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What is Happening with the PFI’s Lawsuit Against the EPA?

If you remember back to February 2015, the U.S. Environmental Protection Agency (EPA) issued controversial New Source Performance Standards (NSPS) under authority of the Clean Air Act that further regulated New Residential Wood Heaters and, for the first time, regulated Wood Pellet Fuels.  The goal behind these new standards was to reduce the emissions from new wood burning appliances; standards for wood burning appliances were last updated by EPA in 1988.

The EPA promulgated these standards after input from the wood appliance manufacturers (HPBA) and pellet fuel manufacturers (PFI), but did not adopt all the provisions suggested by either body.  EPA also added language to wood pellet regulations that had not been previously disclosed in their proposed rule.  After reading the details of these new standards, both HPBA and the PFI, hired legal representation in order to file a petition to protect our right to contest the new provisions in court.  We also requested that EPA take action to revise the new rules. Our challenge to the regulations was essentially two-fold; we did not believe that the EPA had the statutory authority to regulate pellet fuel; and parts of the final regulations contained flaws and inaccuracies and needed, at minimum, to be corrected/clarified.

We filled our “petition for review” after learning from our attorneys that if we did not file, we would lose our chance to challenge the regulations in the future.  At the same time, we sought to have a continued conversation with EPA about making changes to the final rules.

In the simplest terms, this 2015 ruling required that all new wood burning appliances be certified, and that that all wood pellets burned in these new appliances be certified by a 3rd party testing program: PFI Standards, ENPlus, or CANPlus.  It also specified that operators of certified wood heaters and forced-air furnaces must use pellet fuel meeting standards already covered in these certification programs (length, diameter, density, moisture, etc.) as well as additional requirements and prohibitions not contained in certification programs.

For 18 months, there was consistent communication between the DOJ (the Department of Justice who represents the EPA) and the PFI concerning the litigation, but no progress was made.   PFI also explored options to settle the litigation, but to date has been unable to reach any necessary agreement.

Those of us in the PFI that have participated in these dealings have quickly learned that the U.S. government can be difficult, and slow, to deal with.  Since the regulation is now final, they in a sense, “hold all the cards” since it will take additional regulatory action to change the requirements.  In addition, after the 2016 elections, the upper leadership of DOJ and EPA changed and is still undergoing change.  In this context, and with a full litigation docket covering many major rules, I think it is safe to conclude that EPA and the DOJ had many priorities in which our litigation matter was only one.

On a positive note, PFI staff members participated in a conference call in August with representatives from the EPA & DOJ.  We were told that the new administration was focusing on litigation matters like ours, raising the prospect that we may still be able to reach an acceptable agreement.  If, and when, we see details of any EPA proposal, we will regroup to see what our next steps should be.   All options continue to remain on the table including settlement or restarting our litigation in the U.S. Court of Appeals for the District of Columbia.

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