November 6, 2015 - APGA Comments on DOE NODA

11-06-2015 14:07

BEFORE THE OFFICE OF ENERGY EFFICIENCY AND RENEWABLE ENERGY UNITED STATES DEPARTMENT OF ENERGY WASHINGTON, D.C. Docket Number EERE-2014-BT-STD-0031/ RIN NO. 1904-AD20 SUPPLEMENTAL COMMENTS OF THE AMERICAN PUBLIC GAS ASSOCIATION ON THE NOTICE OF DATA AVAILABILITY November 6, 2015 The American Public Gas Association (APGA) submits these comments in response to the October 23, 2015 notice in the Federal Register (80 Fed. Reg. 64370) reopening of public comments in this proceeding on the notice of data availability (NODA) published by the Office of Energy Efficiency and Renewable Energy, Department of Energy (DOE) on September 14, 2015 (80 Fed. Reg. 55038).*1 In the NODA, DOE indicated that it had “completed a provisional analysis of the potential economic impacts and energy savings that could result from promulgating amended energy conservation standards for residential non-weatherized gas furnaces (NWGFs) that include two product classes defined by input capacity …” (Id.) DOE asked for “comments, data, and information regarding this analysis” (id. at 55045), such comments to be filed by October 14, 2015. On September 15, 2015, the American Gas Association (AGA) and APGA submitted a data request (Joint Request *2), noting that filing meaningful comments “is impossible without being provided additional data by DOE underlying and explaining the NODA and the accompanying spreadsheets, and then having a technical conference to discuss the data.” (Joint Request at 1. *3) The Joint Request asked DOE for an extension of time to review and analyze the requested data before filing comments. DOE declined to respond to the Joint Request before the October 14, 2015 DOE deadline for initial comments, so APGA (and others) filed comments (including an analysis by the Gas Technology Institute) in accordance with the terms of the NODA on October 14. APGA pointed out in its comments, among other things, that it was handicapped in its analysis by DOE’s refusal to provide the requested data, but nonetheless, based on the data accompanying the NODA, did point out some of the serious shortcomings in the NODA. APGA’s comments were posted to the DOE website on October 16.*4 On October 15 (at around 11:43 a.m.), APGA was served electronically with a DOE email indicating that DOE “has issued a pre-publication Federal Register notice reopening the comment period regarding the Notice of Data Availability (NODA) concerning residential furnaces. The comment period is reopened for an additional 14 days after publication in the Federal Register. (October 15, 2015).” Later on October 15 (at around 8:16 p.m.), APGA was served electronically with a DOE email indicating that DOE was posting “documents regarding the notice of data availability for energy conservation standards for residential furnaces.” The pre-publication notice indicated that DOE was reopening the public comment period in response to the Joint Request from APGA and AGA (see 80 Fed. Reg. at 64371). The prepublication did not share with the reader why DOE declined to inform APGA/AGA (or the public generally) before the October 14 comment deadline that it was intending to provide the requested data and extend the comment deadline. Nor did the pre-publication notice address why certain parties allied with the DOE position on furnace rules seemed to be aware of the deadline extension prior to its issuance. And, finally, the pre-publication notice did not address the serious due process ramifications of posting on October 16 APGA’s timely-filed comments so that the parties allied with DOE could respond to those comments on November 6 in response to the pre-publication notice. DOE obviously knew well ahead of the October 14 deadline that it was going to produce additional data regarding the NODA in response to the Joint Request and to extend the deadline for comments, as such decisions are not made on the spur of the moment. It also knew that given the October 14 deadline set forth in the NODA, parties like APGA, unless timely informed of an extension, would be spending their limited resources on legal and analytical input so that comments could be filed on the October 14 date designated in the NODA. Yet, DOE remained silent (as least as to those parties seeking the data and seeking more time), knowing full well that its actions would prejudice those parties that filed comments timely. Unfortunately, it appears to APGA that these actions by DOE were premeditated and, as noted, are highly prejudicial to APGA and like-situated parties; APGA has expressed these sentiments to the DOE Secretary in a letter dated October 22, 2015 (attached). APGA has also determined that the expenditure of additional of its limited resources at this time to conduct analyses using the data released on October 15 would not be an efficient use of its limited resources, as DOE appears determined to pursue a pre-set course without regard to the data in the record. Since insanity is often defined as doing the same thing over and over again and expecting a different outcome *5 and since DOE seems impervious to data showing pronounced flaws in its life-cycle cost analysis, APGA will defer any further analyses until a supplemental NOPR is issued in this proceeding, accompanied by the necessary technical support document. Respectfully submitted, AMERICAN PUBLIC GAS ASSOCIATION By: Bert Kalisch APGA President and CEO November 6, 2015 Notations: *1 APGA is the national association for publicly-owned natural gas distribution systems. There are approximately 1000 public gas systems in 37 states, and over 700 of these systems are APGA members. *2 Http://!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=EERE- 2014-BT-STD-0031-0168. *3 In addition, the Air-Conditioning, Heating, and Refrigeration Institute (AHRI) submitted a data request on September 15. *4 Http://!docketBrowser;rpp=25;po=50;dct=PS;D=EERE-2014-BT-STD- 0031-0180. *5 This definition is often attributed to Albert Einstein, though that attribution appears problematic.

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