Ms. Janet McCabe 

Acting Assistant Administrator for the Office of Air and Radiation 

United States Environmental Protection Agency 

William Jefferson Clinton Building 

1200 Pennsylvania Avenue, N. W. 

Washington, DC 20460 

Re: Extension of effective dates under the Clean Air Act 

Dear Janet: 

Suite 600, 1901 North Moore Street 

Arlington, VA 22209-1728 

Phone: (703) 522-0086 • Fax: (703) 522-0548 

Email: hpbamail@hpba.org 

Web Site: www.hpba.org 

We appreciate the opportunities that the Hearth, Patio & Barbecue Association (HPBA) has had to meet 

with you and members of your staff regarding issues of concern to the hearth products industry in the 

proposed revision to the NSPS for Wood Heaters. We also met with Office of Compliance and 

Enforcement Assurance (OECA) staff earlier this month regarding our concerns about their 

responsibilities under the new rule. During that meeting, a member of the Office of Air and Radiation 

team reiterated a position on deadlines that we have now heard several times: that EPA's Office of 

General Counsel does not believe there is legal authority under the Clean Air Act to issue an NSPS with 

an extended deadline, in this case for the product category of Warm Air Furnaces (WAFs). 

We have asked our legal team to review this issue, and I am forwarding their opinion to you for your 

consideration. 

It is worth noting that, during the same meeting with CECA, HPBA asked when the program would be 

ready to accept WAF test packages for certification. OECA answered that it would be ready on the 

effective date of the rule. The key concern is that the many small companies coming under the 

jurisdiction of the rule for the first time will not be able to submit certification applications to OECA 

before the effective date ofthe·rule. However, on the effective date, these small businesses face a donot-make-or-sell deadline in the rule. This is clearly a death sentence for most of these small 

companies, regardless ofthe attributes of their technologies. As I'm sure you can understand, this 

potential Catch-22 has become the focus within the WAF industry regarding the NSPS. We are sharing 

this concern with members on the Hill, and will be sharing this opinion with their offices as well. 

If you have any questions, please do not hesitate to contact me. 

Sincerely yours, 

President & 

ldman CEO 

Privileged & Confidential / Attorney-Client Communication / Attorney Work Product 

2 

revisions thereof shall become effective upon promulgation.”4 That language, however, was part 

of the Clean Air Act when EPA promulgated the existing Subpart AAA standards in 1988, and at 

that time, the Agency did not interpret it as restricting its ability to extend the effective dates of

standards in that rulemaking. For the reasons set forth in this memorandum, we continue to 

believe that EPA can extend the effective date for the proposed warm air furnace standards by at 

least one year. 

I. Because BSER Determinations Require Consideration of Costs and Lead Time, 

Imposition of a Step 1 Standard Without any Lead Time is not BSER. 

EPA has consistently recognized that the BSER determination requires consideration of 

lead time for industry. When it proposed the original Subpart AAA in 1987, EPA emphasized 

that BSER only applies to new sources that can meet standards with a reasonable lead time: 

To be [BSER], a technology must be available at a reasonable cost. For 

wood heaters, an important element of the cost of a technology is the 

cost of delaying production while models with that technology are 

designed and certified. Thus, [BSER] applies, and the standards apply, 

only to those classes of new sources that can meet the standards with a 

reasonable lead time[.]5

 

The preamble to EPA’s current proposal echoes the foregoing statements by declaring 

that “an element of the BSER determination includes reasonable lead time for R&D to develop 

and certify cleaner units.”6 The current proposal goes on to state that “important elements in 

determining [] BSER include the significant costs and environmental impacts of delaying 

production while models with those systems are being designed, field evaluated, and certified.”7 

Whether the Step 1 standard for WAFs has been adequately demonstrated as achievable, 

taking into account costs and other considerations, depends in part on whether manufacturers 

have sufficient lead time. In this rulemaking, the Step 1 standard could very well result in 

business failures, thereby jeopardizing the very existence of the warm air furnace industry. The 

costs of imposing the proposed Step 1 standard without any lead time cannot possibly be 

justified as BSER under these circumstances. Absent an extension of the effective date, the only 

defensible BSER for warm air furnaces would be no standards or Step 1 standards that are at or 

near emissions levels achievable by baseline models. Rather than promulgating no standards or 

going through an essentially meaningless exercise of requiring certification to levels reflecting 

baseline conditions, however, EPA has authority pursuant to the overriding imperative that Step 

1 standards reflect adequately demonstrated BSER to promulgate the Step 1 standard, while 

 

4

 42 U.S.C. § 7411(b)(1)(B). 

5

 52 Fed. Reg. at 5,000 (Feb. 18, 1987). 

6

 79 Fed. Reg. at 6,364. 

7

Id.
Privileged & Confidential / Attorney-Client Communication / Attorney Work Product 

3 

extending the effective date for a modest one-year period.8 This is an option EPA was obviously 

contemplating at the time it proposed the new warm air furnace standards earlier this year. And, 

as explained in the next section, EPA provided this precise transition relief in the 1988 

regulations. 

II. EPA Extended Effective Dates for Standards When it Promulgated Existing 

Subpart AAA, and It Again Proposes To Do So for Step 2 Standards in the Current 

Proposal. 

EPA’s claim that it lacks statutory authority to extend effective dates cannot be 

reconciled with the fact that: (i) in 1988, EPA extended the effective dates of the standards in 

existing Subpart AAA; (ii) in the ongoing rulemaking, EPA proposes to extend effective dates 

for the Step 2 standards by five years. 

A. EPA Extended Effective Dates in Two Different Respects in the Original 

Subpart AAA Regulations. 

