Energy Conservation Program: Energy Conservation Standards for Residential Furnaces and Commercial Water Heaters, Notice of Petition for Rulemaking

AGENCY:

Office of Energy Efficiency and Renewable Energy, Department of Energy.

ACTION:

Notice of petition for rulemaking; request for comment.

SUMMARY:

On October 18, 2018, the Department of Energy (DOE) received a petition from the American Public Gas Association (APGA), Spire, Inc., the Natural Gas Supply Association (NGSA), the American Gas Association (AGA), and the National Propane Gas Association (NPGA), collectively referred to as the “Gas Industry Petitioners,” asking DOE to: Issue an interpretive rule stating that DOE's proposed energy conservation standards for residential furnaces and commercial water heaters would result in the unavailability of “performance characteristics” within the meaning of the Energy Policy and Conservation Act of 1975, as amended (i.e., by setting standards which can only be met by condensing combustion technology products/equipment and thereby precluding the distribution in commerce of non-condensing combustion technology products/equipment) and withdraw the proposed energy conservation standards for residential furnaces and commercial water heaters based upon such findings. Through this notice, DOE seeks comment on the petition, as well as any data or information that could be used in DOE's determination whether to proceed with the petition.

DATES:

Written comments and information are requested on or before January 30, 2019.

ADDRESSES:

Interested persons are encouraged to submit comments, identified by “Energy Conservation Standards for Residential Furnaces and Commercial Water Heaters,” by any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

E-mail: ResFurnaceCommWaterHeater2018STD0018@ee.doe.gov. Include Docket No. EERE-2018-BT-STD-0018 in the subject line of the message.

Postal Mail: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. If possible, please submit all items on a compact disc (CD), in which case it is not necessary to include printed copies.

Hand Delivery/Courier: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, 950 L'Enfant Plaza SW, Suite 600, Washington, DC 20024. Telephone: (202) 287-1445. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

Docket: For access to the docket to read background documents, or comments received, go to the Federal eRulemaking Portal at: http://www.regulations.gov/docket?D=EERE-2018-BT-STD-0018.

FOR FURTHER INFORMATION CONTACT:

Mr. Eric Stas, U.S. Department of Energy, Office of the General Counsel, 1000 Independence Avenue SW, Washington, DC 20585. Telephone: (202) 586-9507. E-mail: Eric.Stas@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., provides among other things, that “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” (5 U.S.C. 553(e)) DOE received a petition from the Gas Industry Petitioners, as described in this notice and set forth verbatim below, requesting that DOE: (1) Issue an interpretive rule stating that DOE's proposed energy conservation standards for residential furnaces and commercial water heaters would result in the unavailability of “performance characteristics” within the meaning of the Energy Policy and Conservation Act of 1975 (42 U.S.C. 6291 et seq.; EPCA), as amended (i.e., by setting standards which can only be met by condensing combustion technology products/equipment and thereby precluding the distribution in commerce of non-condensing combustion technology products/equipment) and (2) withdraw the proposed energy conservation standards for residential furnaces and commercial water heaters based upon such findings. In promulgating this petition for public comment, DOE is seeking views on whether it should grant the petition and undertake an interpretive rulemaking and withdrawal of the two specified rulemaking proposals, as requested. By seeking comment on whether to grant this petition, DOE takes no position at this time regarding the merits of the suggested rulemaking or the assertions made by the Gas Industry Petitioners.

In their petition, the Gas Industry Petitioners argue that DOE misinterpreted its mandate under section 325(o)(4) of EPCA by failing to consider as a “feature” of the subject residential furnaces and commercial water heating equipment the compatibility of a product/equipment with conventional atmospheric venting systems and the ability to operate without generating liquid condensate requiring disposal via a plumbing connection. Consequently, the Gas Industry Petitioners assert that DOE's proposals would make unavailable non-condensing products/equipment with such features, which currently exist in the marketplace, in contravention of the statute. The petition makes a number of technical, legal, and economic arguments in favor of its proposed interpretation, and it points to DOE's past precedent related to space constraints and differences in available electrical power supply (and associated installation costs) as supporting its call to find that non-condensing technology amounts to a performance-related “feature.” Based upon these arguments, the Gas Industry Petitioners conclude that DOE should issue an interpretive rule treating non-condensing technology as a “feature” under EPCA, withdraw its rulemaking proposals for both residential furnaces and commercial water heaters, and proceed on the basis of this revised interpretation.

