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)

STATEMENT OF POINTS AND AUTHORITIES IN SUPPORT OF

MOTION TO INTERVENE AS PLAINTIFF BY HEARTH, PATIO & BARBECUE ASSOCIATION The Hearth, Patio & Barbecue Association (“HPBA,” o r “Proposed Intervenor”) hereby files this statement of points and authorities in s upport of its motion to intervene as a plaintiff pursuant to Fed. R. Civ. P. 24 and Local Rule 7(j). As a longstanding and active stakeholder in both historic 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”), HPBA has Article III standing and satisfie s the requirements for intervention as a matter of right or, alternatively, for permissive i ntervention. HPBA also recently notified the Environmental Protection Agency (“EPA” or “the Agen cy”) of its intent to file its own lawsuit Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 1 of 202

seeking the same relief as the plaintiffs in this c ase— i.e. , a declaration that EPA has violated its nondiscretionary duty to complete its review and re vision of Subpart AAA by the statutory deadline, and appropriate injunctive relief to addr ess the violation. Intervention in this suit could, however, eliminate the need for a separate l awsuit. Accordingly, this Court should grant HPBA’s motion to intervene. BACKGROUND The plaintiffs in this lawsuit (collectively, “Plai ntiffs”) seek to compel the EPA to carry out its statutory duty to review and revise 25-year -old standards for new residential wood heaters. To provide the context for HPBA’s motion to intervene, we summarize the key issues and developments below. I. Regulatory and Procedural History EPA first began regulating new residential wood hea ters under Section 111 of the CAA in 1988, when it issued its final rule promulgating standards of performance for particulate matter emissions under Subpart AAA. See Standards of Performance for New Stationary Sources; New Residential Heaters, 53 Fed. Reg. 5,86 0 (Feb. 26, 1988). The regulations expressly applied to “new residential wood heaters, ” and excluded other hearth appliances, such as furnaces, boilers, and fireplaces. Id . The standards put in place under EPA’s 1988 rule issuance remain in place today. See generally 40 C.F.R. Part 60, Subpart AAA. HPBA’s members are directly regulated by standards for solid fuel burning appliances such as those under Subpart AAA. Thus, HPBA has co nsistently been at the forefront of advocacy efforts related to the development and rev ision of hearth appliance standards. For example, HPBA’s predecessor, the Wood Heating Allia nce, played a critical role in the regulatory negotiation proceedings responsible for Subpart AAA, the first generation Section 111 standards for wood stoves and some pellet stove s. See Ex. A (Declaration of Robert Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 2 of 203

Ferguson, ¶ 5 (Oct. 31, 2013)). Since the outset o f recent EPA discussions pertaining to potential revision of Subpart AAA, HPBA has proacti vely sought to advance industry’s interests on the relevant issues, including through its parti cipation on voluntary consensus standard-setting bodies such as ASTM, by collecting industry informa tion and data, by conducing scientific research and analysis, and in advocating for its me mbers on the ultimate standards to be issued.
See Ex. A (Ferguson Decl. ¶¶ 4-7); see also Ex. B (60-Day Notice of Intent to Sue from J. Goldman, Hearth, Patio & Barbecue Ass’n, to Adminis trator McCarthy, U.S. EPA, at 1-2 (Oct. 10, 2013)). While EPA’s efforts have so far genera ted a proposed rulemaking package that is currently undergoing review by the Office of Inform ation and Regulatory Affairs (“OIRA”) under Executive Order 12866, the process to review and revise the Subpart AAA standards is far from complete. In light of EPA’s inaction, Plaintiffs filed this s uit on October 9, 2013. See Compl. for Declaratory and Injunctive Relief [ECF No. 1]. Pla intiffs allege claims under Section 304(a)(2) of the CAA, which permits citizens to bring suit to challenge EPA’s failure to perform nondiscretionary statutory duties. 42 U.S.C. § 7604(a )(2). Specifically, Plaintiffs challenge EPA’s failure to timely “review and, if appropriate, revi se” the existing Subpart AAA standards, pursuant to Section 111(b)(1)(B). 42 U.S.C. § 7411 (b)(1)(B). That provision requires EPA to review and appropriately revise Section 111(b) stan dards for new sources at least every eight years, unless the Administrator determines “that su ch review is not appropriate in light of readily available information on the efficacy of such stand ards.” Id . In Plaintiffs’ view, EPA’s failure to complete its review and revision of Subpart AAA by the statutory deadline is a violation of EPA’s non-discretionary duties under Section 111(b) warranting judicial intervention and relief.
See Compl. for Declaratory and Injunctive Relief ¶¶ 1, 40-42. Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 3 of 204

