often taken sides for and against industry interests – and the EPA’s. This is part 1 of his review and he expects to complete the second part in June.

AGH is concerned that the NESCAUM report, media coverage of it, and Morrissey and Myren’s rejoinder put so much focus on the inherent problems with wood stoves and the pollution they can cause, that the benefits of pellet stoves get overlooked.  Virtually nowhere is there recognition of the technology and reliability of pellet stoves and boilers as a far cleaner, renewable energy technology that can help households and businesses get off fossil heating fuel.  

Excerpts:

REVIEW (PART 1)

of

“ASSESSMENT OF EPA’s RESIDENTIAL WOOD HEATER CERTIFICATION PROGRAM” Written by NESCAUM, March 2021 

Page 1: In March 2021, the Northeast States for Coordinated Air Use Management (NESCAUM) published a document entitled “Assessment of EPA’s Residential Wood Heater Program (“Assessment”). The “Assessment” is the result of a review conducted by NESCAUM “in collaboration with the Alaska Department of Environmental Conservation” (ADEC). 

The “Assessment” is intended to influence “policymakers” by claiming 1) that the EPA Certification Program is dysfunctional and a systemic failure, 2) that there are a significant number of discrepancies and omissions in test reports submitted to EPA for approval, 3) that EPA has failed to conduct compliance audits, and 4) that the NESCAUM and ADEC could do a better job than EPA in, a) deter- mining which stoves are in fact the cleanest burning and, b) developing a test method for certifying wood burning appliances. NESCAUM has provided scant data to back up these major claims, and some of the data that it does present is riddled with discrepancies, omissions, bias errors, and conflict of interest, as detailed below. Bias is evident everywhere; in tone and use of language, in lack of transparency, in the selection of subjective criteria to attempt to discredit test methods and results, and in its attempt to advance NESCAUM’s own agenda4 with its “policy recommendations.” The bias is so pervasive that it undermines much of the “Assessment.” 

Page 3: In order to assess NESCAUM/ADEC’s data analysis and conclusions, we need to first look care- fully at its data collection methods and ask whether the underlying data is complete, credible, and unbiased. The main focus of this Part One of A Review of the “Assessment” is on how data was collected and tallied on “Summary Review Sheets” by ADEC. 

On the following pages I raise concerns about quality control, bias, and conflict of interest in NESCAUM/ADEC’s acquisition of data. It is clear that NESCAUM/ADEC reviewers lacked objectivity in assessing information, particularly with regards to the ASTM E-3053 method, and they reviewed individual test reports (knowingly or not) with the intent to discredit the ASTM E-3053 and advance their own interest in promoting the IDCTM method. 

Page 4: All ADEC data sheets that I have reviewed are undated and unsigned. Most have few, if any comments.  Many have unfilled spreadsheet boxes (data not collected). All of the ADEC reports of stoves made by Woodstock Soapstone Company have serious omissions, errors of fact, misreporting, and untrue statements. Of six Woodstock Soapstone Company models approved to the EPA 2020 Standards, two models were missing entirely, and one model was reviewed twice, on separate data sheets that were inconsistent and did not match (i.e., different reviewers looking at the same data, or the same reviewer on different dates looking at the same data). The fact that ADEC reviewed the same data twice, and the two completed spreadsheets are markedly different, speaks to the concern (also noted in footnote #2) about quality control. 

Page 5: On the pair of summary sheets where NESCAUM/ADEC inadvertently reviewed the same test report twice, there were 25 discrepancies between the two reports, including errors of transcription, op- posing claims that data was or was not reported, rounding errors, conflicting or inconsistent “flags” and numeric/arithmetic errors. This is not reassuring in terms of NESCAUM’s claimed consistency in generating the summary results, and raises the issue of whether NESCAUM’s own consistency and repeatability should be the subject of an audit. 

These two ADEC Summary Reports are reproduced on page 6, and an explanation of most of the errors on page 7. For simplicity sake, I refer to the report that is captioned Model 210a (but really Model 210) as Report A, and the Report that was (correctly) reviewing Model 210 as Report B. Both reports were posted and properly labeled on the Woodstock Soapstone website. But that’s not the point; these two reviews of the same report should produce similar, if not identical results, but they did not. 