DOE welcomes comments and views of interested parties on any aspect of the petition for rulemaking.

Submission of Comments

DOE invites all interested parties to submit in writing by January 30, 2019 comments and information regarding this petition.

Submitting comments via http://www.regulations.gov. The http://www.regulations.gov webpage will require you to provide your name and contact information prior to submitting comments. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to http://www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through http://www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through http://www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that http://www.regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email, hand delivery, or postal mail. Comments and documents via email, hand delivery, or postal mail will also be posted to http://www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information in your cover letter each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (faxes) will be accepted.

Comments, data, and other information submitted electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English, and free of any defects or viruses. Documents should not include any special characters or any form of encryption, and, if possible, they should carry the electronic signature of the author.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery two well-marked copies: one copy of the document marked “Confidential” including all the information believed to be confidential, and one copy of the document marked “Non-confidential” with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time, and (7) why disclosure of the information would be contrary to the public interest.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

DOE considers public participation to be a very important part of its process for considering rulemaking petitions. DOE actively encourages the participation and interaction of the public during the comment period. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in determining how to proceed with a petition. Anyone who wishes to be added to DOE mailing list to receive future notices and information about this petition should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via e-mail at ApplianceStandardsQuestions@ee.doe.gov.

Approval of the Office of the Secretary

The Secretary of Energy has approved publication of this notice of petition for rulemaking.

October 18, 2018

BEFORE THE OFFICE OF ENERGY EFFICIENCY AND RENEWABLE ENERGY UNITED STATES DEPARTMENT OF ENERGY WASHINGTON, D.C.

Petition for Rulemaking

Energy Conservation Program: Energy Conservation Standards for Residential Furnaces

Docket Number EERE-2014-BT-STD-031; RIN No. 1904-AD20

Energy Conservation Program:

Energy Conservation Standards for Commercial Water Heaters

Docket Number EERE-2014-BT-STD-042; RIN No. 1904-AD34

Introduction

The undersigned organizations submit this petition for rulemaking under 5 U.S.C. § 553(e). As explained below, we request that the Department of Energy (“DOE”):

• Issue an interpretive rule confirming that energy conservation standards effectively limiting the market for natural gas and/or propane gas (“fuel gas”) furnaces or water heaters to products using condensing combustion technology would result in the unavailability of “performance characteristics” within the meaning of the Energy Policy and Conservation Act of 1975, as amended (“EPCA”), 42 U.S.C. § 6291 et seq., and, consistent with that determination,
• Withdraw its proposed standards for residential furnaces and commercial water heaters on the grounds of appropriate written findings as specified by 42 U.S.C. §§ 6295(0)(4) and 6313(a)(6)(B)(iii)(II), respectively.

We believe that these actions would appropriately resolve issues that have already contributed to delays in both the residential furnace and commercial water heater rulemaking proceedings, thereby facilitating a more orderly and efficient resolution of the remaining issues in these proceedings.

The basis for this petition is straight forward. The compatibility of a product with conventional atmospheric venting systems is an important product feature, as is the ability of a product to operate without generating liquid condensate requiring disposal via a plumbing connection. Residential furnaces and commercial water heaters that provide these features are generally available in the United States now. Products that use condensing combustion technology (“condensing products”) lack either one of these features. Efficiency standards that can only be achieved through the use of condensing combustion technology would therefore have the effect of rendering products with these features unavailable in the United States, a circumstance that EPCA was specifically designed to preclude.

EPCA expressly provides that DOE:

 may not prescribe an amended standard . . . if the Secretary finds (and publishes the finding) that interested persons have demonstrated by a preponderance of the evidence that a standard is likely to result in the unavailability in the United States or any product type (or class) of performance characteristics (including reliability, features, sizes, capacities, and volumes) that are substantially the same as those generally available in the United States at the time of the finding of the Secretary.

