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.

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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.  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 its final list of issues that it intends to litigate.  After that, the EPA responds with its positions on September 26, revealing how it will defend those portions of their 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 EPAby 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

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HPBA Joins Lawsuit Against EPA

In November, 2013 the Hearth, Patio & Barbecue Association (HPBA) joined a lawsuit brought against the EPA arguing that its members have and are suffered economic injury as a result of the EPA’s failure to enact the NSPS in a timely way.

The lawsuit had already been brought by non-profits that are at odds with the HPBA – the American

Lung Association, the Environmental Defense Fund, the Pennsylvania based Clean Air Council and Connecticut based Environment and Human Health Inc.  This lawsuit is is based on the statutory duty of the EPA to conduct a NSPS every 8 years and the parties to the suit gain some control over the timing of the promulgation of the NSPS.

The HPBA complaint, excerpted below, shows how some technology classes, like outdoor wood boilers, saw more benefits in a national standard than having to meet different state standards and the prospect of jurisdictions simply banning devices in the absence of national emission standards.  Currently, outdoor boiler manufacturers who are part of the EPA’s voluntary program have to compete with boiler companies who do not meet any emission standards in most states.

There is widespread uncertainty among stove and boiler manufacturers about the timing of the NSPS and how quickly they will be held to the new standards after those standards are announced in 2015.  HPBA is advocating for extended “sell through” periods so manufacturers, distributors and retailers can sell off stock that does not meet the new standards.  

Excerpts of the HPBA’s Complaint in the matter of
American Lung Association et al and HPBA, Plaintiffs vs. Gina McCarthy, Defendant
17. HPBA’s members have suffered and continue to suffer economic injury as a result of EPA’s failure to timely complete its review and revision of the Subpart AAA standards.
18. EPA’s delay impedes HPBA’s members’ ability to meaningfully plan to assure compliance with revised regulatory requirements, and to do so without incurring additional costs due to the resultant regulatory uncertainty. In particular, woodstove manufacturers as well as manufacturers of other appliances are forced to delay specific planning or investment, or do so at the risk that their efforts may be redone in light of requirements ultimately promulgated under a revised Subpart AAA. As long as EPA continues to delay its revision of Subpart AAA standards, the costs of regulatory uncertainty continue to mount.
19. EPA’s delay also uniquely injures HPBA members in the hydronic heater and masonry heater subsets of the industry as a result of the existing NSPS’s inapplicability to these appliances. These members currently face a patchwork of inconsistent state and local regulatory requirements and, in some cases, product bans as a result of EPA’s failure to timely revise the NSPS so as to incorporate these categories of appliances within Subpart AAA.
20. HPBA’s Hydronic Heater Sub-Section wrote EPA six years ago seeking coverage under the Subpart AAA regulations so as to foster greater uniformity in hydronic heater standards, and to mitigate the costs of participation in separate state and local proceedings. EPA’s continued delay in issuing revised standards including hydronic heaters prevents manufacturers from obtaining resolution of the contentious issues surrounding these appliances and from seeking EPA-certification for their appliances. In the meantime, new state and local standards continue to be issued, including, most recently, proposed emission limits for wood heaters, including hydronic heaters, in Alaska. As a result, EPA’s members in the hydronic heater industry continue to face costs as a result of EPA’s delay.

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