IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN LUNG ASSOCIATION, et al, Plaintiffs,

and HEARTH, PATIO & BARBECUE ASSOCIATION, ATTN: Jack H. Goldman 1901 North Moore St., Suite 600 Arlington, VA 22209 Proposed Plaintiff-Intervenor

v. GINA MCCARTHY, in her official capacity as Administrator, U.S. Environmental Protection Agency,

Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 13-cv-01555 (GK)

MOTION TO INTERVENE AS PLAINTIFF BY HEARTH, PATIO & BARBECUE ASSOCIATION Hearth, Patio & Barbecue Association (“HPBA”) respe ctfully moves this Court for leave to intervene as a plaintiff in this action pursuant to Fed. R. Civ. P. 24 and Local Rule 7(j). As a longstanding and active stakeholder in both histori c and continuing efforts related to the development and revision of new source performance standards under Subpart AAA of the Part 60 regulations under the Clean Air Act (“CAA”), HPB A has Article III standing and satisfies the requirements for intervention as a matter of right or, alternatively, for permissive intervention. HPBA is an international trade association represen ting the interests of the hearth products industry throughout the United States. HP BA’s members are directly regulated by

Case 1:13-cv-01555-GK Document 13 Filed 10/31/13 Page 1 of 32

Clean Air Act standards for solid fuel burning appl iances such as those under Subpart AAA.

HPBA shares Plaintiffs’ view that the U.S. Environm ental Protection Agency’s (“EPA”) failure to timely review and revise the regulations in Subp art AAA violates the Agency’s statutory duties under Clean Air Act Section 111(b). EPA’s n oncompliance, however, uniquely affects HPBA’s members, who bear the burden of complying wi th any future revised and additional standards. In particular, EPA’s failure to act has had an industry-wide impact on manufacturers’ ability to meaningfully plan to ensure compliance w ith revised regulatory requirements, and to do so without incurring additional costs caused by the regulatory uncertainty resulting from EPA’s delay. EPA’s delay also affects manufacturer s of certain specific hearth industry products who currently face a patchwork of inconsistent stat e regulatory requirements and, in some cases, product bans. HPBA seeks to intervene in this action pursuant to Fed. R. Civ. P. 24(a). Under Rule 24(a), a party may intervene as of right when it ha s an interest that may be impaired or impeded by the disposition of the action and its interest i s not adequately represented by other parties. Alternatively, HPBA seeks permissive intervention u nder Rule 24(b). As explained in the accompanying statement of points and authorities in support of this motion, and the declarations attached thereto, HPBA meets the requirements to in tervene under both Rule 24(a) and Rule 24(b).

Counsel for HPBA has conferred with counsel for Pla intiffs, who indicated that Plaintiffs intend to review HPBA’s Motion before taking a posi tion. Counsel for HPBA also conferred with counsel for EPA, who indicated that EPA takes no position at this time, but reserves the right to oppose the Motion within the time allotted under the Court’s rules. Case 1:13-cv-01555-GK Document 13 Filed 10/31/13 Page 2 of 33

Accordingly, HPBA respectfully requests that the Co urt grant its motion to intervene as a plaintiff. October 31, 2013 Respectfully submitted,

/s/ David E. Menotti David E. Menotti (No. 158089) David Y. Chung (No. 500420) Dawn Miller (No. 998627) CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004-2595 (202) 624-2500 Attorneys for Hearth, Patio & Barbecue Association Case 1:13-cv-01555-GK Document 13 Filed 10/31/13 Page 3 of 3