There are no material facts in dispute. In both the residential furnace and commercial water heater rulemaking proceedings, interested parties have demonstrated by a preponderance of the evidence—and DOE has itself acknowledged —that:

• The standards proposed for residential furnaces and commercial water heaters (with a limited exception for certain “small” residential furnaces) can only be achieved by condensing products;
• Condensing products lack both the ability to function with atmospheric venting systems and the ability to function without generating liquid condensate requiring disposal via a plumbing connection;
• Products that have the ability to function with atmospheric venting systems and without generating liquid condensate requiring disposal via a plumbing connection are currently available in the United States; and
• Standards that can be achieved only by condensing products would make such products unavailable.

The only issue to be resolved is whether the product features at issue are “performance characteristics” for purposes of 42 U.S.C. §§ 6295(0)(4) and 6313(a)(6)(B)(iii)(II), and they plainly are. Accordingly, DOE should issue an interpretive rule confirming that this is the case, and—consistent with that determination—should withdraw its proposed standards for residential furnaces and commercial water heaters on the basis of appropriate written findings pursuant to 42 U.S.C. §§ 6295(0)(4) and 6313(a)(6)(B)(iii)(II), respectively.

Features Precluded by the Use of Condensing Combustion Technology

Conventional fuel gas products are designed for atmospheric venting, typically through vent systems that carry exhaust gases, via buoyancy, vertically through the roof of the buildings in which they are installed. The vast majority of existing buildings and homes in which fuel gas products are installed in the United States were built with atmospheric venting systems designed to accommodate such products. Atmospherically-vented products are compatible with these existing venting systems (and with other atmospherically-vented products that use them); condensing products are not.

Gas products using condensing combustion technology provide increased thermal efficiency by extracting additional heat from combustion gases before they are vented. As a result, condensing products produce liquid condensate and cooler exhaust gases that lack sufficient buoyancy to exit a building via an atmospheric venting system. Condensing products therefore require plumbing for condensate disposal and “power” (i.e., positive pressure) venting, typically through horizontal venting penetrating an exterior building wall.

Importantly, power-vented products cannot share common vent systems with atmospherically-vented products under the prevailing national model codes. Positive pressure in such a vent system would force combustion products into occupied spaces within the building through draft hoods and other atmospheric vent system structures. For this reason, safety standards and installation codes specifically separate vented fuel gas appliances and equipment into different categories based on their venting characteristics and specify that power-vented products cannot be connected to atmospheric venting systems or share common venting systems with atmospherically-vented gas products. In addition, condensing products require plumbing for condensate disposal that other vented gas products generally do not.

As further explained below and in comments submitted previously in the residential furnace and commercial water heater rulemaking proceedings, the features condensing products lack—compatibility with existing atmospheric venting systems and the ability to operate without a plumbing connection—are extremely important to consumers. Products with these features can be installed in locations inside buildings where condensing products cannot. Most significantly, non-condensing products can replace existing atmospherically-vented products without triggering the need for expensive building modifications or premature replacement of other commonly-vented gas products. Therefore, if these features were unavailable, there would be many cases in which it would be impractical to replace existing gas products with new gas products.

The Statutory Scheme, Precedent, and Application

Energy Policy and Conservation Act

Products that offer different features are often capable of achieving different measured efficiencies. Where this is the case, there is a potential that a particular efficiency standard could be achievable for products with some features but not achievable for products with other features, in which case the standard would effectively ban products with the latter features.

Congress anticipated such situations, and it made it clear that DOE is authorized to regulate product efficiency but not to restrict the range of features that covered products can provide. In fact, Congress expressly sought to ensure “that energy savings are not achieved through the loss of significant consumer features.” EPCA expressly prohibits the adoption of an energy conservation standard if it has been shown that the standard would have the effect of eliminating a currently-available product feature from the market. 42 U.S.C. §§ 6295(o)(4) and 6313(a)(6)(B)(iii)(II). If DOE determines that a more stringent standard would be appropriate for products with specific product features, it can impose such standards for products with those features. Specifically, DOE can “establish different standards within [a] type of covered product . . . based upon performance-related features of the product.” However, DOE can do this only by creating separate product classes for products with different performance-related features and specifying different (and achievable) standards for each. 42 U.S.C. § 6295(q)(1). This statutory scheme was expressly designed “to ensure that an amended standard does not deprive consumers of product choices and characteristics, features, sizes, etc.,” and to “preclude” the adoption of standards “that manufacturers are only able to meet by adopting engineering changes that eliminate performance characteristics.” Unfortunately, that is exactly what DOE's proposed standards for residential furnaces and commercial water heaters would do.

