Hearth industry lists grounds for lawsuit against EPA

David Chung is a
lead attorney for HPBA

Updated: June 17, 2015
The US Court of Appeals has consolidated four lawsuits against the EPA’s wood heater rules together into one lawsuit.  The four parties are the Hearth, Patio & Barbecue Association (HPBA), the Pellet Fuels Institute, Tulikivi and Richard Burns & co..

Consolidation means that the four parties opposing parts of the rule will likely have to write and share one brief (while sticking to the typical 14,000 word limit), unless they can convince the court that separate briefs are appropriate or that they should be granted more space. This usually means that the four parties need to pick only their best arguments and discard some smaller or less appealing arguments.  In practice, this means that the challengers won’t be able to throw “everything but the kitchen sink” at EPA.

HPBA filed its list of issues (PDF link) as required by the court, giving the EPA and broader hearth community a detailed look into exactly what HPBA will be challenging and what they hope to change in the NSPS.  Their three main areas are:

* The 2020 particulate matter emission standards for wood heaters, residential hydronic heaters and residential forced-air furnaces are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

* The “failure to include adjustments for test method precision” is in the compliance audit testing is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

* The ability of the EPA to use test methods and other provisions that are not developed through a consensus standard-making process.

HPBA’s challenge on stricter emissions standards in 2020 has been widely anticipated, but their challenge on EPA recognition of non-consensus test methods indicates that industry may be seeking more control over how indoor and outdoor boilers are accredited by the EPA.  At issue is the long simmering division between domestic outdoor wood boiler manufacturers and those companies importing and manufacturing European style boilers. 

The development of test methods for stoves and boilers have traditionally been dominated by the domestic stove and boiler industry through the EPA and/or ASTM.  The consensus driven ASTM process is open to anyone who wants to participate, but is dominated by HPBA insiders, experts and manufacturers. In recent years, New York State bucked that system by funding the development of an alternative test method outside the ASTM process that “is a major modification of EPA Method 28 WHH, intended to provide a method to evaluate a specific type of advanced wood heating boilers.” 

The NSPS says that boilers certified by New York State or qualified under the New York’s Renewable Heat New York (RHNY) program are to be automatically deemed EPA certified to meet the Step 1 emission limits.  If HPBA is successful in its challenge, it is unclear if all of those units could lose their certification, giving HPBA member companies a big edge over companies who participated in the New York program, which are mainly non-HPBA members.

Despite the lawsuit by HPBA, a number of their member stove manufacturers are already reassuring their distributors and retailers that they will be able to meet the 2020 emission standards.  And, many, if not most companies are starting R&D efforts to meet the stricter standards because there is no guarantee that the suit will be successful and they cannot afford to do nothing for several years.  Even those HPBA member companies who do not agree with the lawsuit have to help pay for it.  The suit is funded by assessments on all member manufacturers.

Rick Curkeet

HPBA is also challenging the EPA’s “failure” to take test method imprecision into account.   Rick Curkeet, one of the key figures involved in the study that shows wide testing imprecision, recently explained the issue in a public paper. 

“Unfortunately the EPA has chosen to ignore the reality that the test process does not appear to be able to reliably distinguish emissions performance differences of several grams per hour. Indeed, it will take some very good luck in addition to high quality testing to obtain acceptable results. A possible means of reducing this risk is for designers to focus R&D efforts on getting repeatable results and not simply a low number.”

Tom Morrissey

Tom Morrissey, the owner of Woodstock Soapstone Stoves, a non-HPBA member, says Curkeet’s study is riddled with flaws and should not be relied upon by policymakers or regulators.

The Pellet Fuel Institute (PFI), headed by Jennifer Hedrick is challenging the authority of the EPA to regulate pellet fuel and to include ENplus and CANplus, since the EPA did not offer an opportunity to comment on their inclusion in the rule.  (PFI court filing, PDF)  It is unlikely that PFI would want the EPA to remove references to certified pellet fuel, as PFI has worked diligently for many years to establish the certification standard, with EPA involvement.  PFI may just want the EPA to recognize their third party standard, but not get involved in what ingredients and characteristics should be allowed.  Most PFI members who manufacturer pellets have not agreed to become part of the PFI pellet certification program and some of them use ingredients in their pellets which are not allowed by the NSPS.

