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

Updated: May 31, 2015

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

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

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

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

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

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

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

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

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

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

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

Photo essay: wood stoves around the world

(Updated, March 2022) Heating with wood stoves is common in many countries around the globe, particularly in rural areas where wood is plentiful.  Wood heating is also tied to poverty to a certain extent in most countries and can rapidly grow when fossil fuel prices spike.

We show typical wood heating stoves in 40 countries, though its impossible to capture a country's stove heating culture in a single photo.  Most countries where wood heating is popular have a wide range of stove technology, from older, obsolete stoves to modern, expensive models.  We focused on older stoves as they tend to be more common in most countries to show the widespread problem of aging stoves that need to be replaced with newer ones - or other affordable heat sources.  Most countries have no regulations that set particular matter standards for new stoves. The issue of public funding for change out programs is often not an option.

We compiled a separate photo essay of firewood collecting cultures around the globe that tell equally important stories about the benefits of using a free, local fuel as well as the problems it can cause.

A home in the United States

Many countries are neglecting the development of a generation of cleaner wood and pellet heating stove technology.  Wood stove technology is developing in many countries, as shown in some of the photos below. But the pace is far too slow to match the economic opportunity and environmental and benefits that wood offers, and the air quality dangers it can otherwise pose.

Over the last 10 years, we have seen populations turn to wood stoves in large numbers our of political and/or economic necessity. The invasion of Ukraine is driving increased energy prices, and thus the increased reliance on old and new stoves; the 2008 banking crisis in the US and Europe contributed to a meltdown in Greece, leading to widespread unemployment and a nationwide resurgence in wood stove use; incentive structures in the U.K. have led to more wood stoves, instead of pellet stoves.

These photos show how this ancient fuel source persists in helping to affordably keep people warm.

Albania

Armenia

Bhutan

Byurakan, Armenia

Australia

 Austria

Azerbaijan

Belarus


Bulgaria

Canada

Chile 

China 

Czech Republic

Denmark

Ecuador 

Finland

France



Georgia (formerly USSR)

Germany

Greece



Hungary

India

Italy

Ireland


Japan

Kazakhstan

Kyrgyzstan

Korea 

Lithuania

Montenegro


New Zealand

Norway

South Ossetian Autonomous Oblast
(former USSR) 

Peru

Poland

Portugal


Romania

 Russia

Slovakia

Syrian refugees (in Bulgaria)


Tajikistan

Tibet

Ukraine

United Kingdom




United States

Vatican

An Open Letter to the Utah Legislature in Support of Outdoor Wood Boiler Regulations

The Utah legislature is moving quickly to overturn very reasonable and fair regulations on outdoor wood boilers. Please consider adding your signature to the open letter below, urging Utah to keep the regulations approved by their Air Quality Board.

Utah's regulations allow the installation of EPA Phase 2 outdoor wood boilers in most of the state, but ban them from the very populated areas around Salt Lake which are in air quality non-attainment.

An outdoor boiler manufacturer is aggressively fighting to get the legislature to overturn those regulation based on many misleading statements. Click here for the flyer being circulated to Utah Senators, which argues that outdoor boilers are far more efficient and cleaner than stoves.

The legislation, HB 394, was passed by the Utah house yesterday by a vote of 79 to 12. It moved to the Senate today and will be voted on Wednesday or Thursday without being referring to any committee for a hearing. This legislation will "amend the powers of the Air Quality Board" and prohibit them from "regulating the sale, installation, replacement or operation of an outdoor wood boiler any differently from any other solid fuel burning devices."

If the Senate passes this measure, unregulated and unqualified outdoor wood boilers will be allowed to be installed in Utah.

If you can add your name to the letter below, please email your name (and affiliation if you want your affiliation to appear on the letter) to melissa@forgreenheat.org by no later than 4:00 pm on Wednesday, March 13.

For more information about this, click here.

*****

Dear esteemed members of the Utah Senate,

We, the undersigned, are writing to urge you not to vote for HB 394 which would overturn Utah's outdoor wood boiler regulations.

The Utah rule finalized by the Air Quality Board is very reasonable, fair and consistent with efforts and regulations in many other states. Revoking the rule is unwarranted and unwise and will open up a market for boiler companies to sell extremely polluting and unregulated appliances.

The efforts to overturn this regulation are based on misleading and inaccurate claims, as set forth in the flyer "Some Facts About HB 294." For example, the flyer claims:

"Outdoor wood boilers are completely legal in 49 other states and only banned in Utah's non-attainment areas."

"Outdoor wood boilers are many times more efficient than EPA certified indoor wood burners."

States all over the country are enacting regulations similar to the ones Utah developed. These regulations are reasonable and necessary to prevent the spread of the most polluting wood burning device in America -- outdoor wood boilers that are not EPA qualified.

At the very least, this bill deserves a full hearing and should not be voted on quickly at the very end of the legislative session. We urge you to protect the reputation of the Utah Senate and not vote for this flawed bill that is based on so many misrepresentations.

