HPBA lawsuit extended again in hopes of renewed talks with EPA

The US Court of Appeals for the DC Circuit agreed to yet another extension to the lawsuit brought by the Hearth Patio & Barbecue Association (HPBA) and the Pellet Fuel Institute (PFI) against portions of the EPA’s 2015 residential wood heater regulations.

HPBA “hopes to be back in talks with the EPA” said Rachel Feinstein, Government Affairs Manager for HPBA. In the motion requesting the extension, HPBA explained that talks between them and HPBA had broken down under the Obama Administration, but after Trump's election, HPBA is again “attempting to discuss with DOJ and EPA whether the agencies are willing to engage in further discussions concerning the Rule.”

The Trump Administration has been re-opening rule making on many regulations, but some observers say it will likely be an uphill battle for the hearth industry because the EPA is already contending with many higher profile rules. In addition, even if the EPA were to agree to review parts of the NSPS, the rule would have to go through the notice and comment process that can take 1 to 3 years, at which point there could be a new President and a new head of the EPA.

The EPA can revise regulations at any point, with or without a pending lawsuit. It can commit to a new rule making process on selected parts of the NSPS, but it cannot necessarily guarantee any particular outcome. In cases of voluntary remand, petitioners can also lose their right to appeal.

If the case goes to court in 2018, the outcome partially depends on which panel of judges get appointed to the case and the result could be more unpredictable and potentially more favorable to the groups that intervened in the suit – the American Lung Association, the Clean Air Council and Environment and Human Health. If the case goes to court, the best outcome for HPBA would likely be a settlement agreement that puts part of the NSPS on hold until another rule making is complete.

HPBA and PFI now have until August 25 to file their brief laying out their grievances with the new regulations. HPBA is not challenging the requirement that when tested with cribwood, wood stoves must emit no more than 2 grams an hour as of 2020. This means that all stove manufacturers remain under this deadline to retest their stoves to achieve 2 grams an hour or less under the revised test method. All stoves that tested at 2 or under prior to May 15, 2015 still have to retest to be compliant with the 2020 limits. 

HPBA is challenging the requirement that if a stove is voluntarily tested with cordwood, it must achieve 2.5 grams per hour or less. HPBA asserts that since there is not yet an approved test method, it was premature for the EPA to set an emission limit. HPBA is also challenging emission limits for wood and pellet boilers and furnaces.

Related posts:

What consumers need to know about the new EPA wood stove rules. (Updated, June 2017)
HPBA gets delay in lawsuit to give Trump administration time to review.  (April 2017)
Paper undermines stove industry variability study. (August 2014)

HPBA gets delay in lawsuit to give Trump Administration time to review

President Trump shaking hands with
his EPA Administrator, Scott Pruitt, a
prominent climate change skeptic.

The Hearth Patio & Barbecue Association (HPBA) moved to delay its lawsuit to allow the Trump administration time to review the settlement proposals that HPBA submitted in 2015 and 2016 and re-evaluate whether some issues can be settled out of court, according to its court filing.  The EPA and the environmental groups who intervened did not oppose the delay. They filed their motion with the US Court of Appeals weeks before they would have had to meet the first filing deadline.

The original suit was consolidated to include challenges from HPBA, the Pellet Fuel Institute (FPI), Tulikivi and Richard Burns and Company. In November 2016, the EPA informed HPBA that it would not continue in settlement talks, but they did reach an amicable settlement with Tulikivi, a masonry heater company that wanted masonry heaters to be a regulated technology under the NSPS. The EPA is seeking additional information with regard to PFI’s lawsuit.

On March 16, 2017, the United States Court of Appeals approved the 90-day delay sought by HPBA and set a new briefing schedule for the parties that plays out through the end of 2017. HPBA must file its brief with the Court on June 26, laying out a final list of issues it intends to litigate. After that, the EPA will respond with its positions on September 26, revealing how it will defend those portions of the regulations.

Less than a month later, the interveners must file their briefs. Interveners include the American Lung Association, Clean Air Council, and the Environment and Human Health, Inc. They are represented by Timothy Ballo of Earthjustice.

HPBA is simultaneously moving a bill in Congress to delay the 2020 provisions of the NSPS by 3 years, which in turn will give the legal proceedings time to play out. Another bill would erase the wood heater NSPS altogether. HPBA does not support this, but some individual boiler and pellet producers support it.

“The Trump Administration is a wild card for all parties in the lawsuit and the Alliance for Green Heat urges all parties to support the core provisions of the NSPS,” said John Ackerly of the Alliance for Green Heat. “For the future of wood heating in the US, we need to protect the transition to cord wood testing and adopt affordable test methods that reflect how consumers use stoves,” Ackerly added.

A blog “Hearth industry lists grounds for lawsuit against EPA” by the Alliance for Green Heat in 2015 laid out more details of the substance and process of the lawsuit. One often overlooked point is that HPBA does not appear to be challenging the 2020 emission standards for wood or pellet stoves, but only for outdoor wood boilers and warm air furnaces.

