States take on the EPA in controversial wood stove proposal

Mary Uhl of WESTAR testifying at a
2018 air quality meeting.

Industry touts economic strain on stove retailers, but outdoor wood boiler and furnace manufacturers are also behind campaign for more time

Updated on June 17 - A virtual EPA hearing on June 8 pitted states against the EPA over emission limits from wood stoves, boilers and furnaces.  The EPA is proposing to ease the emissions compliance timeline for wood stoves and boilers but over a dozen states urged the EPA to withdraw its proposal.  Minnesota formally told the EPA and the wood heating industry that stoves and boilers must comply with the existing timeline that was set in 2015 for sales and shipments in their state.  California’s Air Resources Board took a more combative tone and said they are considering a lawsuit for the illegal sale of non-compliant stoves after May 15.

“Minnesota incorporated the 2015 NSPS and its 2020 timetable into state laws … which means that the May 15, 2020 compliance deadline is enforceable in Minnesota. EPA’s proposed revision will not change this deadline,” said Anne Jackson, an engineer with the Minnesota Pollution Control Agency in her written testimony.

Peter Solac, a long-time Minnesota
based stove retailer who may not be
able to take advantage of a federal
time extension 

Peter Solac, of Woodland Stoves and Fireplaces, is a stove retailer based in Minnesota who testified that he needed the additional time for 15 Step 1 stoves that he was not able to sell due to Covid-19.  He did not address the predicament that his state will not allow it.   Central Boiler may face an even greater problem, as its manufacturing facility is in Minnesota, and they apparently still had some Step 1 boilers they want to sell.  On June 17, Rodney Tollefson of Central Boiler said in an email that "we have almost zero inventory of 2015 level certified units.  We are not asking for a sell through for us.   Our testimony was requesting sell through for our dealers that have inventory."

US Stove has also indicated their interest to ship units from their manufacturing facility during the proposed sell-through.  On May 29, Brandon Barry of US Stove wrote that “our inventory levels are confidential. I will say that sell through would be beneficial for us at both the manufacturing and retail level.  Some product came back to our location and could be sold if sell through comes to fruition.” On June 10, Mr. Barry said that AGH had misunderstood his previous email that that “We have been buying product back from retail. All that does is hurt our cash flow, which ultimately impacts our ability to manufacture new 2020 products. We understand that this is a “retail” sell through under consideration and not a manufacturers sell through.”

List of registered speakers at the
June 8 EPA hearing

However, England Stove Works, another major value stove manufacturer that also had buy back agreements clearly said that they do not have inventory they need to sell during a sell-through but like many other stove manufacturers, they support the ability of their retailers to use a sell-through.  Other manufacturers who indicate that they do not have Step 1 inventory themselves include Blaze King, Empire, Hearthstone and SBI, but all support the sell-through for their retailers.  David Kuhfal, CEO of Hearthstone said, “Hearthstone proactively sold down all step 1 products however; we absolutely support the opportunity for our dealers to have some time to liquidate their Step 1 inventory.”  Hearth & Home Technology, the largest manufacturer of more expensive stoves, say that they have no Step 1 inventory and their retailers should have been able to clear out their Step 1 inventory on time as well.

AGH asked HPBA if they were also seeking a sell-through for manufacturers and received this reply from Emily McGee, their Communications Director: "the reason we didn't reply to your question was that we don't have a position on that specific issue (manufacturers selling Step 1 products during a potential sell-through). Our focus has been on the retailers and remains so."  Many retailers have gone further, saying that the sell-through should not be open to manufactuers.

Of the 17 people who testified, about half were in favor of the sell-through and half were against it.  As with previous hearings and written testimony on the EPA wood heater regulations, all states and regional air agencies representing states were against extending deadlines.  Several retailers, a distributor, two manufacturers and HPBA representatives testified in favor of it.  Three non-profits were represented with the American Lung Association and EarthJustice speaking against, and the Alliance for Green Heat who favored a limited sell-through.  AGH is urging the EPA to only allow the sell-through for retailers, not manufacturers and also to limit it to stoves, not to central heaters.  Manufacturers of central heaters have been at the forefront of the fight for extended deadlines and sell-through and pose the largest threat to increased air pollution.

John Crouch, in upper left, in Crested
Butte, CO in 1989 with Bob Ferguson.