These two Summary Sheets, which review the same test report,8 disclose obvious problems in the research and reporting methods employed by NESCAUM/ADEC, and the ability/willingness of NESCAUM/ADEC to impose meaningful quality controls on their inquiry. As noted early in this review (see footnote 2), there is little, if any, evidence of NESCAUM/ADEC cross-checking or vetting of the reviews or data in the “Assessment”. The task of auditing the “Assessment” and validating its so-called “data” and its various claims will now, probably, fall squarely on EPA. 

This is the central irony of this situation; NESCAUM’s own data and reporting is guilty of the same failures it attributes to EPA, namely failures in transparency, documentation, and auditing its own work product for consistency, impartiality, and accurateness. The EPA will now become responsible for cleaning up the NESCAUM mess. 

Page 8:  For the purpose of this initial review, I will focus mainly on stoves made by Woodstock Soap- stone Company. Next, I will examine the ADEC Summary Sheet for our Model 202/204. This is a “plain vanilla” Summary Sheet, compared to Model 210, on pages 6 and 7, above. 

ADEC encourages manufacturers to “review their certification test report summaries and submit corrections, and that any substantiated errors or corrections will be applied to the summary sheet.” So, I’ll just make the corrections here. On our Model 202/204, the initial ADEC summary sheet (see next page, LEFT COLUMN) makes the following errors (WHICH CUMULATIVELY TOTAL 13 FLAGS). I intend to address THREE ADDITIONAL RED FLAGS (related to Documentation of 1) run appropriateness, 2) run Validity, and 3) run anomalies on Part 2 of this Review. 

What is fascinating is that between early April 2021, when I downloaded the original Summary Review Sheet, and today (mid-May, 2021), ADEC performed an additional review and corrected some of its original errors, and made some new errors. Here are comments on the initial ADEC Summary Sheet. Comments on the revised Summary Sheet are on the next page. 

Page 10: According to the ADEC “PROCESS”, I am supposed to address all of these “issues” by

One of the many photos that
appear to provide evidence
contradicting ADEC "flags"

discussing them with ADEC, and maybe submitting modified or reformed test reports. Then ADEC will makes changes as it deems appropriate. Or not. 

Page 14: The “Assessment” claims that “90% of the stoves tested using ASTM E-3053 used debarked wood or failed to provide information about whether there was bark on the fuel.” (Assessment page 38) The “Assessment further claims that “61% of the stoves tested with ASTM E-3053 used squared wood for more than 50% of the pieces” (Assessment page 33), including the stove immediately above (Model 205) and the fuel for Model 202/204, pictured on pp 10-11. 

Based on my review, I cannot believe either of these claims. If the basic data underlying the “Assessment” is defective, then its claims of numerous deficiencies in testing and reporting, and its criticisms of ASTM E-3053 are suspect, because they are based on bad data. 

Page 19: I hope to have Part 2 in mid-June. There is a lot more to unpack in the “Assessment,” including: 

* The overall “Assessment” review strategy, and whether it is a credible basis for proceeding to the conclusions that the “Assessment” tries to come to. This strategy is basically to make a list of each and every requirement imposed by the NSPS, and then see if each and every item on the list can be identified in test reports, no matter how obscure or irrelevant the requirement might be. Otherwise, deficiencies are claimed by NESCAUM/ADEC without any apparent oversight or review, or any basis in fact. 

* The nexus of firebox size and calculation, loading direction, fuel length, and loading density. These are the second set of elements that the “Assessment” uses to criticize ASTM E-3053. 

* I’ll review this sentence, and how it has spawned innumerable “flags” (i.e., claims of violations of the NSPS) in the “Assessment’s flag-collection effort."

Initial response from AGH on the NESCAUM report

 A scathing report, "Assessment of EPA’s Residential Wood Heater Certification Program," raises many important points but overstates its case and fails to acknowledge the advances in stove technology in recent decades. The report never acknowledges that pellet stoves operate more consistently in homes as they did in the lab, compared to wood stoves, for example. Moreover, the policies and interests of the northeast states represented by the report's author, NESCAUM, are undermined by a report that never acknowledges the important role that modern, automated wood and pellet heating have to reduce fossil fuel use and help combat climate change. The Alliance for Green Heat (AGH) is preparing a response to the NESCAUM report.

The report alleges that the EPA certification process is "dysfunctional," and its tone and content easily digestible by the media.  The process needs significant improvements but we need to also recognize what works and what has been achieved. It rightly points out the deficiencies of the so called "independent" third-party reviewers, lack of sufficient enforcement by the EPA, and certification paperwork that often lacks required detail. AGH urges the EPA to take the report seriously, and calls on the Biden Administration to provide more resources to enforcement, the Burn Wise program, and the development of a federal cordwood test method that integrates IDC concepts.  Many of the problems cited by the report are the result of budget cuts in an agency tasked with scores of vital air quality programs.

