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Update on HPBA NSPS Litigation

The Hearth, Patio & Barbecue Association (HPBA) appeared before the U.S. Court of Appeals for the D.C. Circuit in oral arguments in litigation against the U.S. Environmental Protection Agency (EPA). HPBA argued against EPA’s revision of the audit testing provisions, used to enforce the 2015 New Source Performance Standards (NSPS), which fail to account for inherent variability in test method results and the means by which EPA imposed new compliance audits in the 2015 Rule.

For an industry comprised almost entirely of small businesses, the audit provision is a company killer. It allows EPA to take any product, test it in any lab, and if the product does not pass the audit test, the manufacturer may have to recall all stoves from that model line. Even the cost of challenging “failed” audit test may prove insurmountable for many manufacturers.

The EPA has a standing, decades-long acknowledgement that it lacks understanding about the inherent variability of test results for woodburning appliances. This is why, historically, it has not required that a certified appliance to be tested at a different lab than the lab that had performed the original certification tests, much less make such testing the basis for an audit test.

Standard procedure allows for some variability in testing precision between different laboratories. This is not allowed in the current rule.

HPBA submitted comments opposing the revisions to the audit testing provision to take variability into account when the 2015 NSPS was initially opened for public comment. EPA failed to respond to the arguments against the provision, which it must do under the basic precepts of administrative law. It is our hope that the Court will vacate this provision of the 2015 NSPS and reinstate the previous audit provisions, which took variability into account. The Court will likely issue its opinion in the coming months.