II. Unique Implications of Regulatory Process for H PBA HPBA shares Plaintiffs’ view that EPA’s failure to timely complete its revisions to Subpart AAA violates the Agency’s statutory duties under Section 111(b). Indeed, HPBA recently submitted its own 60-day notice of intent to sue under the Clean Air Act’s citizen suit provision, seeking to enforce EPA’s non-discretiona ry duty to timely review and revise the existing new source performance standards (“NSPS”) for residential wood heaters. See generally Ex. B (HPBA 60-Day Notice). HPBA’s notice of inten t to sue discusses a range of concerns held by industry members as a result of EP A’s delay and inaction—concerns which would be addressed through HPBA’s intervention in t his suit. See id

. EPA’s noncompliance with Clean Air Act Section 111( b) uniquely affects HPBA’s members, who are directly regulated by existing sta ndards and bear the burden of complying with any future revised and additional standards. Simply put, EPA’s failure to act has had an industry-wide impact on manufacturers’ ability to m eaningfully plan to ensure compliance with revised regulatory requirements, and to do so witho ut incurring additional costs caused by the uncertainties occasioned by EPA’s delay. See, e.g. , Ex. C (Declaration of Bret Watson, ¶¶ 3-6 (Oct. 29, 2013)); Ex. D (Declaration of Frank L. Mo ore, ¶ 8 (Oct. 31, 2013)); Ex. E (Declaration of Timothy Seaton, ¶ 10 (Oct. 3, 2013)); Ex. A (Fer guson Decl. ¶ 5). HPBA’s own notice of intent to sue focuses on this problem, pointing out that EPA’s delay has “created significant uncertainty for manufacturers in designing or modif ying their appliance models, which negatively affects meaningful long-term planning an d investment decisions.” Ex. B (HPBA 60- Day Notice at 2). EPA’s failure to timely review and revise Subpart A AA has also created additional, unique burdens on hydronic heater manufacturers due to the lack of clear direction from the Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 4 of 205

federal government in formulating nationally unifor m standards. These concerns were highlighted in a September 2007 letter from HPBA’s Outdoor Hydronic Heater Caucus (now called a “Sub-Section”) to EPA supporting a new NSP S for hydronic heaters and urging EPA to alleviate the burdens of having to participate in p atchwork state and local standard-setting proceedings to fill the void created by the lack of an NSPS. See Ex. B (HPBA 60-Day Notice at 2); see also Ex. D (Moore Decl. ¶ 5) (discussing September 2007 letter and the impact of existing state and local regulatory requirements th at “could potentially have been avoided if uniform national standards had been in existence”). Masonry heater manufacturers suffer from many of th e same burdens as hydronic heater manufacturers. They also suffer additional unique burdens including, in particular, that their appliances are effectively banned in many areas due to the lack of NSPS coverage. See Ex. B (HPBA 60-Day Notice at 3); Ex. E (Seaton Decl. ¶ 6) (“As the years have gone by, masonry heaters continue to be marched out of one jurisdict ion after another based on rules requiring EPA certification.”); see also Ex. E (Seaton Decl. at Ex. 2) (list of jurisdiction s that do not allow or heavily regulate masonry heaters). To solve these problems, HPBA’s Masonry Heater Caucus (also now called a “Sub-Section”) has long requeste d EPA to include them in the NSPS, which we understand that EPA is planning to do. However, because of EPA’s delay masonry heater manufacturers continue to suffer harm. ARGUMENT Federal Rule of Civil Procedure 24 is to be constru ed liberally: “[A]n applicant to intervene need only show that the representation of his interest may be inadequate; the burden of proof rests on those resisting intervention.” SEC v. Dresser Indus., Inc. , 628 F.2d 1368, 1390 (D.C. Cir. 1980). Rule 24 recognizes two paths to intervention. Under Rule 24(a), a party is Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 5 of 206