AGH urges states and the media to take this report with a grain of salt.  This report provides an opportunity to further educate state and local experts but the report should not undermine the important steps states have taken to incentivize modern, automated wood and pellet heating.  The process to certify pellet stoves and boilers in particular is a functional one and can be even more so with improvements.  

The complexity of writing test methods that hold up over time is also evident in some of the missteps by the very authors of the report.  Test labs that used a flawed IDC test method developed by NESCAUM resulted in mysteriously low efficiency numbers.  The lab now has to explain to EPA why they should be allowed to adjust their efficiency numbers.  Our point is that regulators and experts all over the country - including the authors of this report - are going through an important learning curve to better understand how to improve test methods and the certification process.  We urge all stakeholders in this community to approach this highly complex process with humility - and urgency - so that lasting improvements can be made.

Related stories

Veteran lab technician challenges Alaska's wood stove criteria (March 2021)

Alaska releases deficiency details on wood and pellet stove test reports (Nov. 2020)

Alaska building list of cleaner, properly certified wood and pellet stoves (Oct. 2020)

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.

Wood stove industry faces unified opposition to deregulation

A 2018 portrait of the Western
Governors Association who
oppose delays in the NSPS timeline.

Amid the scores of comments filed in response to the EPA’s proposal to weaken Obama-era wood stove and boiler regulations, not a single state came out in support of the Trump Administration’s proposals.  

Attorney Generals from eleven states (CT, IL, MA, MD, MN, NJ, OR, NY, RI, VT & WA) filed detailed comments and are likely prepared to sue if the EPA tries to weaken the existing regulations.  Even Alaska and the Western Governors Association is backing the Obama-era timeline. A more troubling sign for the wood stove and boiler industry is an energized, engaged and knowledgeable array of states, air agencies and non-profit organizations that have lined up to oppose virtually all the changes that the stove and boiler industry is seeking from the Administration.

“We are seeing a polarization of stakeholders who once used to make alliances and find common ground,” said John Ackerly, President of the Alliance for Green Heat, an independent non-profit that promotes cleaner and more efficient wood and pellet heating. “The Trump Administration efforts has energized states and unified them across a range of issues, from compliance deadlines, to test methods, to regulation of wood pellet composition, to warranties and audits for stoves,” Ackerly said.

Key excerpts of stakeholder comments which this analysis is based on can be found here for those who don't want to download and read through hundreds of pages of comments.

John Ackerly, head of the Alliance
for Green Heat.  Photo courtesy of
Popular Mechanics magazine.

Trump Administration proposes a delay

The biggest issue on the table is whether the EPA will extend a deadline and allow retailers to sell dirtier wood boilers and furnaces – and possibly wood stoves – until 2022 instead of 2020. The EPA has indicated an interest to provide this relief to wood boiler and furnace manufacturers and retailers, but time is running is out and the agency has been moving slowly on this issue.  It’s also unclear if states would be able to get an injunction to prevent such a move while it was being litigated.  

Scores of comments submitted to the EPA depict an industry that has few friends standing up for it outside its own network of manufacturers and retailers.  Attorney generals from three states with Republican governors – Maryland, Massachusetts and Vermont – sided with democratic-led states in opposing any delay in stricter emission standards taking effect.  

Among industry, there is widespread unity to allow retailers two more years to sell Step 1 boilers, furnaces - and stoves - that are set to go off the market in May 2020, although a handful of small manufacturers and importers support the existing timeline.  

While manufacturers argue forcefully that they need a two-year sell-through, they are also having to assure their retailers that they will have 2020 compliant products.  For example, in comments submitted to the EPA, Jotul says it faces dire economic consequences with $2.5 million in raw cast iron at stake if a 2-year sell-through is not granted.  But in an industry magazine read by retailers, Jotul says they are doing “very well” certifying their 2020 models and expect to release their new 2020 models later this year.  Based on the EPA’s list of certified wood stoves, it appears that Jotul is one of the manufacturers who is far behind schedule, as they do not yet have a single 2020 compliant stove on the list.  Industry sources have said that the list of EPA certified stoves far underestimates the preparedness of many manufacturers who may be waiting to submit test data for 2020 compliant stoves until they are closer to the required date.