When EPA finalized the existing Subpart AAA in 1988, it extended the effective date of 

the new standards by one year for small manufacturers,9

 and it simultaneously established 

staggered effective dates for the new standards for all other manufacturers.10 With respect to the 

former extension, EPA provided two reasons for doing so: 

The first was to provide an additional means of reducing a potential 

logjam problem by delaying for 1 year the compliance date for many 

manufacturers. The second was to provide additional time to small 

manufacturers for such purposes as conducting the research and 

development, obtaining financing, or purchasing complying designs, 

necessary to meet the standard. Small manufacturers would likely be the 

least able to meet the compliance deadlines, because, as a rule, they have 

 

8

 We are aware that, in Portland Cement Ass’n v. Ruckelshaus, the Court discussed the 

importance of lead time in the BSER determination and concluded that, because the standards at 

issue would take effect immediately, the “latitude” of EPA’s projection of the availability of 

technology would be “correspondingly narrowed.” 486 F.2d 375, 390-92 (D.C. Cir. 1973). In 

that case, the issue of EPA’s authority to extend effective dates was not before the Court; thus, 

the Court did not have to resolve the tension between the statutory language governing BSER 

determinations and effective dates. Moreover, that case involved standards that would apply to 

traditional site-built sources (by far the predominant paradigm for Section 111 standards), not 

standards that apply to sources manufactured on production lines and subject to a model-line 

certification scheme. 

9

See 40 C.F.R. § 60.530(d) (1990). 

10 Id. § 60.532 (1990). 
Privileged & Confidential / Attorney-Client Communication / Attorney Work Product 

4 

less technical expertise, more limited investment funds, and less access 

to capital markets than large manufacturers.11

With respect to the latter extension, EPA established “a two-phased standard with the 

first phase beginning in July 1988 to be followed by a more stringent standard in July 1990.”12

 

Under that rule, the limits under the first phase were 5.5 g/hr (catalytic) and 8.5 g/hr (noncatalytic). The phase two limits, which EPA delayed for a period of two years, were 4.1 g/hr 

(catalytic) and 7.5 g/hr (non-catalytic).13 EPA justified the two-phase approach as follows: 

Until this time, control technology had been essentially undemonstrated. 

The committee concluded, therefore, that a level of control comparable 

to the Oregon 1988 standard was appropriate and achievable in 1988. It 

was concluded that a more stringent level of control as early as 1988 

would not necessarily be achievable by those models which otherwise 

would have met the Oregon 1988 standard. Such a standard would cause 

an unmanageable certification backlog, would present a moving target to 

those manufacturers who had done the research and development and 

spent funds for certification in Oregon, and would not be reasonable 

considering the small environmental gain, if any, that might result. A 

second phase of the standard, requiring more stringent emission controls, 

would go into effect 2 years later in July 1990. 

These extensions reflect the fact that, when EPA promulgated the 1988 rule, it interpreted 

the statutory text in Clean Air Act Section 111 as allowing it to establish NSPS that do not

become effective immediately upon promulgation. Notably, the statutory language at that time 

already provided that Section 111 standards “shall become effective upon promulgation.”14 EPA 

has not articulated any explanation for why it now interprets the statute differently.15

 

11 52 Fed. Reg. at 5,000. 

12 Id.

13 See 40 C.F.R. § 60.532 (1990). 

14 42 U.S.C. § 7411(b)(1)(B) (1982 ed.). 

15 Even assuming that the only statutory language that is in play here is the “effective upon 

promulgation” language in Section 111(b)(1)(B)—an incorrect assumption for the reasons 

discussed above—a recent federal court decision involving Clean Air Action Section 112 

standards provides support for the position that the language in Section 111 governing the 

effective date of standards is not inflexible. See Sierra Club v. Jackson, 833 F. Supp. 2d 11, 23-

26 (D.D.C. 2012) (holding that EPA has authority to stay the effective date of standards 

promulgated under Clean Air Act Section 112 pending judicial review even though Section 

112(d) states that standards shall be “effective upon promulgation”). Thus, although Section 112 

is considerably less flexible than Section 111 regarding effective date and consideration of costs, 

even that provision’s command to make standards “effective upon promulgation” is not absolute. 

The same ought to be true with respect to the identical language governing effective dates in 

(Continued...) 
Privileged & Confidential / Attorney-Client Communication / Attorney Work Product 

5 

B. EPA’s Current Proposal Delays the Effective Dates for the Step 2 Standards 

by Five Years. 

Consistent with past practice, EPA’s current proposal provides for a five-year extension 

of the effective dates of the Step 2 standards for all appliance categories.16 That aspect of the 

proposal demonstrates that EPA believes it has authority to depart from the language in Section 

111 that provides that standards “shall become effective upon promulgation.” It is arbitrary for 

EPA to interpret the same statutory provision as simultaneously (i) prohibiting it from extending 

the effective date of the Step 1 standard for warm air furnaces by a modest one-year period, 

while (ii) authorizing it to promulgate Step 2 standards in the same rulemaking for all appliance 

categories that do not become effective for five years. EPA either has the authority to extend 

effective dates or it does not. If it does not, then by implication it would seem that the statute 

requires EPA to remove the Step 2 standards from the current proposal. 

* * * 

For these reasons, HPBA and its membership have a strong legal basis to continue to 

rigorously advocate for at least a one-year extension of the effective date of the proposed Subpart 

QQQQ standards for warm air furnaces. 

 

Section 111, given the need in the Section 111 context to reconcile effective dates with the 

overarching imperative that standards reflect BSER.

16 See 79 Fed. Reg. at 6,375 (proposed 40 C.F.R. § 60.532); see also 79 Fed. Reg. at 6,384-85 

(proposed 40 C.F.R. § 60.5474).