By Chuck White, Vice President of Regulatory Affairs
The U.S. Department of Energy (DOE) was recently served with a 60-day letter notifying the Department of a party’s intent to litigate. The Natural Resources Defense Council (NRDC) and a group of state attorneys general have separately filed letters regarding the DOE’s failure to meet mandatory deadlines for reviewing and amending product efficiency standards pursuant to the Energy Policy and Conservation Act (EPCA) in some 26 rulemakings.
The DOE has now served notice of the filers’ intent to litigate and that, further, they would seek a court order compelling DOE action on standards rulemaking proceedings for which existing statutory deadlines have passed. Of particular interest will be the argument that the residential furnace and commercial water heater rulemakings were all but complete by the end of 2016 and DOE normally would have issued final rules by now. It is possible that the court will order prompt resolution and publication of this and other rules.
The “gas furnace rule” would eliminate non-condensing gas furnaces (an exception was included for very small gas furnaces) and commercial gas water heaters from the market. This rule was the subject of a petition from a Gas Industry Coalition that argued the proposed rule lacks recognition of the features and benefits for non-condensing products. The DOE subsequently agreed with the petition but made no changes to the proposed rule. The Department stipulated that changes would come later from interpretive language. The industry believes the use of interpretive language lacks the certainty of a formal rulemaking and has requested that the DOE pull back the rule and restart the process with full industry participation.
PHCC previously supported the Gas Industry Petition and signed on to a subsequent letter asking the DOE to withdraw the residential furnace and commercial water heater rulemakings based on a number of flaws. The industry believes it is important to respond to the 60-day letters by renewing the request for withdrawal of the pending proposed rules. It is important to build the case demonstrating the hardship installations that will be common if condensing products are the only option on the market.
Vice President of Regulatory Affairs , PHCC-National Association