Five key take-aways from oral arguments in HPBA vs. EPA

The judges hearing this case: Judge
Pillard, Wilkins and Henderson.

Lawyers for HPBA and the EPA faced off today in the litigation in the DC Court of Appeals between HPBA and EPA, which is now focused only on the audit provisions in the 2015 wood heater regulations. Now, it’s a waiting game.

Each side was given 10 minutes, but the judges had so manyquestions for David Chung, the lead attorney for HPBA, that it took nearly 28 minutes before the EPA attorney, Simi Bhat, began. The oral arguments and questions from the judges can be heard here.

All three judges asked tough questions and appeared well-prepared and surprisingly well-versed in the nuances of the issue. They seemed skeptical of some of HPBA arguments at first but it’s far from clear how they may rule in this case. 

Our five key takeaways are:

David Chung, lead attorney
for HPBA

1. HPBA attorney Chung was on top of his game. Chung would have been the MVP player in this competition if this were a contact sport. He held up well against a series of tough questions from the judges and showed the value of an attorney who knows the issues, the technologies and the test methods well.

2. The court could rule against HPBA on a technicality. The judges questioned whether they should dismiss the case outright because HPBA may have forgotten to specify which member manufacturers it was representing, and thus lacked “standing” to bring the case. Judge Wilkins interrupted Chung very early in his presentation on this issue and Judge Pillard brought it up again later in the proceedings.

3. If the court sides with HPBA, it may remand the issue to the EPA.

Simi Bhat, attorney for the EPA

HPBA is asking the court to vacate and completely overturn the current audit provisions. However, if the court agrees with the HPBA arguments, it may be more likely to remand (send back) the rule to EPA instead of vacating it. Then, the EPA would need to undertake a rulemaking consistent with the court's opinion. If the rule is just remanded back to the agency and not vacated, the requirements remain in place until the EPA revises them in some way. If the audit provisions are impacted by the court’s opinion, EPA may need to issue some temporary guidance or a no action letter to address compliance issues in the interim.

4. The court may not rule on the core issues. The core issue is whether the EPA’s audit provisions are “arbitrary and capricious.” In other words, did the EPA provide enough substantiation to potentially revoke a stove model’s certification if it tested above 2 grams an hour in an audit. In essence, HPBA is saying that if EPA had allowed a stove to emit up to 3 grams in an audit test, for example, the EPA’s regulation would be more reasonable. The EPA contends that a margin is already built in and manufactures have various mechanisms available to them if they exceed 2 (or 2.5) grams in an audit. However, there are a range of legal issues that the court could rule on, in favor of one side or another.

5. When will this be resolved? It usually takes about 2-6 months from oral argument for the DC Circuit to issue an opinion. Then there could be another rulemaking, or the audit provisions may remain intact.

The Alliance for Green Heat supports an audit program that focuses on periodic audits of the highest volume wood and pellet heater models and where heaters are not decertified for testing at slightly above the relevant emission standard but only for substantial emissions above the standard.

More about this litigation:

Hearth industry lists grounds for suit against EPA (June 2015)

EPA and States vigorously defend audit provisions (Sept. 2020)

 

New Paper Undermines Stove Industry Variability Study

A new paper written by Woodstock Soapstone, a New Hampshire wood stove manufacturer, calls a key stove industry study misleading and flawed.  The industry study says the inherent variability in wood stove testing suggests that the EPA cannot lower emissions standards below 4.5 grams an hour. 

The EPA posted the 7-page Woodstock Soapstone paper today as part of the official record that the EPA can use to determine the final rule due in February 2015.  It was written by the company’s CEO, Tom Morrissey, and says the industry variability study is “based on a data sample that is small, old and deeply flawed.” 

The late Paul Tiegs from OMNI
 test labs was a  prominent
critic of variability being caused
mainly by fuel.

