Court denies HPBA challenge to wood heater test standards

A panel of three judges in the U.S. Court of Appeals for the D.C. Circuit on Aug. 27 denied a petition for review filed by the Hearth, Patio & Barbecue Association in March 2015 that asked the court to vacate the audit testing provisions of the agency’s 2015 new source performance standards (NSPS) for residential wood heating appliances.

HBPA said it is carefully studying the court’s decision and will later decide what actions to take.

According to the HBPA, the audit testing provisions in the 2015 NSPS failed to account for the known variables in test method results from different labs. The group said the court’s decision “means that the unrealistic audit testing provisions adopted by the [EPA] will continue.”

“This ruling means that the small businesses that make up this industry are threatened by an unfair standard and we are enormously disappointed,” said Jack Goldman, president and CEO of HPBA, noting that the variabilities in test method results from different labs tend to be minor and are generally caused by the expected differences when anyone burns wood.

“The original NSPS in 1988 took these variabilities into account. With this court decision, manufacturers are being held to an unreasonable standard,” Goldman said.

NPBA said the EPA never justified why it departed from its decades-long acknowledgement that it lacks the understanding about these variabilities in wood burning appliances and failed to respond to HPBA’s arguments against the audit provision submitted during the rulemaking’s public comment period.

“This is an industry comprised almost entirely by small businesses and the audit provision is a company killer,” said Goldman. “It would have allowed the EPA to take any product, test it in any lab, and if it fails, could require the manufacturer to recall all the stoves from that model line. Our concern stems entirely from the variability at the lab testing level. There is no guarantee that each piece of wood will burn exactly the same way. Many companies couldn’t even afford the cost to challenge a failed test.”

Additional information is available on the HBPA website.