entitled to intervene as a matter of right if the p arty “claims an interest relating” to the action an d “is so situated that disposing of the action may as a practical matter impair or impede” the party’s “ability to protect its interest.” Fed. R. Civ. P. 24(a). Alternatively, a party may seek “permissive” intervention under Rule 24(b)(1), if t he party has a “claim or defense that shares with the main action a common question of law or fa ct.” Fed. R. Civ. P. 24(b)(1)(B). For reasons explained below, HPBA has standing and is e ntitled to intervene under Rule 24(a) and, alternatively, should be permitted to intervene und er Rule 24(b). I. HPBA Has Article III Standing To Intervene. In the D.C. Circuit, a prospective intervenor must demonstrate that it has Article III standing by showing “(1) injury in fact, (2) causat ion, and (3) redressability.” Fund for Animals, Inc. v. Norton, 322 F.3d 728, 733 (D.C. Cir. 2003) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). Furthermore, to satisfy requi rements for associational standing, a proposed intervenor must also demonstrate that its “members would otherwise have standing to sue in their own right.” United Food & Commercial Workers Union Local 751 v. Brown Group, Inc. , 517 U.S. 544, 533 (1996). HPBA satisfies the test for Article III standing, w hich is “self-evident” in this case just as it is in “many if not most cases . . . [involving] review of administrative action.” See Fund for Animals , 322 F.3d at 733. If a party is itself the object of the government action (or, in this case, inaction) at issue, there is “ordinarily little que stion” that the party may be harmed and that a judgment preventing the action will redress the inj ury. Defs. of Wildlife, 504 U.S. at 561-62. HPBA’s members suffer concrete injury as a direct r esult of EPA’s failure to timely review and revise Subpart AAA. First, EPA’s failur e to timely revise Subpart AAA has caused all HPBA members to incur costs due to regulatory u ncertainty. See, e.g. , Ex. C (Watson Decl. ¶ 6); Ex. D (Moore Decl. ¶ 8); Ex. E (Seaton Decl. ¶ 10); Ex. A (Ferguson Decl. ¶ 5). Absent Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 6 of 207

sufficient clarity as to the nature and timing of l ikely revisions, HPBA’s members, including wood stove manufacturers covered under the existing NSPS, are forced either to delay specific planning and investment, or to act at the risk that their efforts may be redone in light of the requirements that are finally promulgated. See , e.g. , Ex. A (Ferguson Decl. ¶ 5) (“Without definitive standards or a clear sense of when [revi sed residential wood heater] standards will be issued, it is difficult to make planning and resear ch and development decisions and to commit to capital expenditures.”); Ex. C (Watson Decl. ¶ 4) ( “Jøtul has been essentially treading water with respect to initiating any new woodstove projects be cause we do not know what EPA’s revised standards will look like, when they will be issued, what the compliance timeline will be, etc. Without knowing these important variables, it is ha rd for Jøtul to make long range planning decisions or capital investments.”); see also Ex. E (Seaton Decl. ¶ 10) (“[U]ntil EPA issues a ru le indicating what standards, rules, and test methods will apply, I am unable to invest in and move forward with new product testing and other projects .”). Either way, HPBA’s members suffer increased costs. See , e.g. , Ex. C (Watson Decl. ¶ 6) (describing “opportunity c ost of putting new projects on hold – namely, lost incremental sales/p rofits and market share gains” and “opportunity cost of delaying cost saving improveme nts to [Jøtul’s] existing line of wood appliances”). Second, appliance manufacturers who have long sough t coverage under Subpart AAA continue to face a regulatory miasma of inconsisten t state regulations that have been and continue to be issued in the absence of any federal standards governing emissions. See Ex. B (HPBA 60-Day Notice at 2-3) (discussing lack of uni formity in state and local hydronic heater standards). HPBA’s Hydronic Heater Sub-Section wro te EPA supporting coverage under Subpart AAA six years ago to foster national unifor mity in hydronic heater standards, and to Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 7 of 208

mitigate the costs of participating in recurrent st ate and local standard-setting proceedings. See Ex. D (Moore Decl. at Attachment A). However, lack ing final action by EPA, hydronic heater manufacturers continue to face an increasing patchw ork of non-uniform state and local regulatory requirements ranging from requirements t o obtain state-level certification to bans on the use of hydronic heaters. See Ex. D (Moore Decl. ¶ 5). In fact, just this past September, the state of Alaska proposed new wood heater regulation s including, among other things, emissions limitations for hydronic heaters. See Notice, Proposed New Air Quality Regulations – Air Quality Fine Particulate Matter (PM-2.5) – Wood Hea ting Devices, S TATE OF A LASKA , available