Richard Corey, CEO of
California's Air Resources
Board

While northeast and northwest states have been the principal state actors, California is making a big investment in challenging the EPA's deregulatory proposals.  They filed extensive comments to both the Proposed Rule Making (PRM) and the Advance Notice of Proposed Rule Making (ANPRM).  They and many of other states challenge the legality of the EPA's approach, setting the scene for what is likely to be a legal battle.  They argue:

"The [EPA's] requests for information with respect to the emission limit for wood heaters do not request the right information, are biased and outcome seeking towards collecting evidence for weakened standards and miss the opportunity to collect the data necessary to perform an accurate and complete economic and regulatory impact analysis.  Asking “whether Step 2 is achievable at a reasonable cost” is not the correct framing of the question. The answer to this question seems predetermined, particularly for those who ostensibly have “been unable to design a wood heater to meet the Step 2 standard.”

Letita James, the Attorney
General of New York, is the
lead among eleven attorney
generals opposing a sell-
through and other changes.

Perhaps the most detailed argument for a two-year sell-through came from North East Distributors, one of the largest distributors of stoves made by many manufacturers.  They say that they “are in favor of manufacturers having to meet the May 15, 2020 deadline for stopping production of non-2020 compliant models" but against "holding distributors and retailers to the same May 15, 2020 deadline for sales of already manufactured products. Having the one date for all entities (manufacturers, distributors, and retailers) inhibits the results you are trying to accomplish.” 

A push to deregulate outdoor wood boilers

The main regulatory focus has been on a sell-through for outdoor wood boilers, also known as hydronic heaters, and inexpensive indoor wood furnaces.  Leaders of those companies have been testifying to Congress and lobbying the administration. 

For central heaters like boilers and furnaces, the main industry association, the Hearth, Patio and Barbecue Association (HPBA) is calling on the EPA to “repeal those standards altogether.”  Strengthening emission standards for wood boilers and furnaces was one of the largest goals of the 2015 New Source Performance Standards (NSPS), and this call to deregulate that industry altogether represents a new front in the widening gulf between industry, states and air quality agencies.  

HPBA's John Crouch, an
architect and mediator of
HPBA policies.

US Stove, the dominant manufacturer of indoor wood furnaces is also calling on the EPA to repeal emission standards for furnaces because the “economic feasibility of meeting the standards is impractical” and the emission levels are “preposterous and unrealistic.”  However, a far smaller competitor, Lamppa Manufacturing already has a furnace that meets the 2020 standards.

When it comes to outdoor wood boilers, fringe voices are not uncommon. There is a group of retailers and consumers supporting the “Hawken Proposal”, which calls for getting rid of federal emission standards for outdoor boilers altogether and letting states and municipalities voluntarily adopt standards.  The proposal is being led by Hawken Energy, a Missouri based company that believes the federal government should not interfere with how people heat their homes. 

In contrast, Central Boiler took a more moderate position and refrained from calling on the EPA to repeal Step 1 and/or Step 2 standards, instead asking the agency to “revisit the cost effectiveness and feasibility of the Step 2 emission limit.”

Lack of enforcement undermines certified boilers

 

Warren Walborn, CEO of Hawken
Energy with Rep. Bill Huizenga (R-MI).

An important concern among the outdoor wood boiler community is that the EPA has no enforcement capability to rein in the many manufacturers of unregulated outdoor boilers.  Yoder Outdoor Furnace, a HeatMaster retailer in Virginia said, “until [EPA] enforcement actually happens no manufacturer can afford to invest heavily in testing as these cheap illegal models will not allow them to recoup costs.”  That sentiment was echoed in many comments from industry, and it would seem to be an issue of concern to states and air quality agencies as well.  However, states and air quality agencies did not mention this problem in their comments.  

By opening the door to changes in the compliance timeline for stricter emission standards, the EPA may have built far more momentum for a new NSPS process in 2023.  The NSPS is supposed to be reviewed every eight years, and states and groups are likely to sue again to keep the EPA to that timeline.  Virtually all the states and air quality agencies engaged in fighting EPA’s proposed changes are now calling for far-reaching changes in the 2023 NSPS. If a democrat is in the White House in 2023, this momentum may result in even stricter emission limits and test method changes.  A group of eleven Attorney Generals said the 2020 emission standards are already “too lax.” If President Trump is re-elected, industry is likely to keep the upper hand and consolidate its goals, barring defeats in court.

Lisa Rector, a leader at
NESCAUM on wood
smoke reduction.

