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Hearth Regulations:
New Year, Old Problems

It may be a new year, but the hearth industry continues to face familiar and massive challenges from government regulatory agencies. Despite the Hearth, Patio & Barbecue Association’s February, 2013, legal victory over the U.S. Department of Energy (DOE), that agency is now striving to regulate all gas hearth products and possibly grills.

One of the hearth industry’s oldest adversaries, the U.S. Environmental Protection Agency (EPA) is in the process of updating its New Source Performance Standards (NSPS) by seeking to regulate wood- and pellet-burning hearth appliances. The time of completion, however, continues to be uncertain.

New to the mix of industry challenges is a proposal in Utah to outright ban the burning of wood stoves, inserts and fireplaces during the winter months in that state’s heavily populated western counties, an action that if successful could spur similar bans in other states.

The DOE – Again
The good news about the DOE’s efforts to regulate gas hearth products is that it has, for the time being, apparently abandoned its efforts to require minimum efficiency standards. The bad news is that the DOE is seeking to regulate all gas hearth appliances, anything with an exposed gas flame, including vented, vent-free, gas logs and outdoor products such as patio heaters and possibly grills.

“We don’t think it is DOE’s intention, but the agency’s Proposed Coverage Determination is so broad as to potentially include grills,” says Ryan Carroll, HPBA’s director of Government Affairs.

The other bad news is that the DOE seemingly is seeking to ban all standing pilot lights. “What DOE is proposing sounds like requiring no gas use at all if the main burner is not lit,” adds Carroll. “But the DOE is not looking at proper and necessary considerations for non-regulatory measures that might accomplish the same gas savings.”

The HPBA will meet with manufacturers in the Gas Hearth Appliance Section to look at voluntary measures the industry can put in place to lessen gas consumption during the non-heating season, such as perhaps a timed pilot that would shut off after a period of burner inactivity.

The HPBA also hopes to enlist environmental groups with these gas-savings efforts that could go into effect even sooner than the DOE’s final rule. “We’re hoping that if we can work collaboratively with environmental groups on this,” says Carroll, “we could put forth to the DOE a consensus position that would benefit all sides. If we can give environmental groups some of the reduction in gas consumption that they are hoping for, it could result in the most favorable outcome for our membership in terms of limiting the regulatory burden on those products.”

Of major concern to the HPBA is the DOE’s apparent lack of transparency in its efforts. The HPBA submitted comments on the DOE’s Dec. 31, 2013, Proposed Coverage Determination but has seen no action on those comments. The HPBA has met with the Office of Information and Regulatory Affairs (OIRA) and the Small Business Administration (SBA), both of which have seen the DOE’s unpublished proposed rules, to complain that the DOE has done nothing to engage the industry on its proposal.

Two Executive Orders from the current Administration require agencies to get input from affected industries. “But the DOE has gone out of its way not to do that,” says Carroll. “They have declined all requests to meet.” Carroll points out, however, that these executive orders are “more instructive than compulsory. It’s something they should be doing but it’s not mandated that they do so.”

The HPBA is still not sure when the DOE ruling will be published in the “Federal Register.”

“It could be any time,” Carroll says, “but it’s likely to be this January or February. This proposal for hearth products is completely discretionary. There is no court-ordered deadline and no statutory deadline by which the DOE is compelled to act.”

Once the DOE’s proposed regulations are published in the “Federal Register,” there will be a public comment period. Upon the effective date of the final rule, there will be a five-year period before manufacturers would be required to implement the new regulations.

The NSPS – Finally?
Frustration is the main industry sentiment regarding the NSPS, the EPA’s proposed regulations for wood- and pellet-burning hearth products. The proposed rule was published Feb. 3, 2014, and in mid-November, 2014, a letter from 23 U.S. Senators and 14 members of the U.S. House of Representatives was sent to Gina McCarthy, administrator of the EPA, expressing concerns over new key provisions in that proposed rule, especially those affecting wood and pellet furnaces. But the HPBA has had no response from the EPA.

“We’ve only heard hints and rumors of what may or may not be in the NSPS,” says John Crouch, HPBA’s director of Public Affairs. “The EPA has not been able to talk with us for months. It’s frustrating.”

Other key issues regarding the revised NSPS, brought up in its 160 pages of comments, include the cost effectiveness of the proposed rule, the test methods to be used for product certification, grandfathering of previously-certified models and the retailers’ abilities to sell-through older models.

The EPA claims McCarthy will sign the final rule on Feb. 3, 2015, but the HPBA questions how it can take place at that time. “The U.S. Office of Management and Budget is supposed to have 90 days to review a rule and then provide the agency with questions, concerns and comments, after which the agency may change a rule or at least respond to the comments before those agency rules are published and finalized,” says Crouch. “We’re still getting appointments for meetings with the OMB, so we don’t see how the rule can be signed by February 3.”

The rule cannot go into effect until 60 days after its official publication in the “Federal Register” and is signed by the EPA administrator. The HPBA had been expecting the final rule to go into effect in mid-May, 2015, but that timing probably will be delayed. When the NSPS is finalized, implementation will be different for different product categories. But wood and pellet stoves and inserts are expected to be compliant with the proposed Step 1 of the rule “as quickly as possible after publication,” said Gil Wood, the EPA’s staff lead for the NSPS, in February, 2011.

Utah Proposes Wood-Burning Ban
The governor of Utah in December proposed to the Utah Air Quality Commission a ban on all wood burning from November to mid-March in the seven most heavily populated counties of western Utah. The ban would include the Salt Lake City metro area, Provo and Ogden. If the ban goes into effect, it will be effective November, 2015. Locations above 7,000 feet could be exempt from the rule, as well as restaurants and registered homeowners who rely solely on wood for heat.

Public hearings on the proposed ban are being held throughout January with comments being accepted until February 9. The HPBA and the Rocky Mountain HPBA affiliate are pulling out all the stops to halt the proposed ban.

“We’re working hard to get people who have EPA-certified wood stoves and pellet stoves to turn out to these meetings and make their concerns known,” says the HPBA’s John Crouch. “And we are preparing to discuss the issue with the Utah state legislators.”

At least two public petitions are being circulated in opposition to the proposed ban. One petition claims that “wood-burning only contributes to about four percent (of the poor air quality), according to the DEQ.” The HPBA has hired a national public relations firm to manage the local messaging and has set up a Facebook page and informational website on the proposed ban.

One petition sums it up: “This is not just a seven-county issue, but a state issue. The ban would have to start somewhere, but where it ends is anyone’s guess.”

“This is going to be a very active 2015,” concludes the HPBA’s Ryan Carroll.

By Bill Sendelback

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