|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 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
Posted by Earth Stove on February 11, 2014 with No Comments
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.