at http://aws.state.ak.us/OnlinePublicNotices/Notices /View.aspx?id=169696 (last visited Oct. 28, 2013); see also Ex. D (Moore Decl. ¶ 6) (discussing proposed Alask a regulations, and resulting need to participate in state and local regulatory p roceedings). EPA’s delay also precludes the resolution of some o f the most contentious issues surrounding hydronic heaters, something which would be achieved through prompt completion of a transparent notice-and-comment process to revi se Subpart AAA. See , e.g. , Ex. B (HPBA 60-Day Notice at 3); see also Ex. D (Moore Decl. ¶ 8) (“Should EPA . . . move for ward and establish clear, uniform standards, that will give customers in the marketplace the certainty they need to make purchasing decisions.”). As described in HPBA’s notice of intent to sue, prompt EPA action to revise the NSPS “would assist in fina lly resolving many of the contentious issues surrounding these appliances by providing an opport unity for their resolution in a transparent, rigorous standard-setting proceeding in which all s takeholders can participate.” Ex. B (HPBA 60-Day Notice at 3). The masonry heater industry faces other related inj uries due to EPA’s continuing inaction. See id. (HBPA 60-Day Notice at 3). Despite their inherent clean burning Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 8 of 209

characteristics, masonry heaters are often perceive d as “dirty” because they cannot be EPAcertified. See id. ; see also Ex. E (Seaton Decl. ¶ 5) (“An unintended result of [masonry heaters’ exemption from the NSPS] has been a tendency by sta te and local jurisdictions to assume that the absence of NSPS coverage means that masonry heaters are not clean-burning, a perception that could not be further from the truth.”). As a resul t, any authorization for their use or installation has often come at a high cost, under tight restrict ions. See Ex. E (Seaton Decl. ¶¶ 6-9). Many jurisdictions have effectively banned them altogeth er ( i.e. , by requiring all appliances to be “EPA-certified”). See Ex. B (HPBA 60-Day Notice at 3); Ex. E (Seaton Decl . ¶¶ 6-7 & Ex. 2). Of course, masonry heaters cannot be EPA-certified unless and until they are incorporated into the NSPS—something which cannot happen until EPA co mpletes the process of revising Subpart
AAA. See Ex. B (HPBA 60-Day Notice at 3 (“[U]ntil [masonry h eaters are included in the NSPS], the regulatory barriers to masonry heaters i n these jurisdictions will remain in place.”); see also Ex. E (Seaton Decl. ¶ 12). Though EPA has clearly indicated its intent to bring masonry heaters within the sweep of a revised Subpart AAA, EPA’s delay in promulgating revised regulations forces this already small industry to b ear the burdens and costs of complying with a patchwork of state and local standards, which has r esulted in a significantly reduced market. See Ex. E (Seaton Decl. ¶¶ 11-12). All these injuries are sufficiently concrete to sat isfy Article III’s injury-in-fact requirement. See Fund for Animals , 322 F.3d at 733. Moreover, they are directly cau sed by, and thus “fairly traceable” to, EPA’s failure to comply with the statute. Id . Finally, these injuries would be redressed by a favorable ruling from this Court, compelling agency action in performance of EPA’s duty to issue revised standard s under Subpart AAA. Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 9 of 2010

HPBA also satisfies associational standing requirem ents, as its members would have standing in their own right, the interests HPBA see ks to protect are germane to its organizational purpose, and neither the claims asserted nor relief requested require the participation of individual members. See Hunt v. Washington State Apple Adver. Comm’n , 432 U.S. 333, 342-43 (1977). First, because HPBA’s membership is compos ed of manufacturers directly subject to Subpart AAA and any potential revision, its members plainly would have standing, based on the injuries described above. See Defs. of Wildlife, 504 U.S. at 561-62. Second, HPBA’s purposes are germane to the litigation. “Germaneness is sat isfied by a ‘mere pertinence’ between litigation subject and an organization’s purpose.” Competitive Enter. Inst. v. Nat’l Highway Traffic Safety Admin. , 901 F.2d 107, 111 (D.C. Cir. 1990). Here, one of HPBA’s primary purposes is to represent and protect the interests of its members – manufacturers specifically subject to the NSPS regulations at issue in this ca se – before government regulators responsible for developing and enforcing standards and requirem ents applicable to their products. Indeed, as referenced above and detailed in HPBA’s notice of i ntent to sue, HPBA has historically been at the forefront of efforts related to the promulgatio n and revision of Subpart AAA, from the initial regulatory negotiation proceedings to establish a w ood heater NSPS up through the most recent deliberation over review and revision. See Ex. B (HPBA 60-Day Notice at 1-2); see also Ex. A (Ferguson Decl. ¶¶ 5-7). Accordingly, HPBA’s repre sentation of regulated industry in this matter is not only germane to but corresponds direc tly with its organizational purpose. Finally, neither the claims asserted nor the relief requested requires the participation of individual HPBA members. No parties to this litiga tion are seeking monetary damages. Rather, the remedy at stake in this litigation is a declara tory judgment that EPA has violated a nondiscretionary duty to complete its review and re vision of Subpart AAA, and an injunction Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 10 of 2011

