Court rejects challenge to test standards for residential wood-burning heaters
- Law firms
- The EPA has clearly explained why the rule measuring emissions has changed
- Industry petitioner says move threatens small businesses
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A panel of the U.S. Circuit Court of Appeals for the DC Circuit dismissed a request from the Hearth, Patio & Barbecue Association (HPBA) that said a 2015 rule allowing initial pollution testing and auditing in different laboratories was arbitrary and capricious under the Clean Air Act (CAA). Complainants said test results can vary widely when changing labs and that the EPA failed to adequately justify its approach, but the panel concluded that the agency had addressed the group’s concerns.
Jack Goldman, managing director of HPBA, said in a statement: “This decision means that the small business (ies) that make up this industry are threatened by an unfair standard and we are extremely disappointed.” The association is represented by lawyers from Crowell & Moring.
An EPA spokesperson referred a request for comment to the Justice Department, which spokesperson Wyn Hornbuckle declined to comment on.
The 2015 rule updates a 1988 rule that requires manufacturers to test a representative heater in private laboratories approved by the EPA for compliance with a particulate matter limit prescribed by the CAA. If the heater is compliant, the manufacturer receives a certificate authorizing its sale.
The update says that audit tests, which are performed at random and the failure of which can result in the suspension of a certification, can now be performed at any of the EPA-accredited laboratories that the agency selects rather than in the only certification laboratory, as was the case previously. .
The 2015 rule was spurred on by lawsuits from New York, other states and green groups claiming the EPA failed in its non-discretionary duty to update the standards.
Wood-burning appliances, like wood-burning stoves, heat hundreds of thousands of American homes in all 11 states, including New York and Alaska, which have filed an amici filing, according to the filing. States supported the EPA.
Heaters emit various air pollutants, including particulate matter, with health effects ranging from shortness of breath to heart problems, according to the ruling.
In a filing, HPBA said a study it commissioned suggested testing for wood stoves, when conducted in different labs, led to crazy variations in the results. The variability would make it “nearly impossible” for manufacturers to build products that would not fail an audit test, the association said.
In Friday’s ruling, U.S. circuit judge Nina Pillard said the 2015 EPA update was anchored in an adequate explanation for rejecting this data.
Pillard was joined by US circuit judges Karen LeCraft Henderson and Robert Wilkins.
The case is Hearth, Patio & Barbecue Assoc v. EPA, et al, US Circuit Court of Appeals for the DC Circuit, No. 15-1056.
For the Hearth, Patio & Barbecue association: David Chung of Crowell & Moring
For the EPA, et al: Simi Bhat with the US Department of Justice