The arguments made by both sides were relatively predictable, with very little common ground.  However, Roger Ayers of Dreamstyle Remodeling focused on the need to regulate fireplaces that he estimates emit 44 grams of particulates per hour. Why focus on the difference of a gram or two between Step 1 and Step 2 when any home can still install unregulated fireplaces.  John Crouch of HPBA reminded everyone that many Step 1 stoves were already under 3.5 grams an hour and “the EPA has done no in-home testing of Step 1 or Step 2 stoves and has no way of knowing if these Step 2 stoves are an improvement or not.” 

Industry has asserted that there should have been a sell-through period built into the timeline from the start, like there was in 1988.  Mary Uhl of WESTAR countered that contention in her testimony, saying “In contrast to the original 1988 NSPS, in which manufacturers and retailers were allowed only two years to transition to more stringent standards, they received five years in the 2015 NSPS update.” 

Most of the states and air agencies argued that the EPA lacked a legal basis for the proposal,  did not do any regulatory impact analysis and is proposing to substitute two of the worst sales months for two of the best.  Maria Smilde of EarthJustice closed her testimony saying “Considering that respiratory difficulties have been a common COVID-19 symptom, the EPA should not use one public health crisis to rationalize extending another, nor does the Clean Air Act permit it to do so.”  Anne Jackson made a similar point, arguing that, “Given the health burden of fine particulate matter, there is no good reason to provide additional time to sell noncompliant devices, especially hydronic heaters, in the face of fighting a deadly, respiratory virus pandemic.”

Possibly the most surprising arguments against the sell-through came from the Minnesota Pollution Control Agency. “Minnesota was expecting full support from EPA to notify manufacturers and retailers about the approaching May 2020 deadline, and to undertake enforcement as necessary, especially with internet sales, as that is the most difficult for Minnesota to monitor. With EPA’s announcement of a proposed sell-through period along with lax enforcement, Minnesota must now undertake a nation-wide communication effort to notify manufacturers and retailers that Minnesota law does not allow sales in Minnesota of non-Step 2 wood-burning appliances.“

California is an anomaly as stationary sources of pollution are controlled by local air districts, not by the state.  Their Air Resources Board commented “Many states, and over half of California’s 35 local air districts, including the largest air districts, have delegated EPA authority to enforce the NSPS.  Under Clean Air Act section 304, states, other jurisdictions, and private citizens can also file citizen suits for sale of Step 1 stoves before any sell-through is finalized.  EPA may have chosen not to enforce the Step 1 sales ban in the period before any sell-through is finalized, but others can.”

The EPA will be transcribing all the testimony from the hearing and entering it into the official record, as they consider whether to approve a sell-through. 

Related stories

EPA and states vigorously defend wood stove audit testing (Sept. 2020)

HPBA 2020 Expo showcases all new stoves to smaller audience

Jack Goldman, right, opens the 2020
Expo in New Orleans.

Updated, April 9, 2020: The hearth industry’s annual marketplace for manufacturers and retailers concluded on March 14^th, a half a day early in New Orleans amidst a dwindling crowd and growing concern about the spread of Covid-19. This was the first hearth industry gathering since the late 1980s in which virtually all the stoves and boilers on the floor were newly redesigned and tested to meet stricter emission standards.  

Some manufacturers were clearly proud of what they felt were genuinely cleaner stoves while others were unconvinced or cynical of the new standard’s impact in the real world. 

Mark Shmorhun of the DOE's
Biotechnology office
attended the Expo to talk to
manufacturers about R&D
funding needs.

Due to Coronavirus concerns, Travis and Jotul, two large manufacturers, pulled out at the last minute, leading to a notably smaller Expo. U.S. Stove, having dropped their HPBA membership, decided not to attend this year, presumably because their inability to meet the 2020 emission standards on most of their appliances weakened their position in the hearth industry.  US Stove has 18 stove models that are 2020 compliant but no 2020 compliant furnaces yet, an area it had once domoniated.  US Stove responded to this blog, saying they are well positioned to move forward with a broad range of new and exciting products.

From the perspective of the Alliance for Green Heat, the 2020 Expo showcased several notable trends, some encouraging and others troubling.  

Vesta gives Best in Show award to an automated wood stove

Possibly the biggest highlight for AGH was seeing automated stoves take more of a foothold in the marketplace. Napoleon’s Eco Smart wood stove won Best in Show at the Vesta Awards, marking the first time that an automated stove won a Vesta Award.  The stove has an optical sensor that monitors particulate matter and can continually adjust air settings to produce a cleaner burn. According to Napoleon, the automation will only add $300 to the price and they expect the complete system with stove to retail for about $2,500. The stove also connects to the Napoleon cloud via the user's smart phone so they can monitor combustion conditions. The user can also allow the company to log data from the stove, providing a valuable record of how the stove runs. The stove is not yet EPA certified, but should be within months. 