compelling EPA performance of this duty. See Compl. for Declaratory and Injunctive Relief ¶¶ 1, (1)-(5); HPBA [Proposed] Compl. for Declaratory and Injunctive Relief ¶¶ 1, A-E. Because such relief is equitable, individual member partici pation is not required. See United Food & Commercial Workers Union Local 751 , 517 U.S. at 553-54. II. HPBA May Intervene as of Right Under Rule 24(a) . Fed. R. Civ. P. 24(a)(2), which provides for interv ention as of right, states, as follows: On timely motion, the court must permit anyone to i ntervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede t he movant’s ability to protect its interest, unless existing pa rties adequately represent that interest. In the D.C. Circuit, an applicant’s right to interv ene depends upon (1) “the timeliness of the motion; (2) whether the applicant claims an interes t relating to the property or transaction which is the subject of the action; (3) whether the appli cant is so situated that the disposition of the action may as a practical matter impair or impede t he applicant’s ability to protect that interest; and (4) whether the applicant’s interest is adequat ely represented by existing parties.” Fund for Animals , 322 F.3d at 731 (internal quotation marks omitted ). Although the D.C. Circuit requires “a party seeking to intervene as of right [to] demo nstrate that it has standing under Article III of the Constitution,” id. at 731-32, it has also noted that “any person who satisfies Rule 24(a) will also meet Article III’s standing requirement.” Roeder v. Islamic Republic of Iran , 333 F.3d 228, 233 (D.C. Cir. 2003). As explained below, HPBA meets the requirements for intervention as of right under Rule 24(a)(2). Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 11 of 2012

A. HPBA’s Motion to Intervene is Timely. HPBA’s motion is unquestionably timely. “[T]imelin ess is to be judged in consideration of all the circumstances, especially weighing the f actors of time elapsed since the inception of the suit, the purpose for which intervention is sou ght, the need for intervention as a means of preserving the applicant’s rights, and the probabil ity of prejudice to those already parties in the
case.” See United States v. British Am. Tobacco Australian Servs. , 437 F.3d 1235, 1238 (D.C. Cir. 2006) (quoting United States v. Am. Tel. & Tel. Co. , 642 F.2d 1285, 1295 (D.C. Cir. 1980)). This case is still at a preliminary stage. Plainti ffs filed their complaint on October 9, 2013, and EPA has not yet filed an answer. A motio n to intervene prior to a defendant’s answer is timely. 7C C HARLES A LAN W RIGHT , A RTHUR R. M ILLER , & M ARY K AY K ANE , F EDERAL P RACTICE & P ROCEDURE § 1916, at 557 (3d ed. 2007) (motion to intervene “made before the existing parties have joined issue in the pleadings has been regarded as clearly timely”). In addition, no preliminary or dispositive motions hav e been filed, nor have any rulings on the merits been entered or a briefing schedule set. HP BA’s intervention will not prejudice any existing parties or delay the proceedings. HPBA se eks to “participate in an upcoming . . . phase of the litigation,” Natural Res. Def. Council v. Costle , 561 F.2d 904, 908 (D.C. Cir. 1977), and not to reopen settled issues that would otherwise r emain closed. Finally, HPBA will comply with all deadlines set forth in any scheduling orde rs from the Court. Given the short amount of time since the filing of the Complaint, the significance of HPBA’s interests in intervention (discussed below), and the absence of prejudice to any party, this motion “cannot be regarded as untimely.” Mova Pharmaceutical Corp. v. Shalala , 140 F.3d 1060, 1076 (D.C. Cir. 1998). Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 12 of 2013

B. HPBA Has Cognizable Interests That Could Be Impa ired By The Disposition Of This Action. We discuss the closely related interest and impairm ent factors together. The “cognizable interest requirement assists in ‘dispos[ing] of law suits by involving as many apparently concerned persons as is compatible with efficiency and due process.’” People for the Ethical Treatment of Animals v. Babbitt, 151 F.R.D. 6, 8 (D.D.C. 1993) (“ PETA” ) (quoting Nuesse v. Camp , 385 F.2d 694, 700 (D.C. Cir. 1967)). HPBA is clear ly a “concerned person” because its members are directly regulated by standards imposed by EPA under Subpart AAA and are therefore injured by EPA’s failure to timely review and revise those standards. Moreover, as this lawsuit seeks to challenge EPA’s failure to carry o ut its mandatory responsibilities, the Court’s assessment of HPBA’s interests must be guided by th e even “greater impetus to intervention that inheres in administrative cases” than in ordinary p rivate litigation. Nuesse , 385 F.2d at 700. In particular, HPBA has strong interests in both (1 ) avoiding continued regulatory uncertainty, and (2) obtaining NSPS coverage for hy dronic heaters and masonry heaters so as to facilitate greater national uniformity, and potenti ally preclude the burdens and costs of participation in additional state and local proceed ings prompted by the absence of federal standards. 1 As discussed above, EPA’s failure to issue any fo rmal proposed or final rulemaking identifying new regulatory requirements to be impos ed on industry has created a persistent state of regulatory uncertainty that clouds industry’s ab ility to identify what steps are necessary now

