August 27, 2021
HPBA Statement in Response to US Court of Appeals Decision
The Hearth, Patio & Barbecue Association (HPBA) expresses great disappointment that the U.S. Court of Appeals for the D.C. Circuit ruled against its request to vacate the audit testing provision of the 2015 New Source Performance Standards (NSPS) in HPBA v. EPA. This unfortunate decision means that the unrealistic audit testing provisions adopted by the Environmental Protection Agency (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,” stated Jack Goldman, President and CEO of HPBA.
The audit testing provisions in the 2015 rulemaking failed to account for the known variabilities in test method results from different labs.
“These variabilities tend to be minor and generally are caused by the expected differences when anyone burns wood,” Goldman continued. “The original NSPS in 1988 took these variabilities into account. With this court decision, manufacturers are being held to an unreasonable standard.”
The EPA never justified why it departed from its decades-long acknowledgment that it lacks the understanding about these variabilities in woodburning appliances and it failed to respond to HPBA’s arguments against the audit provision during the 2015 comment period. This response was required under the basic precepts of administrative law.
“This is an industry comprised almost entirely by small businesses and the audit provision is a company killer. 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,” Goldman stated. “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.”
HPBA will carefully study the court’s decision and later decide what actions to take.
You can listen to the oral arguments here. The final ruling can be read here.
About the Hearth, Patio & Barbecue Association (HPBA)
The Hearth, Patio & Barbecue Association (HPBA), based in Arlington, Va., is the North American industry association for manufacturers, retailers, distributors, representatives, service firms and allied associates for all types of barbecue, patio and hearth appliances, fuels and accessories. The association provides professional member services and industry support in education, statistics, government relations, marketing, advertising and consumer education.
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