Jennifer Hedrick

For example, one of the other litigants, Richard Burns & Co, is a PFI member, a pellet producer and also a recycler of construction and demolition debris, and retailer of #2 wood chips.  The NSPS does not allow plywood, construction and demolition debris, paper and cardboard and many other items to be used to make pellets. The court filings from PFI and Richard Burns & Co should be available soon.

Tulikivi, the dominant leader of factory built masonry heaters, is suing the EPA because the NSPS did not include them as a regulated technology.  Since nearly all categories of wood heaters are now required to be certified by the EPA, lack of certification for masonry heaters will become a market barrier.  (Tulikivi court filing, PDF.)

The U.S. Court of Appeals will likely to soon be studying both sides of this argument.  Several air quality non-profit groups have also intervened to help the EPA defend the rule and will likely be arguing that that Step 2 emission standards are realistic and achievable, and if anything, are too lax.

New EPA Stove Regulations Begin Cleaner Chapter for Wood Heating

Statement by the Alliance for Green Heat on the Wood Heater NSPS

Key EPA architects of this NSPS include
Greg Green, left, and Gil Wood,  right  and
Amanda Simcox. Gil retired on February 3. 

Overall, the EPA did a good job and released a fair rule that includes many compromises between industry and air quality agencies.  We think these rules are good for consumers and will not drive prices up substantially for most product categories, but will result in cleaner and more efficient appliances that will ultimately save consumers time and money. This is our initial reaction to the rule, which we will be followed by a more thorough analysis.

High performance stoves: The EPA took some key steps to address the lack of recognition for high performing appliances. Notably, stoves that test with cordwood in the next 5 years can use a special EPA label that will alert consumers that the device is designed and tested for use like the consumer will use it. This shift is possibly as important than just lowering emission standards for wood stoves. Along these lines, the EPA is also allowing stoves that already meet the 2020 standards, to use a special label so consumers can more easily recognize these higher performing stoves. We are, however, very disappointed that the EPA removed the long-standing requirement that all stoves have a consumer hang-tag that helps consumers better appreciate the basic differences between all stoves on the showroom floor.

Boiler testing: Another positive step forward is EPA’s recognition of the European test method EN303-5 to certify European style indoor pellet boilers that have been accepted by Renewable Heat New York (RHNY). Also boilers certified by the New York State Department of Environmental Conservation (NYSDEC) will be automatically deemed EPA certified. This is another step to recognizing higher performance equipment. NYSERDA deserves credit for the R&D, test method and other funding that EPA and DOE should have been doing to develop higher performance equipment. These parts of the new EPA rule will help give consumers more options to buy cleaner and more efficient devices.

Stove emission standards: As expected, the EPA is staying with the de facto status quo for the next 5 years, at 4.5 grams an hour (g/hr). The 2 g/hr standard for stoves as of 2020 is fair and reasonable. As the EPA explained in the rule “nearly 90 percent of current catalytic/hybrid stoves and over 18 percent of current non-catalytic stoves” already meet the Step 2 emission limit of 2 g/hr. We hope that those manufacturers who have to redesign stoves use the opportunity to redesign to use cordwood and to reduce start-up and fugitive emissions. The optional Step 2 certification test for cordwood at 2.5 g/hr represents a very creative and positive approach by the EPA to move towards required cord wood testing.

Some independent stove and boiler companies played a vital role in broadening the debate and sharing key data sets that enabled the EPA to show that some stoves can already meet the Step 2 standards of 2 g/hr with cordwood. We are pleased that companies who participated in the 2013 Wood Stove Design Challenge helped the EPA and OMB understand that smallest manufacturers can undertake the R&D to make very clean and affordable stoves that operate well on cordwood.

Key issues not addressed: Some of the most important issues with wood stoves are difficult to address in regulations, such as indoor air quality from fugitive smoke and the ability for homeowners to reduce air-flow so much that the stove smolders for hours on end, which is often a nightly occurrence. Ultimately, we believe that some types of automation are needed to prevent the widespread consumer misuse of wood stoves. The attempt by the EPA to set a maximum emission level while the stove is on its lowest burn rate was a good start. We had urged the EPA to more formally address alternative tests for automated stoves that hold tremendous promise to reduce widespread poor operation by consumers.