1 While a new NSPS covering hydronic heaters and mas onry heaters would not legally preclude the adoption of more stringent state or local stand ards, see 42 U.S.C. § 7416, it could forestall state and local governments from adopting their own standards, particularly in the current resource-constrained environment. Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 13 of 2014

to ensure that its models will be able to comply. 2 See supra Section I. As a result of such uncertainty, industry is inhibited from making mean ingful long-term plans and is hindered from making any early investments in new technologies wi thout risking that they will become unnecessary, or lost entirely as a result of unanti cipated regulatory requirements. See, e.g. , Ex. C (Watson Decl. ¶ 6) (uncertainty due to EPA inaction has required Jøtul “to halt design for manufacturing and line balancing activities in oper ations because we simply do not know what standards we will need to meet (or when) and whethe r we can modify designs sufficiently to meet the standards.”). Meanwhile, hydronic heater and masonry heater manuf acturers continue to be burdened by inconsistent and restrictive state and local reg ulatory requirements brought about in part because of the lack of clear federal guidance and t he unavailability of EPA certification. See,

e.g. , Ex. B (HPBA 60-Day Notice at 2-3); Ex. D (Moore D ecl. ¶ 5); Ex. E (Seaton Decl. ¶¶ 7-9, 12). Indeed, the longer that EPA action is delayed , the more labyrinthine the current state-bystate system of regulation grows, and the more cost ly and difficult it will be for all industry to ultimately comply with revised standards. See , e.g. , Ex. E (Seaton Decl. ¶ 12); Ex. D (Moore Decl. ¶¶ 6-7). Such economic interests plainly mak e intervention by HPBA in this case appropriate. See Cascade Natural Gas Corp. v. El Paso Natural Ga s Co. , 386 U.S. 129, 135-36 (1967), vacated on other grounds sub nom. , Utah Public Service Comm’n v. El Paso Natural
Gas Co. , 395 U.S. 464 (1969) (economic loss from implement ation of a proposed consent decree

2 While EPA has offered preliminary (and fluctuating ) positions on various aspects of any revision to Subpart AAA, such informal and prematur e overtures offer industry no measure of certainty as to what standards might look like and when they will go into effect. In fact, the anticipated timeline for formal EPA action has alre ady been pushed back on more than one occasion, leaving it unlikely if not impossible tha t new standards will go into effect any time prior to summer 2015. Bill Sendelback, Tough Times for Wood Stoves , H EARTH & H OME , Sept. 2013, at 90. Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 14 of 2015

warrants intervention). Indeed, due process and si mple fairness demand that HPBA, as regulated industry, be permitted to assert its inherent inter ests in the pending litigation. See Kleissler v.
U.S. Forest Serv. , 157 F.3d 964, 971 (3d Cir. 1998) (in cases pitting private, state, and federal interests against each other, “[r]igid rules [barri ng intervention] contravene a major premise of intervention – the protection of third parties affe cted by the pending litigation. Evenhandedness is of paramount importance .”) (emphasis added). As to the potential impairment of HPBA’s interests, Rule 24(a)(2) focuses on the practical impairment of the ability to protect one’s interest s under the particular circumstances of the case. The Rule itself expressly provides for i ntervention of right when “disposing of the action may as a practical matter impair or impede the movant’s ability to protect it s interest.” Fed. R. Civ. P. 24(a)(2) (emphasis added). The D.C . Circuit has consistently interpreted this language as requiring a court to look at the “pract ical consequences” of denying intervention when evaluating an intervention request. Nuesse , 385 F.2d at 702; see also Smuck v. Hobson, 408 F.2d 175, 180-81 (D.C. Cir. 1969); Textile Workers Union v. Allendale Co., 226 F.2d 765, 767 (D.C. Cir. 1955). The practical effect of deny ing HPBA intervention could be continued regulatory uncertainty and the imposition of additi onal costs stemming from further EPA delay in revising its Subpart AAA regulations. See, e.g. , Ex. D (Moore Decl. ¶¶ 6-8); Ex. E (Seaton Decl. ¶ 12); see also Ex. C (Watson Decl. ¶ 6) (“The bottom line is, the continuing delays in revising the applicable standards are affecting the way we do business.”). Intervention therefore is appropriate to avoid this result and instead com pel prompt government action that will both enable HPBA’s members to make informed steps to com ply, and allow for meaningful advocacy and involvement in the standard-setting process goi ng forward. Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 15 of 2016

