Citizen Comments on EPA’s Stove Regulations Trending Favorably

We are now past the half way mark during the 90-day comment period and, as expected, almost all the comments posted so far are by citizen stakeholders.  Typically, the companies, governmental agencies, and non-profits who have the most expertise wait until the last week, or the last day to file their comments.

 Citizen stakeholder comments can be very interesting in that they can reflect the general mood of the population.  As of Friday, March 28, 571 people had left comments.  The majority of people appear to favor the regulations, with 305 making positive comments and 202 making negative ones.  Among those supporting the regulations, many simply refer to excessive smoke in their neighborhoods and do not specifically mention the regulations.  Likewise, many people who appear to oppose the regulations refer to their right to heat their home with wood and the dangers of government overstepping its mandate, but do not specifically mention the regulations.

The public comment forum gives the submitter the option of posting their name or organization they are representing or they can choose to submit an anonymous opinion. The great majority of those leaving comments did so anonymously. Anonymous comments on both sides of the debate tended to be short, opinionated and casual.

Among the anonymous comments for the regulations two themes were clearly present. They pointed out the unfairness of wood burners negatively affecting neighborhoods air quality and their health.  Secondly, many explained that wood stove appliances that create so much smoke and particulate matter may be reasonable in rural areas but unjust and unnecessary in urban areas.

Among the anonymous comments against the new regulations, the two leading topics were people asserting their right to heat their homes with wood heat and that the government is unlawfully encroaching into their homes. The second most common argument was the claim that without wood heat, their families would freeze in the winter and during power outages since other forms of heating were out of financial reach.

Among the longer, more informed comments are copies of many of the testimonies from the Boston public heating on the regulations on February 26.  Many of these come from the most important industry and no-profit players who will also be filing comments during the last day or week.  These comments, linked below, tend be overarching themes and do not contain specific recommendations about details of the proposal. 

Nancy L. Seidman, Assistant Commisioner, Massachusetts Department of Environmental Protection, behalf of the National Association of Clean Air Agencies (NACAA)

Jeffrey Seyler, Chief Executive Officer, American Lung Association of the Northeast

Clarie B.W. Miller, Massachusetts State Director, Toxics Action Center Campaigns

Owen Liu, Environmental Defense Fund (EDF)

Jack Goldman, President and Chief Executive Officer, Hearth, Patio & Barbecue Association (HPBA)

Brandon Barry, Director of Engineering Product Research and Testing Division, United States Stove Company

Tim Remole, State Representative, District 6th, Missouri House of Representatives 

Scott Nichols, President, Tarm USA, Inc.

Bret Watson, President of Jotul North America,

Nancy Alderman, Executive Director of Environment & Human Health, Inc (EHHI)

The proposed NSPS is still in the public comment period until May 5^th, 2014 when final comments are due, at regulations.gov.

4 Myths About the EPA’s Proposed Wood Stove Regulations

In the weeks since the EPA unveiled their new regulations on residential wood heaters, many myths are starting to circulate in the right-wing media about what they mean.  It’s sometimes hard to tell if the authors are intentionally spreading misleading information about the regulations, or they simply haven’t done enough research to know that they are spreading rumors.  Probably some of both. 

Next week we will be taking a look at the language used by some environmental activists who want much broader bans on wood heating.  And sometimes it’s hard to tell who is on the right and who is on the left.  One off-grid newsletter was touting the benefits of unpasteurized milk, organic vegetable gardens – and the evils of the EPA who cozy up to big business and threaten our freedom to live healthy lives.