Warm air furnaces: Delaying the standards for all warm air furnaces for 1 - 2 years was a mistake because some companies have little ability or intention of meeting the Step 1 standards. An interim measure after 6 months to distinguish between companies on their way towards meeting standards and those who aren’t would have been far better.

Exempt wood stoves: We are very pleased to see that the era of exempt wood stoves is over. About 1 out of every 3 or 4 new wood stoves sold in America has been exempt in recent years and EPA had considered a weaker standard for them, but is now holding them to same standard as all other stoves.

Masonry heaters: The EPA was not able to set standards for masonry heaters but we are glad to see that the EPA has charted a path forward to work with the Masonry Heater Association so that masonry heaters become a certified appliance category

Sell-through period: The sell-through period, set at 8 months through December 31st is fair for certified wood stoves, pellet stoves and qualified or EN303-5 approved boilers, but too long for exempt wood stoves and traditional outdoor boilers which should have come off the market sooner.

Electronic reporting: We were very glad to see that the EPA will begin electronic reporting for stove certification tests and provide more transparency for the public and access more data that is not Confidential Business Information (CBI) about stove tests.

Efficiency: Achievable efficiency standards are important in the near future and we are pleased that the EPA will finally require the manufacturers to test for, and report actual efficiency numbers not only to the EPA, but also on their websites. In practice however, many existing stoves many not have to retest for 3-5 years and it is unclear if they will have to disclose efficiency before then, unless they do it voluntarily. This is particularly important for boilers and pellet stoves that have a very wide range of efficiencies.

Renewable energy: We are very disappointed that the EPA did not mention the term “renewable” in this rule. The EPA Office of Air and Radiation should take into consideration that this sector has potential not just to make cleaner energy, but to use a renewable energy source and displace fossil fuels. Governor Cuomo’s Renewable Heat New York is investing tens of millions into the sector and integrates the goal of driving down emissions, driving up efficiency while replacing fossil fuels and offering homeowners an affordable, renewable heating source. In addition to setting minimum emission standards for lab testing, the EPA should adopt a more integrated approach to this technology that is being increasingly adopted not just by New York, but by other states as well.

In conclusion, the EPA crafted a fair and balanced rule overall and took some important steps towards testing with cordwood and recognizing those companies who take steps to build stoves based on how consumers operates them. In the long run, this new rule will result in cleaner appliances and a better foundation for renewable wood and pellet heating.

Full EPA rule and fact sheets

Wood and pellet stoves

Step	New PM emissions limit	Compliance deadlines
Step 1: All uncertified wood and pellet stoves (cat and non-cat)	4.5 grams per hour for crib wood test method If tested with cordwood, emissions test method must be approved, and stoves must meet crib wood limit	60 days after publication in the Federal Register
Step 2: All wood and pellet stoves (cat and non-cat)	2.0 grams per hour, or 2.5 grams per hour if tested with cordwood (test method must be approved)	5 years after publication in the Federal Register (2020)

Hydronic heaters

Step	New PM emissions limit	Compliance deadlines
Step 1	0.32 pounds per million Btu heat output (weighted average), with a cap of 18 grams per hour for individual test runs (crib wood test method) If tested with cordwood, emissions test method must be approved, and stoves must meet crib wood limit	60 days after publication in the Federal Register
Step 2	0.10 pounds per million Btu heat output for each burn rate, or 0.15 pounds per million Btu heat output for each burn rate. If tested with cordwood; method must be approved	5 years after publication in the Federal Register (2020)

Warm air furnaces

Step	Standard	Compliance deadlines
Step 1	Operational/work practice standards	60 days after publication in the Federal Register
Step 2	Emissions limit of 0.93 pounds of PM per million Btu heat output, weighted average. Cordwood testing is required for forced air furnaces	Small furnaces: 1 year after publication in the Federal Register (2016) Large furnaces: 2 years after publication (2017)
Step 3	Emissions limit of 0.15 pounds of PM per million Btu heat output for each individual burn rate. Cordwood testing required	All furnaces: 5 years after publication in the Federal Register (2020)

Related stories:
Private Talks Yield Consensus on Key Issues in NSPS
Paper Undermines Stove Industry Variability Study