Sincerely,

[Your name]

Outdoor boilers cleaner than wood stoves, boiler lobby tells Utah legislators

Legislators move to overturn outdoor boiler regulations

In a heated fight over whether outdoor boilers should be allowed in areas of Utah with poor air quality, the outdoor boiler lobby is trying to sway lawmakers with data that purports to show that boilers are cleaner than wood stoves.

However, the opposite is usually true.  Wood stoves tend to be far, far cleaner than conventional outdoor wood boilers.  Data provided by Central Boiler was deliberately misleading, and was dismissed by experts.

(Update: The outdoor wood boiler lobby was not successful and in March 2013 Utah passed regulations that restrict what types can be installed in Utah.)

The lead Utah resident pushing for regulations that would allow outdoor boilers, Daniel Leavitt, represented himself as a concerned citizen to the Utah Air Quality Board, and the Utah paper refers to him as a resident who operates his outdoor wood boiler to heat his home. But what the paper didn't mention is that Leavitt is also a prominent Utah lawyer specializing in government relations and the brother of the former Governor of Utah. In addition, Leavitt was being paid by Central Boiler, the boiler manufacturer leading the campaign.

In February, Utah adopted regulations that allowed the installation of Phase 2 outdoor boilers in most of the state but banned them in populated areas that do not meet federal air quality attainment standards. Central Boiler had fought against the regulations but were ultimately unsuccessful. 

After the regulations were promulgated, the boiler manufacturer took its case to the legislature. On March 7, a near unanimous legislative committee sided with Central Boiler. They approved HB394, which “prohibits the Air Quality Board from regulating the sale, installation, replacement, or operation of an outdoor wood  boiler differently than other solid fuel burning
 devices.” Om March 11, the bill was passed by the Utah House and moved to the Senate.

Central Boiler submitted comments arguing that Phase 2 outdoor boilers “are cleaner than EPA certified wood stoves.” David Leavitt, the "concerned citizen" hired by Central Boiler, is also carrying that message. "These outdoor wood boilers are vastly more efficient than burning anything indoors," he told the Deseret News.  

“Utah legislators should understand that even the best wood stoves and wood boilers are only as clean as the wood that is loaded in them,” said John Ackerly, President of the Alliance for Green Heat, a independent non-profit promoting cleaner and more efficient wood heating. Outdoor wood boilers have fireboxes usually ranging from 14-60 cubic feet while a wood stove firebox is 2-3 cubic feet.

"Outdoor boilers are often loaded with large, unseasoned and unsplit logs and trash, unlike stoves. This is a key reason that states regulate outdoor wood boilers and not stoves. Central Boiler advertisements showing efficiencies in the 90s are based on calculations that have been repudiated by the EPA," Ackerly added.

The Utah Department of Environmental Quality (DEQ) said the objections that that Central Boiler and Hearth, Patio and Barbecue Association (HPBA) had with the regulations were “similar” and publicly responded to them. Privately, some people say the positions of Central Boiler and HPBA had key differences but the public record does not reveal what they were.  

According to the Utah DEQ, the issues raised by Central Boiler and HPBA included:

• DEQ appears to place greater weight to various out-of-state agencies and others who are generally skeptical towards the emissions reduction results achieved under the US EPA hydronic heater program.
• DEQ has not provided scientific data or other rationale supporting what types of outdoor wood boilers were allowed under the rule.
• DAQ has not published any data showing that outdoor furnaces currently make impacts within the nonattainment and maintenance areas or that they will contribute to the exceedance of the NAAQS.
• The 1000 ft. setback from schools is not necessary based on modeling conducted by the State of New York.

In response to the first proposed regulations, Central Boiler argued that the “rule lacks scientific support and would unfairly prohibit Utah residents from purchasing and using clean-burning wood furnaces.” A main thrust of Central Boilers argument is that Phase 2 boilers “are cleaner than EPA certified wood stoves.” Specifically they claim that “average emissions for a Phase 2 OHH are 77% less than those from EPA-Certified woodstoves.” The full submission by Central Boiler can be found here.

"These outdoor wood boilers are vastly more efficient than burning anything indoors," Levitt said.

In response to repeated misleading advertising practices, the EPA sent letters to outdoor boiler manufacturers requesting them to desist from certain claims and statements.  

The EPA listed actual efficiencies of Phase 2 outdoor wood boilers at 39 to 78% efficient in 2013 with an average of 63%.  In 2016, after all boilers were required to meet EPA emission and safety regulations, efficiencies rose to an average of 74% and a top rated unit at 82% efficiency. As of November 2017, many units are above 85% efficiency and the highest at 90% efficiency.

Update, 3/13/13: The Alliance for Green Heat is organizing a sign-on letter to the Utah Legislature urging them to not vote for the Senate bill without at least a full hearing. Click here for more details.