The Charnwood Skye 2700, expected to
retail for about $3,300, several hundred
more than its non-automated cousin.

Charnwood, a British manufacturer, also was a finalist in the Vesta award, with their Skye E2700, also an automated stove that does much of what the Napoleon does, but with different technology.  Charnwood will be entering the US market for the first time later this year with this stove. Hugh Wells, head of the Britsh company told AGH, "We are very excited about this product because it does revolutionise how we burn wood by taking out user error." CFS-Teco did the certication testing in Portland and it achieved 78% efficiency, the highest of any non-cat. 

SBI should also have an automated stove on the market within a year, and MF Fire had their automated Catalyst on display at the Expo and have another one in development.  Maxitrol also exhibited a prototype of an automated stove and says that they are taking off in Germany.  Napoleon also won a second Vesta award for their novel "Heat & Cool Electric Fireplace," a mini-split heat pump housed in an electric fireplace.  

2020 stove trends

The 2020 NSPS has resulted in many more catalytic and hybrid stove models. AGH is particularly

Larry Brockman from the EPA's
voluntary Burn Wise program
talks the MF Fire staff about their
automated stove.

happy to see more hybrid models as they help reduce start-up smoke and provide back-up secondary combustion if the operator does not engage the catalyst. A more unnoticed trend is the rapid adoption of the ASTM E3503 cordwood test method. Data from the EPA list of stoves shows the average grams per hour for cordwood tested stoves is 1.6 grams – the exact same average for crib tested stoves. About 45% of all 2020 certified wood stoves were tested with the ASTM cordwood method, which reportedly has more flexibility in its parameters making it easier for manufacturers to pass the certification test. Nearly all of the smaller non-cat stoves were tested with cordwood. Quite a few very affordable stoves that sell primarily in big box and hardware stores are passing the 2020 standards, and some stoves barely had to undergo any redesign.  

A sophisticated, lower priced electronic precipitator

ESPs for wood stoves, considered
far-fetched just a few years ago, are
improving rapidly and popular in
Germany and Switzerland. 

Danish manufacturer Enervex brought a self-cleaning electronic precipitator, known as an ESP. They are commonly used by factories and restaurants, but now small and affordable enough for residential applications. ESPs are a type of scrubber that uses static electricity to remove particulate matter from exhaust fumes before the particulates exit the smokestack. Enervex’s innovation is to design a residential ESP that is self-cleaning, often a big problem, and to bring the price down. They expect theirs will sell for $1,200- $1,600 when it comes on the US market. There is a quickly growing market for them in Germany, now that they are recognized by the country's eco-label, Blue Swan, and some cities may require them. OekoSolve, a Swiss company, made the ESP being tested in Fairbanks.

HPBA recruits Appalachia Service Project to take 2015 stoves in May

To address the fate of potentially hundreds of wood stoves that are 2015 certified but not allowed to be sold after May 15, 2020, HPBA negotiated with the EPA to allow retailers to donate stoves to a non-profit who can them install them. HPBA is teaming up with the Christian ministry Appalachia Service Project, based in Tennessee, who repairs homes in Central Appalachia, making them warmer,

AGH President John Ackerly with
Adam Bean of the Appalachia
Service Project

safer, and drier. At the Expo, AGH met with Adam Bean, Home Repair Coordinator for the group, who is quickly learning about wood stove installations and trying to estimate how many stoves his group has the capacity to install, which will partly depend on securing donated NFI installing and training.

Pellet stoves out of the limelight

Even though pellet stoves were relatively easy to redesign and test at 2 grams an hour or lower, the market for pellet stoves has not been particularly good and there were not many on the Expo floor. There were no pellet stove finalists in the Vesta Awards, which may indicate a pause in innovation in the North American market.

EPA announces final NSPS rule during Expo

On the first day of the conference, the EPA formally announced that they would not allow a retailer sell-through. The EPA had said on October 15, 2019 that entities should follow the compliance dates but some felt that there was still a chance for a sell-through. HPBA expressed its disappointment in a written statement while the Pellet Fuel Institute claimed a victory because the EPA removed minimum requirements from pellet fuel while retaining the prohibition that pellet fuel must not contain any of the prohibited fuels listed in the 2015 NSPS. There remains considerable debate about whether the 5-year timeline would have been enough if manufacturers had started redesigning and testing to the 2020 standards early in the process. Key excerpts of the EPA ruling provide detailed insight into why the EPA did not allow a sell-through. Some did start early and began offering 2020 compliant models to their retailers as soon as 2018, while most did not start releasing 2020 models until 2019 or even this year.  The issue was far more complicated because manufacturers had large inventories of 2015 stoves and some needed the cooperation of retailers to buy their 2015 inventory well into 2019. An HPBA mailer to retailers in 2019 said: “retailers and distributors should NOT immediately stop buying anything that doesn’t meet Step 2” in part because there wasn’t enough variety and in part because manufacturers still needed revenue from sales of their 2015 inventory.