After reading quite a few of the articles decrying the wood stove regulations, it’s clear that they are feeding off one another and often quoting one another.  Many of the articles are from small fringe groups and websites, but some are from mainstream ones like Forbes and from ideologues at think tanks like the Heartland Institute. Here are some of the most common myths in the making:

1.     The “EPA Banned 80% of Wood Stoves” Myth: “Only weeks after the EPA effectively banned 80 percent of the wood-burning stoves money-saving Americans use to heat their homes, the attorneys general of seven states are suing to force the agency to crack down on wood-burning water heaters.”  That the EPA is banning 80% of stoves has appeared in numerous headlines, and refers to the estimate that 80% of stoves currently on the market do not meet the new standards that will come into play 5 to 8 years from now.  True, the EPA will “ban” the production of those models 5 to 8 years from now, but those articles often do not clarify that existing stoves are not affected and are grandfathered.  This writer also confused the timeline and nature of the EPA’s proposed regulations and the lawsuit.

2.     The “Replacement Isn’t Allowed” Myth: “Older stoves that don’t [meet new standards] cannot be traded in for updated types, but instead must be rendered inoperable, destroyed, or recycled as scrap metal.”   Another article simplified this by saying “trading in an old stove for a newer stove isn’t allowed.”  This nugget of misinformation started by quoting language about trade-out programs and then got applied to the new EPA stove regulations. 

3.     

      The “Sue and Settle” Myth: This is but another example of EPA ... working with activist environmental groups to sue and settle on claims that afford leverage to enact new regulations which they [EPA] lack statutory authority to otherwise accomplish.”  “With a wink, wink, the Federal agencies encourage outside groups to file suit against some perceived flaw in the way we live.” “Such lawsuits ... are nothing but an opportunity for the courts to take power and authority from the legislative and executive branches of the government since the courts supervise the settlements. It’s a way the courts can become another legislature.”  “This collusive lawsuit is intended to expand EPA authority to stop burning wood.”

Part of this is sheer myth and part is a skewed analysis of what is going on.  First of all, the EPA has statutory authority already given to it by the US Congress in the Clean Air Act of 1970 (under Richard Nixon) that was updated in 1990 (under George H.W. Bush).  The agency does not need to expand its powers and, for example, has the authority to regulate fireplaces but is choosing not to use that power.  Second, the lawsuit filed by 7 states and another by 5 environmental groups has nothing to do with the merits of the regulation, but only to force the EPA to issue regulations and not keep delaying them.  (The industry trade group, the HPBA, is also now a party to that suit.)  True, the states and groups suing are ones that want much stricter regulations; however, their influence on the regulations preceded their lawsuit and happened during 2012–2013 when they realized that the EPA was going to propose far less strict regulations. It was believed by many that the EPA had become too close to industry and too dependent on industry expertise and data during a time that the EPA didn’t have enough of their own resources to do necessary testing and research. 

4.     The “EPA Will Force People to Buy New Stoves” Myth: “Low- and middle-class families living primarily in rural areas may be forced to spend thousands of dollars to switch to newer units or use more expensive forms of energy in order to stay warm.”  No matter how often the EPA says that existing units are grandfathered and not impacted, this myth was going to gain traction.  There may be some local areas that pass “sunset” laws, like in Tacoma-Pierce County, Washington, where use of old, uncertified stoves will not be allowed as of Jan. 1, 2015.  But low-income families are often exempted, or provided funding to trade up.  Most people assume that this will add some cost to most new stoves (estimates range between $100 and $1,000) and that low-income families will be even more likely to buy and install an old, uncertified stove rather than buying a new one.  This is a legitimate issue and will undoubtedly get lots of public attention over the next year.

The EPA expects to issue final regulations in 2015.  Watch for a new round of myths to arise then.

For a sample of one of the more mainstream mythmaking articles, click here.

Explanation of the OMB Review of the NSPS

Explanation of the Office of Management and Budget Process for the Wood Heater New Source Performance Standard

Prepared for the Alliance for Green Heat by the law firm Van Ness Feldman, LLP

Introduction

            On July 26, 2013 the U.S. Office of Management and Budget (OMB) received for review the Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced-Air Furnaces, and New Residential Masonry Heaters (hereinafter referred to as the “Wood Heater NSPS”).  The following discussion explains the role of OMB in the rulemaking process and notes some specific information about the Wood Heater NSPS page on OMB’s website, which can be found here: http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201304&RIN=2060-AP93.