In addition to seeking input on granting a two-year sell-through for retailers for boilers and furnaces, and possible stoves, the EPA identified a half a dozen other issues for which it wanted feedback, from cordwood test methods to compliance testing.

The transition to cord wood testing

One area on which industry, states, air quality agencies and other groups all agree is the need to move toward testing and certification that more closely represents in-field operating conditions and performance.  This means testing and certifying stoves with cordwood, instead of crib wood (2x4s and 4x4s), capturing start-up emissions and potentially making even more structural changes to how stoves are tested.  The agreement may end there, however, as states and air quality agencies have now coalesced behind a test protocol being developed by Northeast States for Coordinated Airshed Management (NESCAUM) and the New York State Energy and Research Development Authority (NYSERDA), called the Integrated Duty Cycle (IDC) method.  Industry is firmly behind the ASTM E3053 method that they developed through a consensus-based process from 2015 to 2018. 

VP Berger, one of Hearth &
Home Technologies senior
leaders on NSPS issues.

Neither side is proposing a rapid change to mandatory cord wood testing.  States and air quality agencies are looking to the next NSPS in 2023 to consolidate their positions and interests.  The State of Oregon, home to most of the test labs and the very first certification testing in the mid 1980s, submitted comments that were particularly critical of ASTM methods.  

Hearth & Home Technologies (HHT), whose comments were often more moderate than some of their peers, said, “HHT recommends using ASTM E3053 until such time there is data showing that the ASTM method doesn’t replicate real-world cord wood emissions or that a new Federal Reference Method is needed.” 

States want labs to start using TEOMs immediately

While states and air quality agencies say that they do not want to change the existing NSPS and believe that any changes to testing and emission standards should be taken up in the 2023 NSPS.  However, they are calling on EPA to “adopt a requirement now, to take immediate effect, for the concurrent use of a tapered element oscillating microbalance (TEOM) test method to measure real-time particulate matter (PM), using the NESCAUM Standard Operating Procedures.”  Such a requirement would seem to involve a change to the current NSPS, unless it were a voluntary measure that labs could undertake as part of a research effort outside of it.

Third-party certification of stoves 

Once stoves or boilers are tested by third party labs, those labs currently send the test reports to the EPA for review and then the EPA issues the certification allowing the manufacturer to make and sell the appliance.  

Industry urged the EPA to ask for comments about a change in this process, whereby the lab would test the appliance and grant the certification, bypassing review by the EPA. Industry points to delays and backlogs at the EPA enforcement office, which takes up to 90 days to grant certificates once the lab provides the necessary documentation.  

 EPA officials, including Amanda
Aldridge and Rochelle Boyd, listen
to testimony on Dec. 17, 2018
on proposals to revise the NSPS.

Again, states and air quality agencies have lined up to oppose this proposal, arguing that the same lab that is paid by the manufacturer to test the stove should not be paid by the manufacturer to issue the certification.  With cutbacks to EPA funding, it does not appear likely that the EPA would hire additional people to help streamline the certification process and at the same time provide other oversight and enforcement of the NSPS, such as cracking down on manufacturers of uncertified outdoor wood boilers. 

Compliance audit testing

Another topic on which the EPA solicited comments is how and when stoves could be retested and audited for emissions compliance.  Auditing the accuracy of the lab that did certification testing of a pellet stove is far easier, as the variability of emissions in pellet stoves is not nearly as great as in wood stoves.  Industry, led by HPBA and Central Boiler, took the position that an audit test should only happen “where there is suspected fraud in certification test results” not random spot checks.  HPBA took an even stronger position, saying that EPA should “prohibit audit testing for appliance categories until there has been a determination on variability for the applicable test.”

Blaze King's Chris Neufeld, an
ardent promoter of catalytic stoves.

Others in industry, such as Hearth & Home Technologies, took the position that if a stove is to be audited, it should be done by the same lab that tested it initially or another lab chosen by the manufacturer.  

States and air quality agencies are taking a uniform position that “only an independent, third-party lab should be selected to conduct all compliance audit testing so that there is consistency across the program and that a lab that conducts certification testing is not permitted to conduct audit testing.” NESCAUM proposed that Brookhaven National Lab be designed as the independent lab.

Warranty requirements

Currently, the NSPS has warranty requirements for catalytic stoves, but not for non-catalytic stoves.  The industry position is that the NSPS should not have any warranty requirements. Hearth & Home Technologies commented that “all manufacturers already have warranty language... [and] whether the EPA required it or not, it is standard warranty language for an appliance.”