Petitioners' Brief(s)                               June 26, 2017

Respondent's Brief                                September 26, 2017

Intervenor for Respondent's Brief   October 18, 2017

Petitioners' Reply Brief(s)                  November 8, 2017

Deferred Appendix                               November 15, 2017

Final Briefs                                             November 22, 2017

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.”

What Consumers Need to Know about New EPA Wood Stove Rules

Updated: May 2022

There have been many claims, counter-claims, predictions and fears about the new EPA regulations on wood and pellet heaters.  Here is a summary of the key points in the rule that will impact you, the consumer.

The rule became law on Friday, May 15, 2015 and various provisions go into effect on Jan. 1, 2016, May 15, 2016 and May 15, 2020.  On March 11, 2020 the EPA ruled that no major changes would be made to the rule and that there would not be any retailer "sell-through" period. Scroll to the bottom to see a timeline of implementation. This rule is an NSPS - a New Source Performance Standard  - established by the EPA with input from industry, states, consumers and other stakeholders.

Wood stoves: Most stove consumers will not notice any differences between stoves sold before 2015 and those sold now. As of 2016, stoves must not emit more than 4.5 grams an hour of particulates and after May 15, 2020, 2  or 2.5 grams an hour.  One of the biggest changes is that some of the really cheap, uncertified wood stoves went off the market after Jan. 1, 2016.  Similar, certified stoves that are EPA certified and put out less smoke are still available for $500 - $900.  Consumers will see more hybrid and catalytic models.

Pellet stoves: Consumers will also not notice differences in pellet stoves either but pellet stoves are getting gradually cleaner and more efficient.  As of Jan. 1, 2016 all pellet stoves have to be certified by the EPA.  Many models are also getting more efficient.  In 2020, pellet stoves also have to emit no more than 2 grams an hour. As of Nov.  2020, seventeen models are more than 80% efficient and more than half only emit 1 gram or less of particulate matter. Just because a stove is higher efficiency does not mean its more durable.

Prices: Prices are expected to rise modestly. As of November 2020, tariffs on steel were the biggest driving factor, not EPA regulations.  In 2018, we analyzed 77 popular models and found a 3-4% price rise since May 2015, but that may be due to a host of factors, and not necessarily impact of regulations. In the longer term some manufacturers say their stove prices may go up $75 - $400 by 2020.  

Retail “sell-through” period: Retailers had until Dec. 31, 2015 to sell existing stock, after the law went into effect on May 15, 2015.  There is not a similar sell-through provision in 2020 and all stoves that are not 2020 compliant need to be sold by May 15.  

Existing and second hand stoves: Existing stoves are not impacted by these rules, nor is the vibrant second hand market for wood stoves. States can regulate existing and uncertified stoves and two states - Washington and Oregon - do not allow anyone to sell or install an uncertified stove off the second hand market.  All states allow consumers to purchase and install second hand EPA certified stoves. (How to buy a second-hand EPA certified stove.)

Corn, coal and multi-fuel stoves: Corn and coal only stoves are not covered by EPA rules and can continue to be sold without any government emission regulation, so long as they don't advertise that they can also use wood or pellets. To advertise a multi-fuel stove that can use pellets and corn, the stove has to be certified for pellets and also tested with corn.  There is no threshold for emissions with corn, but the stove has to also be tested with corn and that data must be submitted to the EPA.  (More on corn stoves and coal stoves.)

Misleading advertising: Some manufacturers post unverified and exaggerated efficiency claims on their brochures and websites but this is gradually improving.  The new rules specify how stove efficiency is to be tested and reported to the EPA, and now all models have verified efficiencies on the list of EPA certified stoves. To date, neither the EPA nor state agencies have cracked down on exaggerated and misleading efficiency claims in advertisements.  As of 2021, consumers can rely on most certificates issued by manufactures about whether a stove model qualifies for the 26% federal tax credit.

Efficiency: There is no minimum efficiency standard, but the new rule requires efficiency testing and reporting.  Prior to 2015, manufacturers were allowed to keep their efficiencies confidential and most did not disclose them.  The average wood and pellet stove was about 70% efficient, but has been going up.  The median pellet stove efficiency is steadily climbing and is now about 74%, with some in the mid and high 80s.

New hangtags: The EPA has been issuing special, voluntary hang tags for those stoves and boilers that already meet the stricter Step 2 standards (2 grams and hour), disclose their actual efficiency and/or that have been designed and tested with cord wood. This will help consumers more easily identify the cleaner stoves and those that are designed to be used with cordwood - the same type of fuel that consumers use.  (Update: as of summer of 2017, a technical testing problem led to a temporary recall of these hang tags.) As of May 2020, only stoves tested and certified with cord wood will be allowed to use the hang-tag.