Background on the OMB Process

            The particular section of OMB that reviews significant draft regulations is called the Office of Information and Regulatory Affairs (OIRA).  OIRA reviews rulemakings to determine whether EPA has considered various alternatives as well as to ensure coordination between federal agencies to avoid inconsistent, incompatible, or duplicative policies.  OIRA reviews approximately 500-700 rules a year.  OIRA can “return” a rule to the drafting agency for further review if it finds that the proposal is deficient.  Often such a process occurs when an agency has not sufficiently examined alternatives in the proposed rule.  OIRA also can suggest that changes be made to a rule before it is released in final form.

            The process of regulatory review is designed to help improve the rulemaking process and create coherent policies across all the agencies of government.  The OMB website notes, “Regulatory analysis is a tool regulatory agencies use to anticipate and evaluate the likely consequences of rules.  It provides a formal way of organizing the evidence on the key effects – good and bad – of the various alternatives that should be considered in developing regulations.  The motivation is to:  (1) learn if the benefits of an action are likely to justify the costs, or (2) discover which of various possible alternatives would be the most cost-effective.”  http://www.whitehouse.gov/omb/OIRA_QsandAs/.

            OMB is required to review a rule within 90 days, but there is no minimum period for review.  The head of the rulemaking agency may extend the review period.  In addition, the Director of OMB also has the ability to extend the review, but not by more than 30 days.  http://www.whitehouse.gov/omb/OIRA_QsandAs/.  In practice, however, OMB sometimes takes far longer than 90 days to review a rule, and in rare cases rules can stay at OMB for years.  If the Executive Branch does not want to finalize a rule, it can instead leave it marooned at OMB.  Thus, it is best to think of 90 days as a general rule of thumb from which OMB sometimes deviates, although legally they are required to act within the 90 day review period unless an extension is received.

Information on Wood Heater NSPS Process

            As noted earlier, the Wood Heater NSPS was received by OMB for review on July 26th.  In addition to the general process explained above, there is some specific information about the Wood Heater NSPS that is helpful to understand when consulting the page on the OMB website which tracks rules. 

            First, note that “NPRM” stands for “Notice of Proposed Rulemaking.”  The date for the NPRM listed on the OMB page is September 2013.  This is the aspirational date for EPA to release the proposed rule after OMB review.  There is no settlement agreement pursuant to which EPA is required to release the Wood Heater NSPS by a particular date.  Given that the rule went to OMB in late July, it is possible that the deadline will slip and the rule will not be released until late October or November if OMB takes the whole 90 day period to review the rule.  

            EPA’s website lists the publication date for the Notice of Proposed Rulemaking in November, not September.  http://yosemite.epa.gov/opei/rulegate.nsf/byRIN/2060-AP93.  It is likely that it will take several weeks after the release of the pre-publication version of the rule before it can be published in the Federal Register.  Therefore, if the pre-publication version is released in late September, in may not be published in the Federal Register until November 2013.  Publication will set the time frame for public comment.

            The date listed for the final rule, November 2014, is similarly a statement of when EPA would like to release the final rule, which includes time for responding to comments received on the proposed rule.  Again, because there is no litigation over EPA’s delayed timing for this rulemaking, this date also is aspirational.  While EPA’s listed date means that the Agency has every intention of hitting this marker, it does not always happen.  It is not possible to say precisely how easy it is to push back the date, other than to note that there are no litigants or a presiding court with which to negotiate, and thus there is much about the timing that is within the Agency’s discretion.  It is important to point out that the Agency could always be sued for delay in issuing its revised NSPS, and if the litigants prevail, a more truncated schedule for the rulemaking may be set by a settlement agreement.