This topic drew less attention from states and air agencies, but most supported the retention of warranty language for cat stoves and the addition of warranty requirements for non-cats, “particularly ones for key components related to controlling emissions from the device (including, among others, tubes).”  Blaze King, a vocal leader on this issue, agreed that if any type of stove is required to provide warranty language, then all stoves should have that requirement.   

Steve Muzzy, head of Central Boiler.

Different emission standards for pellet and cordwood appliances

Some industry players see a solution to emission standards by holding pellet appliances, and possibly also catalytic appliances, to a stricter standard.  Central Boiler charged that the EPA was “negligent” to hold stick wood and pellet appliances to the same emission standard.

HPBA and industry leader Hearth & Home Technologies are not calling for a bifurcation of emission standards based on fuel type or whether a stove has a catalyst.  The first NSPS in 1990 originally set a 7.5 gram an hour standard for non-cat stoves and a 4.1 standard for catalytic stoves.  States and air agencies also do not support setting separate emission levels based on fuel or inclusion of a catalyst.  Tim Ballo, an Earth Justice attorney, commented, “EPA’s observation that more pellet stoves meet the Step 2 standards than crib or cord wood stoves does not support the adoption of weaker emission standards for crib or cord wood-fired heating devices.”

Bret Watson says Jotul is
doing "very well" in
certifying their 2020 models.

In an exasperated and testy comment, Blaze King accused Jotul of working with the State of Maine to “spread false, misleading and out of date information in an effort to secure market share.”  Jotul has been a strong advocate for non-catalytic stoves and was instrumental in distributing a form letter to retailers to submit to the EPA that severely criticized catalytic technologies.  An unspoken rule in the stove industry is never to criticize another manufacturer by name, but the Blaze King feud with Jotul has only become more intense as the NSPS revision process increased the stakes of the game.  It should be noted that in Jotul’s official comments to the EPA, they did not call for a bifurcation of emission standards. 

A renewable, low carbon energy source

The role of wood and pellets as a renewable, low carbon fuel is virtually lost by the EPA, industry, states and air agencies.  Technically, the renewability of wood plays no legal role in setting emission regulations or other EPA policies governing wood and pellet heating.  However, many industry comments referred to the important role that wood heating plays in the lives of rural, lower income households, allowing them an affordable alternative to fossil fuel heating.  While it didn't appear in their comments, many of the states urging the EPA to maintain cleaner emission standards are also providing incentives for more deployment of wood and pellet heaters.  New York, Vermont, Massachusetts, Maryland and others all have programs aimed at strengthening modern wood heating.  The Alliance for Green Heat was founded to promote the role of biomass as a low carbon fuel source and has tried to gain industry support for innovation leading to the automation of wood stoves.  But for now, the sides have been drawn on this issue based mostly on affordability vs. cleanliness, not on carbon.

What comes next?

The EPA has said that it may make a decision on whether to grant wood boilers and furnaces a two-year sell through in the spring of 2019.  As for all the other issues, including a two-year sell-through for stoves, they have only issued an advance notice and still have to decide if they will issue a formal proposal.  That proposal would also be followed by a public comment period and it is difficult to imagine a scenario that the EPA could announce any “relief” for manufacturers before winter of 2019/2020.

Bill Wehrum, in charge of weakening
air pollution rules at the EPA for the
Trump Administration, has little time
to deliver on wood heaters.

Industry came close to securing a more robust compliance extension from Congress in 2018 but fell short in the Senate.  With Democrats now in charge of the House, Congressional support for weaker or delayed emission standards is not an option in 2019 or 2020.

Clearly, the attempt to dilute the NSPS by the Trump Administration has coalesced and unified states and air agencies behind positions developed by NESCAUM and others.  They are looking to 2023 to regain the ascendancy that they lost under Administrator Pruitt and Wheeler’s leadership at the EPA.  If democrats take the White House in 2022, rewriting the NSPS starting in 2023 could be a possibility.  But a democratic White House and EPA would, in turn, energize Republican governors who seem to have been complacent during this comment process.  Under Republican Governor LePage, Maine was the one state that was emerging as a vocal supporter of the EPA’s deregulation of wood appliances, but during the comment process, a Democratic Governor was elected.  

At this point, time is critical as May 2020 approaches. It appears that the issue was not important enough for the EPA to put on a faster track and members of Congress supporting the hearth industry were not able to change that.  With a little more than a year to go, the question is – is it too late anyway?