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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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.

Add caption
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.”

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Fireside business lists grounds for lawsuit in opposition to EPA

David Chung is a
direct attorney for HPBA
The US Courtroom of Appeals has consolidated at the very least 3 of the lawsuits in opposition to the EPA’s wooden heater rules collectively into a single lawsuit.&nbsp The Courtroom requested these a few parties, the Fireplace, Patio &amp Barbecue Association (HPBA), the Pellet Fuels Institute and Tulikivi, to file their “statement of issues” with the courtroom.
On June 10, HPBA submitted its record of troubles, although it retained the proper to change them or add to them.&nbsp (PDF hyperlink to HPBA’s courtroom submitting.) This submitting provides the EPA and broader fireplace group a detailed appear into just what HPBA will be tough and what they hope to change in the NSPS. &nbspThe a few major places are:
* The 2020 particulate make a difference emission requirements for wooden heaters, residential hydronic heaters and household pressured-air furnaces are arbitrary, capricious, an abuse of discretion, or or else not in accordance with regulation.
* The “failure to incorporate changes for check method precision” is in the compliance audit tests is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with legislation.
* The ability of the EPA to use test techniques and other provisions that are not produced by means of a consensus normal-producing procedure.
HPBA’s obstacle on stricter emissions standards in 2020 has been broadly predicted, but their challenge on EPA recognition of non-consensus examination techniques implies that industry may be searching for more handle in excess of how indoor and outdoor boilers are accredited by the EPA.&nbsp At concern is the long simmering division amongst domestic outdoor wooden boiler makers and those organizations importing and producing European design boilers.&nbsp
The development of test techniques for stoves and boilers have usually been dominated by the domestic stove and boiler sector via the EPA and/or ASTM.&nbsp The consensus pushed ASTM process is open to anyone who desires to participate, but is dominated by HPBA insiders, specialists and companies. In recent many years, New York Point out bucked that program by funding the advancement of an alternative take a look at method outdoors the ASTM method that “is a key modification of EPA Approach 28 WHH, supposed to give a technique to consider a particular variety of innovative wood heating boilers.&nbsp
The NSPS suggests that boilers licensed by New York Stateor certified underneath the New York’s Renewable Warmth New York (RHNY) system are to be instantly deemed EPA certified to fulfill the Action one emission boundaries.&nbsp If HPBA is productive in its challenge, it is unclear if all of individuals units could drop their certification, giving HPBA member organizations a large edge over companies who participated in the New York software, which are largely non-HPBA users.

HPBA is also demanding the EPA’s “failure” to get take a look at technique imprecision into account.&nbsp&nbsp Rick Curkeet, a single of the crucial figures concerned in the examine that shows extensive screening imprecision, not too long ago described the concern in a public paper.&nbsp
“Unfortunately the EPA has picked to dismiss the reality that the take a look at process does not look to be capable to reliably distinguish emissions overall performance variations of many grams for every hour. Certainly, it will consider some quite excellent luck in addition to substantial good quality screening to receive suitable benefits. A feasible signifies of minimizing this threat is for designers to emphasis R&ampD endeavours on acquiring repeatable final results and not just a minimal variety.”
Tom Morrissey, the proprietor of Woodstock Soapstone Stoves, a non-HPBA member, says Curkeet’s study is riddled with flaws and should not be relied upon by policymakers or regulators.

The U.S. Court docket of Appeals will very likely to soon be finding out equally sides of this argument.&nbsp Several air top quality non-earnings groups have also intervened to help the EPA defend the rule and will probably be arguing that that Action two emission requirements are sensible and achievable, and if everything, are way too lax.

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Air Quality Groups Be a part of Lawsuit more than EPA Stove and Boiler Rules

On April 15, three air quality groups filed a motion to join 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.

Add caption
The most prominent of the 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.
There is still time for HPBA to file a petition for reconsideration with the EPA.  The most likely scenario is that the rule will become law on May 15, 2015 and the HPBA will be focusing on challenging the stricter Step 2 emission standards, which take effect in 2020.  Other parties can still file a suit, or a motion to join this suit, until May 15. 
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.”

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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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