EPA holds 3-day wood smoke workshop

One of the main reasons AGH attends the annual HPBA Expo is to participate in workshops

The wood smoke workshop brought
scores of experts from across the US
to share new knowledge, tactics and
success stories.

organized by the EPA on wood smoke reduction strategies. This year the workshop was coordinated and supported by EPA's Burn Wise, the Western States Air Resources Council (WESTAR), the Northeast States for Coordinated Air Use Management (NESCAUM) and National Tribal Air Association (NTAA) and was going to be the largest one ever, with nearly 100 federal, state, local and tribal participants registered.  But some states like Washington banned their employees from travel and many other participants cancelled, leaving a group of about 60. The workshop mainly consisted of a series of talks and powerpoints about change out programs, cord wood test methods, the impact of the NSPS, DOE funding opportunities for stove R&D, retrofits and ESPs, low cost consumer air quality sensors, indoor air quality issues, addressing wood smoke complaints, etc. Most of the powerpoints can be dowloaded here. AGH also hosted a gumbo and etouffee networking reception on Frenchman Street for all the participants. 

The 2021 HPBA Expo is scheduled for March 4-6 in Nashville, Tennessee.

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.

Private talks yield consensus on key issues in EPA wood heater regulations

In July, three men met in Canada for sensitive, private meetings to see if they could reach agreement on key sections of the proposed EPA wood heater regulations.  Two represented regional air quality agencies and one represented the wood stove and boiler industry.  They were able to compromise on many issues, but were too far apart to reach any agreement on many others.  More than a month later, after consulting with their members, they flew to Washington and presented their consensus positions to EPA Acting Assistant Administrator Janet McCabe.

The three individuals were Arthur Marin of the Northeast States for Coordinated Air Use Management

Arthur Marin, Executive Director of
NESCAUM.

(NESCAUM), Dan Johnson of Western States Air Resources Council (WESTAR) and Jack Goldman of the Hearth, Patio & Barbecue Association (HPBA).  The meeting arose from efforts by the air agencies and it was agreed that only the principals of each institution would take part in the face-to-face meetings as they were under a tight timeline and needed to keep the discussions high-level. 

The EPA was not part of these discussions nor present, and is under no obligation to adopt any of the consensus positions. However, it is expected that the agency is likely to adopt many of them.

Most of the areas of agreement were around sell-through, grandfathering, certification extension and cordwood testing timelines.  There was no mention of emission levels in the document.  The EPA posted the three-page consensus document in the official record.

Jack Goldman, CEO of HPBA

The positions reflect an effort by the three institutions to reach consensus but do not necessarily reflect the positions of all the groups' members.  Some manufacturers feel that the HPBA has not represented them aggressively enough, and the consensus positions deal with each technology very differently.  For example, the consensus position is toughest on outdoor boilers as it does not recommend any grandfathering or sell-through of unqualified boilers.  The position on exempt wood stoves is more lenient: a one-year sell-through.  Even more lenient is the position on unregulated indoor warm air furnaces, which would get a one-year extension for manufacturing and an additional sell-through year, for a total of two years.

Janet McCabe, EPA Acting Assistant
Administrator of the Office of
Air and Radiation

The other major area of agreement is that the switch to cordwood testing for certification should happen, but it is not feasible to implement immediately.  Both sides agree that the EPA should move in that direction but a clearly defined test procedure and a more robust database of cordwood testing is needed.  However, the consensus paper is silent on the drawn out ASTM cord wood fueling protocol process and instead proposes that a cordwood protocol be developed by a working group established by the EPA under the Federal Advisory Committee Act (FACA). This would be the protocol used to build the database of emissions from cordwood testing.  It is unclear if this protocol could capture start-up emissions, or how it would better represent real world emission profiles in consumers' homes.

The consensus positions made no mention of pellet stoves, hangtags or many other contentious issues.  Often, issues were not mentioned in the document because they were not included in the discussions.  For example, the issue of consumer hangtags, which industry opposed in their comments, was reportedly not raised by either side.