Carbon monoxide (CO): The new rules do not limit the amount of CO that can be emitted but require that it be tested and reported. There is a much wider range of CO than there is PM, with many pellet stoves under .05 grams per minute, and many non-catalytic wood stoves higher than 1.0 grams per minute, a 20-fold difference.

Stoves tested with cordwood: The rules set up an alternative, voluntary compliance option for Step 2 emission levels as of 2020 of 2.5 grams an hour for stoves tested with the ASTM cord wood

method.  There was a hope that these stoves would burn cleaner in hands of consumers, but that has not turned out to be the case. Generally, the cord wood test is a bit easier and manufacturers prefer to use it and tend to get cleaner PM numbers in the lab. No matter how the stove was tested in the lab, it is essential to use dry wood and give the stove enough air to get good performance and minimize health issues from wood smoke.

Pellet fuel: All new pellet stoves must be tested and warrantied to use with pellets that are certified by a third party entity - either the Pellet Fuels Institute (PFI), ENplus or CANplus. Consumers will likely see more and more pellets certified by one of those entities, which means they meet certain quality and consistency standards. As of 2020, 34 pellet plants make PFI certified pellets.  AGH urges consumers to purchase third party certified fuel, which in the U.S. means PFI certified.

Export stoves: US manufacturers can continue to make and sell their existing stoves that do not meet the new EPA standards in other countries.  Uncertified stoves with no emission controls or testing can be sold in most of the world.  US stove companies are also increasingly exporting to countries that have emission standards, like Japan, Korea, Australia and New Zealand. These stoves have to be labeled as an “export stove. May not be sold or operated within the United States.” 

Masonry Heaters: The EPA did not set emission standards for masonry heaters in this rule, but asked the Masonry Heater Association to further develop a testing standard so that they could be included in the next NSPS, which should be in 2023.

Fireplaces: The new rules do not apply to fireplaces, but there is a voluntary method for cleaner fireplaces to be tested and qualified by the EPA.  This rule does not refer to the voluntary program, which may mean there is little interest in including fireplaces in the next NSPS.

Owners manuals: All owners manuals should be updated as of May 15, 2015. Updated manuals will have more detail and must instruct operators how to get optimal performance from the stove or boiler.

Litigation: The largest stove and boiler industry association, the HPBA filed suit over the 2020 emission standards for boilers and the case was delayed many times.  Air quality groups are joining that suit to defend it from being weakened or delayed.  In August of 2021 the Federal Appeals Court ruled in favor of EPA, and dismissed industry's challenge.

Role of states: Several states have passed resolutions barring state agencies from enforcing this NSPS but the rule clearly states that it does “not impose any requirements on state and local governments.”   To date, Missouri, Michigan and Virginia have passed laws barring state enforcement, largely a symbolic gesture. A number of other states, including New Hamphsire and Vermont have formally taken delegation of NSPS provisions to achieve cleaner air in their states and protect consumers.

Boilers & Furnaces

Boilers: Like stoves, boilers must meet Step 1 emission limits by May 15.  Retailers could still sell older, uncertified and unqualified boilers through Dec. 31, 2015.  In 2020, they must meet stricter emission limits.  EPA regulations have led to far more efficient boilers, with many now topping 80% but the regulations have hit the boiler and furnace industry harder than the stove industry.  Only 29 of the more than 100 boiler and furnace models are now 2020 compliant.

Warm air furnaces: Furnaces that heat air, instead of water, got a reprieve from the EPA after intensive advocacy by industry and pressure from Congress.  Small ones have to meet Step 1 emission standards by May 15, 2016 and large ones not until May 15, 2017. Only 3 furnace models are now 2020 compliant.

Loophole for unregulated outdoor boilers: Manufacturers of unregulated outdoor wood boilers can continue to make and sell these units for "commercial" applications.  However, one outdoor boiler company has already indicated that as long as the customer assures the dealer that the unit will be used for commercial purposes, its up to the consumer to use it as they please.

Boiler and furnace prices: Unlike stoves, options for consumers will change more, since the boiler furnace industry had not been regulated and many low-cost, low-efficiency units were on the market.  Prices - and efficiencies- are likely to rise significantly but operating costs will be significantly lower.

Moisture meters: Conventional uncertified forced air furnaces and then certified ones must come with a free moisture meter.  (Some advocates had urged all stoves to come with moisture meters.)

Comments? If you think we have omitted important information in the NSPS for consumers, please let us know at  info@forgreenheat.org.

For more info:

• The EPA's BurnWise website
• Position of the main industry association, the HPBA
• EPA Rules Begin Cleaner Chapter for Wood Heating
• Air Quality Groups Intervene in Industry Lawsuit Against EPA
• Talks Yield Some Consensus Between Industry, Enviro Groups
• Independent Stove Manufacture Challenges Stove Industry Positions on NSPS