Morrissey’s paper argues that variability has much more to do with whether a manufacturer is paying for emission certification than inherent variability in the combustion process. “When a manufacturer pays for certification testing, why are the results so much better than at any other time the same stove is tested?” Morrissey asks.  The Alliance for Green Heat believes, as the Morrissey paper also suggests, that test labs have a range of operating procedures allowed by the EPA that can result in variable emission results.  The late test lab icon Paul Tiegs, a founder of Omni test labs, became a champion of tightening testing protocols to achieve consistency in testing, and rejected the notion that variability was mainly caused by solid fuel, as the industry study argues.

If the EPA, states, and air agencies take the Woodstock Soapstone paper seriously, it could unhinge a major industry legal strategy in the fight against stricter air pollution limits.  Many officials in the EPA and state air agencies were already critical or at least skeptical of the industry variability study.  However, there has not been such a detailed critique from inside (or outside) the stove industry before this.

The variability study was produced and written by Rick Curkeet, a hearth products engineer at the Intertek testing lab and Robert Ferguson, a consultant who is now working for HPBA on the proposed EPA regulations.  It was released in October 2010 in anticipation of the proposed EPA regulations and is called the “EPA Wood Heater Test Method Variability Study: Analysis of Uncertainty, Repeatability and Reproducibility.” 

[Update: Rick Curkeet submitted a rebuttal to the Morrissey paper on Sept. 10 and it should be posted in the EPA docket soon. His 7-page rebuttal defends his original study and he concludes that he stands by his "analysis and conclusions."]  

The study showed that there is a very wide range of variability between proficiency testing and certification testing of wood stoves.  HPBA contends that “it is arbitrary for EPA to define ... a value that is lower than the precision range” of the test method.  HPBA says the minimum justifiable emission limit is 4.5 grams an hour, which Washington State adopted in 1995 and has since become a de facto national standard.  The variability study does not say who paid for it but HPBA confirmed that they provided partial funding and extensively vetted early drafts in late summer and early fall of 2010.

While Morrissey’s paper is by far the most direct critique of the variability study, most experts agree that the understanding of variability in wood stove testing can be assessed in many more ways than the data set used by this industry study.  For example, compliance test data could be used.  The EPA requires that all stoves be retested after they produce between 2,500 and 10,000 units.  This data, if it could be obtained from the EPA, would provide possibly a more important data set than the one the industry study chose to use.  Another data set will be from the “K list” changes.  Most stove manufacturers are re-certifying their stoves in advance of the new EPA rules so they will have 5 years before they have to test again.  HPBA has been encouraging its members to recertify stoves with “K list” changes as they are allowed to do by the EPA so that they won’t have to face higher testing costs that include cord wood testing and the uncertainty of a new test method that may be harder to pass.  HPBA had urged the EPA to grandfather all stoves under 4.5 grams an hour until 2020.  In any case, these retests will provide a new and better data set to assess variability.

Even if high variability could be established and confirmed using various approaches and data sets by independent experts, the poor relations between industry and state air agencies and other key players has undermined the ability of the two sides to agree on much.  At a November 2012 meeting in Minneapolis convened by NESCAUM, Greg Green of the EPA left the room and urged the two sides to talk more amongst themselves.  That strategy did not work and very little productive communication occurred for more than a year, a result that is likely not beneficial to the interests of HPBA industry members. 

Greg Green, Alison Simcox and Gil 
Wood of the EPA listening to testimony 
at the Boston hearing on the NSPS.

The hard line approach to critics is what prompted Morrissey to write his rebuttal of the variability study which begins as a defense of test reports of his own stoves that had been called into serious question by HPBA, Rick Curkeet and Roger Purinton at Jotul stoves in formal comments to the EPA.  Ironically, proof that catalytic or non-catallytic wood stoves can be consistently clean has become the biggest threat to the mainstream stove industry that HPBA represents.  This conflict between cleaner catalytic stoves and not-as-clean non-catalytic stoves became very heated and public in an EPA hearing in Boston on February 26, 2014.  But it was preceded by the release of study in 2013 by non-catalytic makers that dismissed the effectiveness of catalytic stoves to reduce wood smoke in real world settings.  If this public rift within HPBA had not happened, the stove industry would likely have made it through the EPA rule making with a much more unified voice. 