Another very significant consensus position is that all boilers that are certified by New York (and tested by EPA methods)  on the effective date of the rule should have their certifications extended for five years.  This may mean that manufacturers will not have to undergo the time and expense of retesting any of their existing units for a five year period and instead focus their efforts on redesigning cleaner stoves.  Virtually all the exempt and unregulated pellet stoves are already going through the certification process and many wood stoves are using the "K list" to get new five year certifications.  These new certifications and "freshening up" of existing ones would have given most stoves certifications up to four years into the new rule.

Possibly the biggest concession by the air agencies is the agreement to allow warm air furnaces to essentially remain unregulated for another year.  This would allow many small manufacturers of outdoor wood furnaces to continue making and selling their units even through they may have no capacity or intention of meeting EPA regulations.  However, the EPA has reportedly already told key stakeholders that they have no legal basis under the Clean Air Act Section 111 for Step 1 emission standards to be delayed beyond the effective date of the rule.

If the EPA adopts these recommendations, it would provide relief to most manufacturers and retailers.  However, the EPA could still set Phase 2 standards, which would take effect in 2020, as low as 1.3 grams per hour for wood and pellet stoves.  Many observers believe that the EPA is not likely to require such a low emission level and some in industry say they would be relieved if the EPA settled at 3 grams per hour.

The key positions of agreement are outlined below. These recommendations, if any are adopted by the EPA, would start on the effective date of the regulation, which will likely be in May of 2015:

1. Woodstoves:

a)    Unregulated and exempt stoves cannot be manufactured.

b)    Retail sales of all exempt and certified stoves (up to 7.5 g/hr for non-cat stoves) cam continue for one year.

c)    Certification of stoves that meet Sept 1 levels (proposed at 4.5 g/hr) will be extended for five years or until Step 2 emissions standards take effect.

2. Hydronic Heaters (indoor and outdoor):

a)    Only New York certified heaters may be manufactured.

b)   Retail sales of boilers that are not EPA Phase 2 qualified – and approved by New York – are not allowed. (New York requires a thorough regulatory review process for certification.)

c)    Models tested to EPA's voluntary program and certified by New York will be deemed certified for five years.

3. Warm Air Furnaces:

a)    Provide a 1-year extension to continue manufacturing unregulated furnaces.

b)   Retail sales may be allowed for one year beyond the effective date.

4. Cord wood:

a)    The transition to cord wood testing to certify new heaters should be implemented for Step 2 but will require a robust database and EPA approved method.

5. Oversight of Labs:

a)    Labs will provide 30 days notice of testing to states to allow for federal and state access to witness emission testing.

b)   All certification data related to emissions should be publicly available.

c)    Provide states with partial delegation of authority over some enforcement and compliance issues and prohibit them from action on other issues.

The above summary does not capture all the detail and nuance of these five areas of consensus.  Please refer to the original “Consensus Positions” for exact language that was agreed upon by HPBA, NESCAUM and WESTAR.

"We commend NESCAUM, WESTAR and HPBA for undertaking this important effort and for their willingness to all make substantial compromises," said John Ackerly, President of the Alliance for Green Heat.  "We urge the EPA to adopt these recommendations in the NSPS and to provide the enforcement to quickly close any loopholes that may emerge after implementation," Ackerly continued.

The consensus positions may give manufacturers and retailers more certainty about what they can build and distribute in the months leading up to the promulgation.  It is also possible that the EPA has provided some assurance to industry about the likelihood of some of these provisions.  The EPA may have already decided some of what was contained in the Consensus Position paper.  For example, it is reported that the EPA had decided not to use cordwood for certification testing in 2015 months before the meetings between industry and air agencies. 

It is likely that most major decisions on the NSPS have already been made or are close to final as the final draft of the NSPS will be submitted to the Office of Budget and Management in October.  Even the recommendations in the Consensus paper were late for consideration by the EPA.

This consensus paper may not make litigation less likely, but it may reduce the number of issues that are likely to be litigated.  Longer sell-through periods, for example, compared to the very short ones in the proposed NSPS, will decrease economic impacts on many small businesses, making the small business issue more difficult to litigate.  Further, this effort between air agencies and the industry trade group that had been key protagonists throughout much of the debate around the proposal suggest a more collaborative relationship can be forged among these parties to help implement a new NSPS.

NESCAUM is an association of the 8 northeastern states, including New Jersey, New York and the New England States.  On NSPS issues, Maine is not being represented by NESCAUM and is taking more pro-industry positions.  WESTAR now represents 15 states, from Alaska to New Mexico.  Those states represent an even wider range of the political spectrum than those in NESCAUM, but none have made the open break with their association that Maine has.