            In addition to the dates for the proposed and final rules, some of the terms listed on the OMB page are helpful to understand.  First, it states that “the statutory final rule deadline is not driving the schedule for this action” and lists “2/26/1996” as the date for the statutory deadline.  This is because under the Clean Air Act, EPA is required to update the NSPS every eight years.  The last time the Wood Heater NSPS was amended was 1988.  Thus, technically, the standards were required to be reviewed in 1996, which means the Agency has fallen woefully behind its schedule for updating the rule.  Consequently, the page correctly notes that the statutory deadline is not “driving the schedule” for this action.

            The page also has a notation that states “small entities affected: businesses.”  The listing in this document is not a conclusion, but just a required statement.  As the EPA’s website explains, “EPA notifies the public when a rulemaking is likely to 1) have any adverse economic impact on small entities even though a Regulatory Flexibility Analysis may not be required and/or 2) have significant adverse economic impacts on a substantial number of small entities.  http://yosemite.epa.gov/opei/rulegate.nsf/byRIN/2060-AP93#2.  Thus, this listing puts the pubic on notice that small businesses may be impacted by this rulemaking proceeding and that the appropriate small business analyses will be conducted.

            Further, the page includes the notations “priority: economically significant” and “unfunded mandates: no.”  Like the small entities notation, these are both required to be disclosed to the public. A rule is economically significant if it has potential economic impact of $100 million or more per year, or could “adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” http://www.reginfo.gov/public/jsp/Utilities/faq.jsp.  Economically significant rules require a more extensive review of the costs and benefits.  The notation that there are no unfunded mandates denotes that the rule does not impose large burdens on state, local, or tribal entities without providing the resources to carry out those responsibilities.

Substantive Description of the Wood Heater NSPS

            In addition to the items above, the OMB page includes a description of what is to be included in the rulemaking.  First, it should be noted that this description holds no legal weight and is just an attempt to summarize what will be in the rule.  Specific terms include:

·      That the rule will “reflect significant advancements in wood heater technologies and design;”

·      “This rule is expected to require manufacturers to redesign wood heaters to be cleaner and lower emitting;” and

·      “[S]treamline the process for testing new model lines by allowing the use of International Standards Organization (ISO)-accredited laboratories and certifying bodies, which will expand the number of facilities that can be used for testing and certification of new model lines.”

            Each of these terms explains what is expected to be in the rule; however, this summary is purely descriptive and is not binding on the Agency.  The description simply represents what EPA was willing to put forth as a summary of the rule’s contents.  The text listed on the OMB site is the same as the abstract found on EPA’s website regarding the proposed rulemaking.   http://yosemite.epa.gov/opei/rulegate.nsf/byRIN/2060-AP93#2.  The description is meant to inform the public about the possible changes in the current NSPS, but EPA’s website includes a disclaimer which notes, “The information on this site is not intended to and does not commit EPA to specific conclusions or actions.  For example, after further analysis, EPA may decide the effects of a rule would be different or it may decide to terminate a rulemaking.” http://yosemite.epa.gov/opei/rulegate.nsf/byRIN/2060-AP93#2.

                                   

* * *  *  *

Prepared for the Alliance for Green Heat by Van Ness Feldman, LLP

EPA Changes Strategy Again; Will Now Phase in Stricter Standards for Biomass Stoves and Boilers

Alliance for Green Heat, April 1, 2013 - The EPA released information about the New Source Performance Standards (NSPS) this month after making many changes to accommodate state demands for cleaner stoves and boilers. The new draft NSPS will do little to make most wood and pellet stoves cleaner until 2017 or 2019 but will have immediate impact on biomass boilers. All classes of heaters will have to meet stricter “best systems” emissions standards in 2017 or 2019, depending on whether EPA uses a two or three-step approach.

The draft NSPS appears to treat all biomass stoves, pellet or wood, catalytic or non-catalytic, the same and require that they emit no more than 4.5 grams of fine particulate emissions (PM2.5) per hour, a standard that has been in place in Washington State since 1995. The average pellet stove today emits about 2 grams per hour, already less than half of the proposed standards.