Again, there is no dispute as to the relevant facts: DOE has acknowledged that its proposed efficiency standards can only be achieved through use of condensing combustion technology, and that those standards would effectively eliminate gas products that are compatible with atmospheric venting systems and do not require a plumbing connection. DOE has simply suggested that the elimination of such products does not constitute a loss of product features for purposes of 42 U.S.C. §§ 6295(0)(4) and 6313(a)(6)(B)(iii)(II). This suggestion is inconsistent both with EPCA's provisions and DOE's own previous determinations.

DOE Precedent

One of the ways in which DOE can avoid the adoption of standards that would eliminate available product features is to create separate product classes, with separate (and achievable) standards for products with those features. In addressing the need for separate product classes, DOE has recognized again and again that features that significantly affect the conditions under which products can be used are performance-related features for EPCA purposes; i.e., features that should be preserved rather than made “unavailable” by an energy conservation standard.

DOE has recognized different product classes for electric residential clothes dryers to address differences in product features concerning installation space constraints and differences in available electrical power supply. Similarly, DOE's decision to maintain separate product classes for “space-constrained” heat pump and air conditioning products reflects the legal conclusion that product features that resolve significant installation constraints are performance-related features providing utility that other products lack. The fact that DOE characterized the need to modify existing buildings to accommodate new products as a matter of “installation cost” did nothing to undermine that legal conclusion. The same legal conclusion is reflected in the provisions of EPCA itself: for example, EPCA provides separate product classes for residential direct heating equipment based on variations in the manner in which such products are designed to be installed.

In light of these precedents, DOE's continued failure to acknowledge that standards effectively eliminating atmospherically-vented gas products would result in a loss of performance characteristics for purposes of 42 U.S.C. §§ 6295(0)(4) and 6313(a)(6)(B)(iii)(II) would be arbitrary and capricious.

Application

The ability of a product to function without a plumbing connection is a feature that is no less important than features that affect where products will fit, what type of wiring they require, or whether they are designed to be free-standing as opposed to being installed in a wall or a floor. The ability of a product to function with atmospheric venting is an even more important feature because it enables products to be used as replacements for atmospheric-vented products without the need for building alterations or the risk of adverse impacts on other atmospheric-vented gas products tied to a common venting system.

These product characteristics are very important to the pocketbooks of many American homeowners using natural gas. Many homes with a conventional gas furnace have a commonly-vented conventional gas water heater. If standards make atmospherically-vented furnaces unavailable, furnace replacement may result in venting problems for the commonly-vented water heater, with the result that a perfectly good water heater may need to be replaced as well.

The importance of performance characteristics such as the ability of a product to operate with a building's existing infrastructure and other commonly-vented products cannot be dismissed on the grounds that the building could be modified and other appliances scrapped. It is unreasonable to characterize the lack of such performance characteristics as a mere matter of “installation costs” or to dismiss them as such. In any event, there are cases in which the features condensing products lack are necessary if a gas product is to be used at all. This can occur, for example, in scenarios involving multistory housing in which vented gas products are common-vented into a central venting system that serves multiple floors of residential units that are under different ownership. In such cases, the inability of a consumer to replace an atmospherically-vented product with another atmospherically-vented product would not merely present problems for the consumers involved; it could adversely affect the venting of common-vented products owned by other parties in the same building.

DOE's prior assertion that standards requiring the use of condensing combustion technology would not impose a loss of product “features” is based on two conflicting legal arguments. The first, as stated in the residential furnace rulemaking, is that “the consumer utility of a furnace is that it provides heat to a dwelling, and the type of venting used for particular furnace technologies does not impact that utility.” One obvious problem with this argument is that it is wrong on the facts: atmospheric-venting does impact the ability of a furnace to provide heat to a dwelling, because there are some cases in which atmospherically-vented furnaces can be used and condensing products cannot. Another is factors that limit the circumstances under which products can reasonably be used—size, for example—plainly have an impact on the utility of a product and are unmistakably within the range of “performance characteristics” that standards may not make unavailable.