C. HPBA’s Interests Are Not Adequately Represented By the Existing Parties. None of the existing parties in this case can adequ ately represent HPBA’s interests. Proposed intervenors need only show “that represent ation of [their] interest ‘may be’ inadequate, not that representation will in fact be adequate.” Dimond v. District of Columbia , 792 F.2d 179, 192 (D.C. Cir. 1986) (quoting Trbovich v. United Mine Workers , 404 U.S. 528, 538 n.10 (1972)). This burden in making this demonstration “should be treated as minimal .” Fund for Animals,
Inc. , 322 F.3d at 735 (quoting Trbovich , 404 U.S. at 538 n. 10) (emphasis added). For exa mple,
in Trbovich , the Supreme Court found that a prospective interv enor met his “minimal” burden of showing possible inadequate representation of its i nterests by the government even though the statute at issue in the case expressly obligated th e Secretary of Labor to serve his interests. See 404 U.S. at 538-39. HPBA easily satisfies this “minimal” requirement. In this case, HPBA’s interests fundamentally differ from those of the existing Pla intiffs. Plaintiffs are advocacy groups and state and local agencies, while HPBA represents man ufacturers, distributors and retailers of hearth products. See Ex. B (HPBA 60-Day Notice at 1). As such, HPBA and Plaintiffs have very different concerns, and proposals for any reso lution of the litigation are likely to reflect each HPBA’s, Plaintiffs’, and Defendant’s divergent inte rests. For example, the existing Plaintiffs can be expected to seek a judgment or settlement th at would require EPA’s rapid promulgation of broadly-applicable, highly generalized standards , while HPBA might prefer approaches that better protect HPBA’s participation in the standard -setting process, by giving appropriate recognition to the complexity of the issues and the analysis that is needed to adequately address them. In this regard, HPBA and the manufacturers a nd laboratories that it represents have unique knowledge of the underlying issues that will inform its approach to an appropriate resolution of this case, which simply cannot be dup licated by Plaintiffs. See , e.g. , Ex. A Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 16 of 2017

(Ferguson Decl. ¶ 6) (discussing analyses commissio ned by HPBA to evaluate industry data and address a variety of wood heater emission questions ). In short, HPBA is able to offer unique perspectives and critical information based on its deep familiarity with the industry and the technical issues and data which have an important b earing on the appropriate resolution of this case. Absent HPBA’s participation in this matter, HPBA would be precluded from providing such input, and important information would be unav ailable to the parties and to this Court in resolving questions that might arise. That HPBA and Plaintiffs may share some common obje ctive, e.g. , a finding that EPA’s delay in revising Subpart AAA is unlawful, is both irrelevant and insufficient. Parties must not be assumed to share the same interests “merely beca use both entities occupy the same posture in the litigation.” Utah Ass’n of Counties v. Clinton , 255 F.3d 1246, 1256 (10th Cir. 2001). Ultimately, whatever common threads may be found in Plaintiffs’ and HPBA’s claims, the existing Plaintiffs are inherently unable to adequa tely represent HPBA’s divergent interests and those of its members. Plaintiffs have no duty to p rotect HPBA’s current level of engagement in the NSPS process, and further lack the ability or i nterest to advance HPBA’s interests in the procedures and timelines that will govern the proce ss going forward. Because Plaintiffs are unable to adequately represent HPBA’s interests in the litigation, intervention of right is warranted in this case. III. Alternatively, HPBA Should Be Permitted To Int ervene Under Rule 24(b). In the alternative, HPBA should be permitted to int ervene in this action. Rule 24(b) permits a party, upon timely motion, to intervene w here the movant “has a claim or defense that shares with the main action a common question of la w or fact.” Fed. R. Civ. P. 24(b)(1)(B). “In order to litigate a claim on the merits under Rule 24(b), the putative intervenor must ordinarily present: (1) an independent ground for subject matt er jurisdiction; (2) a timely motion; and (3) a Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 17 of 2018