According to interviews with non-catalytic stove manufacturers, they felt it was vital for the EPA to understand that very low emission numbers from catalytic stoves in testing labs did not accurately reflect emissions in peoples’ homes as catalysts often clog, are not replaced, and are not properly engaged and used by consumers.  This issue has proved to be key because the EPA proposed emission limits of 1.3 grams an hour in 2020, a number that only a few catalytic stoves can appear to meet.  The company that has produced tests showing it can meet it is Woodstock Soapstone.

The Woodstock Soapstone defense of its test results and critique of the variability study comes at an important time when the EPA is finalizing its new wood heater standards, known as the New Source Performance Standards (NSPS).  It is believed that as of September or October, the EPA staff will have made most of their key decisions to send to Washington for review and approval by senior EPA officials and EPA lawyers.  Attempts between HPBA and air agencies to reach any agreements behind the scenes could still be fruitful, but time is running out.  And even if any agreements could be reached, the EPA may not adopt them.

The regulation and emission limits for outdoor wood boilers are also hotly contested but the testing variability for boilers is not a big issue, nor is it an issue with pellet stoves.  One solution, supported in part by the Alliance for Green Heat, would be to set separate emissions standards for pellet stoves, catalytic stoves and non-catalytic stoves, based on how clean each technology has become.  The argument for separating pellet stoves from cat and non-cat wood stoves may be even stronger because they use a different and very uniform fuel and are burned in a much more controlled combustion setting.  The Catalytic Hearth Caucus, of which Woodstock Soapstone is a member, strongly opposed separate emission limits for cat and non-cat stoves as well.  Ultimately, HPBA did not recommend setting separate emission limits that Jotul and other non-catalytic manufacturers initially appeared to support.  At this point in the process, the EPA may have already decided to set a single emission standard for these very different technologies, as they had proposed.

If senior leadership at EPA sees reliable data that at least one stove can consistently be tested under 1.3 grams an hour, they now have a better legal foundation to stick to their proposed 1.3 gram an hour standard.  And this is the nightmare scenario that HPBA and non-catalytic stove manufacturers fear.

Stove experts like Tom Morrissey, Robert Ferguson and Rick Curkeet are not only savvy about how stoves are tested, they are also skilled number crunchers.  Interpreting stove test data is like any other data set: it can yield very different conclusions based on what data is used, how it is interpreted and what statistical methods are applied.  The EPA in turn has to assess the reliability of each study and they can reasonably expect that their assessments will be challenged in court.

Tom Morrissey, top, 2nd from right and
the team that designed and built the
Ideal Steel for a 2013 competition

The stove that Tom Morrissey says is reliably and consistently less than 1.3 grams an hour was specifically built to win the 2013 Wood Stove Design Challenge, and it did. The Wood Stove Decathlon judged stove on 5 categories: emissions, efficiency, affordability, consumer appeal and innovation.  The Ideal Steel Hybrid is certified by the EPA at 1.0 grams an hour and gets 82% efficiency.  A second place winner, the Cape Cod, was a similar hybrid stove by Travis Industries that is certified at even lower  0.5 grams an hour.  Travis however does not say that they can reliably or consistently test at such low emission numbers, particularly with cord wood.  Woodstock Soapstone says testing shows that their Ideal Steel Hybrid is as clean with cord wood as it is with crib wood.

The Alliance for Green Heat promotes cleaner and more efficient residential wood heating to reduce our reliance on fossil fuels and help families affordably heat their homes.  Founded in 2009, the Alliance is based in Takoma Park, Maryland and is registered as a non-profit, 501c3 educational organization.