Hydronic heaters, commonly known as outdoor wood boilers, would also be held to existing standards that were developed about 5 years ago. However, the new NSPS would regulate sales and installations of these appliances across the entire country, instead of just the approximately 10 states that have adopted the voluntary EPA standard. 

While the new NSPS may reflect the status quo in many states in the near future, it could become far stricter for both stoves and boilers. In 2019, the test method for measuring stove emissions could change, for example, from averaging four burn rates to using only the highest or lowest burn rate (depending on which one the stove has the hardest time passing). Some in the industry think this standard will be a death-blow for stove manufacturers. Other experts say it will be achievable, but the stoves that will be made may not be as appealing to consumers.

The written document EPA released this month did not contain any numerical limits that industry would have to meet in the future, but Gil Wood, EPA’s lead official on this NSPS verbally shared numbers with roomful of stove and boiler manufacturers who had gathered in Orlando Florida for the annual HBPA Expo. The Alliance for Green Heat requested a copy to make available to the public, which the EPA provided.

The EPA has backed off of creating a required minimum efficiency standard, which all other HVAC technology has, in favor of testing and publicly reporting efficiency to the consumer. The industry position is that reporting efficiency is sufficient and enables the consumer to decide if they want the equivalent of a gas guzzler or a gas miser as their home heating appliance.

There is much speculation about how the new EPA Administrator, Gina McCarthy, will impact the NSPS.  Administrator McCarthy had been head of the air quality division at EPA and has a good working knowledge of solid fuel appliances. And, McCarthy has already reportedly asked tough questions about why fireplaces are not covered in this NSPS. 

Many in industry are simply tired of an agency that appears to keep changing its mind about how strictly wood heating appliances should be regulated. As of last fall, EPA appeared to have something close to a final draft of the new NSPS that was more acceptable to industry but considered far too weak by many states. 

States now appear to have strengthened their hand. By adopting a stepped approach, the new NSPS may do little to make stoves or boilers any cleaner before 2019 in the Northeast and Northwest, where states have already adopted standards that are as strict as or even stricter than what the EPA is proposing. 

The most immediate impact upon promulgation, which could be in 2014, is that unregulated outdoor wood boilers would go off the market in all states. But there is a growing movement that feels even Test Method 28 WHH and standards for EPA qualified outdoor boilers still are deeply flawed, even after Method 28 OHH was improved to Method 28 WHH. It is still unclear how boilers will be tested for 2014 compliance and how existing voluntary tests will be validated. 

Brookhaven National Laboratory recently completed a study that resulted in a new test method being created for both outdoor wood boilers and indoor boilers that have partial thermal storage. Funded mainly by NYSERDA with some support from EPA, this method draws upon the ASTM method and Method 28 WHH. It can be used instead of Method 28 WHH for any boiler with partial thermal storage. New York State has already accepted the test method which will help open up the state up to European and American boilers with thermal storage. 

The Brookhaven Method is also similar to the ASTM Method 2618 and could replace that method as well, but has it has not yet been introduced into the ASTM process. The test method is more stringent than Method 28 and the European EN 303-5 but it may be a quicker and cheaper test for manufacturers to undertake.  It is still unclear if the Brookhaven method could be part of this NSPS or not. That will likely depend on how much the states push for it and whether industry pushes back. 

The EPA’s latest timetable suggests it will have a final draft of the new NSPS ready for internal review in April and the agency will publish the standard in the Federal Register this summer. Industry, states, non-profits and the public will then have 90 days within which to submit comments. The final rule would be promulgated and go into effect in the summer of 2014.

 

The EPA has yet to meet any of their timetables for this NSPS. There is always the chance that someone will sue the EPA simply to get a court-ordered timetable that it would have to adhere to. And, lawsuits based on substantive regulations are also possible, if not likely, from a variety of fronts, if acceptable compromises cannot be reached.