The second argument (again as stated in the context of the residential furnace rulemaking) is that the only “features” that must be preserved are those that “provide unique utility to consumers beyond the basic function of providing heat, which all furnaces perform.” The argument that a “feature” must have unique utility “beyond the basic function” of a product is obviously difficult to square with the argument that a “feature” must “impact the ability of a [product] to provide” that basic function. However, the most obvious problem is that there is simply no statutory basis to assert either that a feature must have “unique utility” or that such utility must somehow be “beyond the basic function” of the product. EPCA simply states that DOE may not impose standards if it has been shown that they would likely result in unavailability of currently-available “performance characteristics (including reliability, features, sizes, capacities, and volumes).”

 The policy concern driving these meritless legal arguments has been stated by DOE as follows: Tying the concept of “feature” to a specific technology would effectively lock-in the currently existing technology as the ceiling for product efficiency and eliminate DOE's ability to address significant technological advances that could yield significant consumer benefits in the form of lower energy costs while providing the same functionality for the consumer.”

This policy concern is at odds with the policy judgment Congress made when it adopted the relevant statutory provisions. The limitations on DOE's authority to impose design choices on manufacturers and consumers were not just designed to ensure the continued availability of products having the same “functionality,” particularly if “functionality” means nothing more than the basic ability of a product to provide heat (or hot water, as the case may be). Instead, Congress expressly sought to ensure “that energy savings are not achieved through the loss of significant consumer features.” Features such as the compatibility of a product with an existing building's venting system and appliances, as well as its ability to operate without the need for a plumbing connection, are unquestionably significant to consumers. Arguments to the contrary in the pending rulemaking proceedings amount to transparent attempts to justify exactly the kind of outcome Congress intended to preclude: the adoption of standards that would achieve higher efficiency by eliminating currently available “performance characteristics” (including “features”) that are important to many purchasers.

Conclusion

DOE's rulemaking proceedings concerning standards for residential furnaces and commercial water heaters have been fatally undermined by their failure to recognize that EPCA precludes the adoption of standards that would effectively eliminate fuel gas products that do not use condensing combustion technology. Petitioners believe that prompt action to correct that failure is both warranted and necessary to facilitate any reasonably efficient path forward in those rulemaking proceedings. Accordingly, Petitioners respectfully request that DOE—after soliciting and appropriately considering public comment on this Petition—promptly take final action by:

• Issuing an interpretive rule confirming that energy conservation standards limiting the market for natural gas and/or propane gas furnaces or water heaters to products using condensing combustion technology would result in the unavailability of “performance characteristics” within the meaning of 42 U.S.C. §§ 6295(0)(4) and 6313(a)(6)(B)(iii)(II), and
• Withdrawing its proposed standards for residential furnaces and commercial water heaters on the grounds of appropriate written findings as specified by 42 U.S.C. §§ 6295(0)(4) and 6313(a)(6)(B)(iii)(II), respectively.

Further deliberation in the two pending rulemaking proceedings can then occur, with appropriate consideration—as EPCA requires—of any need for separate standards (and separate product classes) for products that use condensing combustion technology and those that do not.

Respectfully submitted,

Mark Darrell,

Senior VP, General Counsel & Chief Compliance Officer,

Spire Inc., 700 Market Street, St. Louis, MO 63101

Email: mark.darrell@spireenergy.com.

Dena E. Wiggins,

President and CEO, Natural Gas Supply Association, 1620 Eye St NW, Suite 700, Washington, D.C. 20006, 202.326.9300

E-mail: dena.wiggins@ngsa.org.

Mike Caldarera,

Vice President, Regulatory & Technical Services, National Propane Gas Association, 1899 L Street, NW, Ste 350, Washington, D.C. 20036, (202) 466-7200

Email: mcaldarera@npga.org.

Bert Kalisch,

President & CEO, American Public Gas Association, 201 Massachusetts Avenue, NE, Suite C-4, Washington, DC 20002, 202.464.2742

Email: bkalisch@apga.org.

Mike Murray,

General Counsel, American Gas Association, 400 North Capitol Street NW, Suite 450, Washington, DC 20001, 202.824.7000

Email: mmurray@aga.org.