claim or defense that has a question of law or fact in common with the main action.” Equal Emp’t Opportunity Comm’n v. Nat’l Children’s Ctr., Inc. , 146 F.3d 1042, 1046 (D.C. Cir. 1998) (citation omitted). In deciding whether to grant p ermissive intervention, “the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). HPBA satisfies the first requirement that it have i ndependent grounds for subject matter jurisdiction. As explained above, HPBA meets the r equirements of Article III standing. See

supra Section I. In addition, HPBA seeks to intervene f or the purpose of enforcing EPA’s duty to timely review and revise standards under Subpart AAA. See HPBA [Proposed] Compl. for Declaratory and Injunctive Relief ¶ 1. HPBA is not “ask[ing] the district court to adjudicate an additional claim on the merits.” Equal Emp’t Opportunity Comm’n , 146 F.3d at 1046. Accordingly, to the extent existing Plaintiffs have subject matter jurisdiction to assert their claims, HPBA likewise has jurisdiction. Second, as addressed above in the context of interv ention of right, permissive intervention by HPBA meets the requirement of timel iness. See supra Section II.A. Because this case remains at only the preliminary stages of litigation, and no answer has yet been filed, HPBA has timely filed its motion for permissive int ervention in this case. Id

. Third, HPBA’s defenses to Plaintiffs’ claims involv e “questions of law and fact” that are common to the original parties. See , e.g. , Sierra Club v. Van Antwerp , 523 F. Supp. 2d 5, 10 (D.D.C. 2007) (granting permissive intervention in part based on common questions of law and fact). The factual and legal questions sought to b e addressed through HPBA’s intervention, i.e. , the status and adequacy of EPA’s efforts to review and revise the Subpart AAA standards, are the same as those implicated by Plaintiffs’ existin g claims against EPA. Compare HPBA Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 18 of 2019

[Proposed] Compl. for Declaratory and Injunctive Re lief ¶¶ 30-32 with Compl. for Declaratory and Injunctive Relief ¶¶ 41-42. Thus, HPBA’s parti cipation in the lawsuit raises common issues of both fact and law. Other factors support permissive intervention by HP BA. Neither Plaintiffs nor the EPA would be prejudiced by HPBA’s intervention in this action, as no dispositive motions have been filed, and HPBA commits to complying fully with the Court’s scheduling order. Additionally, the equities strongly favor granting of interventio n in this case, given HPBA’s considerable interest in the outcome of the litigation as the tr ade association representing the industry regulated by the standards at issue. By intervenin g in this case, HPBA can maintain the regulated community’s voice within EPA’s process an d scheduling for revision of Subpart AAA, as well as protect the integrity of the ongoing rev ision process, including HPBA’s considerable investments in research and advocacy to date. See , e.g. , Ex. A (Ferguson Decl. ¶ 7) (describing HPBA’s ongoing advocacy efforts with EPA, state, lo cal, and tribal regulators). As detailed throughout this memorandum, HPBA’s intervention in this lawsuit would allow it to actively assert its claims against EPA for failure to perfor m its mandatory duty, further its efforts to obtain national uniformity and regulatory certainty on behalf of its members, and mitigate against harm resulting from unforeseen changes to p rocesses on which HPBA has relied in the course of planning and implementing its advocacy ef forts. Furthermore, as discussed above, while both Plainti ffs and HPBA seek to enforce EPA’s duty to revise the existing regulations, HPBA’s int erests may not be adequately represented by those Plaintiffs, who ultimately seek a very differ ent substantive outcome. See supra Section II.C. Indeed, no party other than HPBA can speak t o the full impact of EPA’s inaction on Case 1:13-cv-01555-GK Document 13-1 Filed 10/31/13 Page 19 of 2020

industry, as it is HPBA’s members who directly bear the costs of compliance with Subpart AAA, and who bear the additional costs of EPA delay and the resultant regulatory uncertainty. Finally, intervention of right is not only critical to HPBA but also benefits the litigation on the whole. HPBA’s long-term and significant inv estments of time and resources into these issues render its intervention beneficial to all th e parties and to this Court, as HPBA will be able to contribute factual insights and legal arguments based on its historic on-the-ground involvement with these issues, its ongoing advocacy efforts with EPA and the states, and its direct relationships with appliance manufacturers. See Ex. A (Ferguson Decl. ¶¶ 5-7); see also Ex. B (HPBA 60-Day Notice at 1-2). Accordingly, th is Court should exercise its discretion by finding it in the interests of justice to allow HPB A to permissively intervene as plaintiff in this

case. CONCLUSION For the reasons stated above, HPBA requests that th e Court grant its Motion to Intervene as Plaintiff in this action.

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 13-1 Filed 10/31/13 Page 20 of 20