Federal Register / Vol. 75, No. 194 / Thursday, October 7, 2010 / Notices 62115 

DEPARTMENT OF ENERGY 

[Docket Number EERE–BT–PET–0024] 

Energy Conservation Program for 

Consumer Products: Commonwealth 

of Massachusetts Petition for 

Exemption From Federal Preemption 

of Massachusetts’ Energy Efficiency 

Standard for Residential NonWeatherized Gas Furnaces 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notice of Denial of a Petition for 

Waiver from Federal Preemption. 

SUMMARY: This notice announces the 

U.S. Department of Energy’s (DOE) 

denial of a petition filed by the 

Commonwealth of Massachusetts 

seeking an exemption from Federal 

preemption of certain energy 

conservation standards affecting 

residential non-weatherized natural gas 

furnaces. 

DATES: A request for reconsideration of 

the denial must be received by DOE not 

later than November 8, 2010. 

ADDRESSES: A request for 

reconsideration must be submitted, 

identified by docket number EERE–BT– 

PET–0024, by one of the following 

methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

2. E-mail: 

MAExemptPetition@ee.doe.gov. Include 

either the docket number EERE–BT– 

PET–0024, and/or ‘‘Massachusetts 

Petition’’ in the subject line of the 

message. 

3. Mail: Ms. Brenda Edwards-Jones, 

U.S. Department of Energy, Building 

Technologies Program, Mailstop EE–2J, 

Room 1J–018, 1000 Independence 

Avenue, SW., Washington, DC 20585– 

0121. Please submit one signed original 

paper copy. 

4. Hand Delivery/Courier: Ms. Brenda 

Edwards-Jones, U.S. Department of 

Energy, Building Technologies Program, 

Room 1J–018, 1000 Independence 

Avenue, SW., Washington, DC 20585– 

0121. 

5. Instructions: All submissions 

received must include the agency name 

and docket number for this proceeding. 

For detailed instructions on submitting 

comments and additional information 

on the proceeding, see section II. C of 

this document (Submission of 

Comments). 

Docket: For access to the docket to 

read background documents, or 

comments received, go to the Federal 

eRulemaking Portal at 

www.regulations.gov. In addition, 

electronic copies of the Petition are 

available online at DOE’s Web site at the 

following URL address: http:// 

www.eere.energy.gov/buildings/ 

appliance_standards/ 

state_petitions.html. 

FOR FURTHER INFORMATION CONTACT: 

Mohammed Khan, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121, (202) 586– 

7892, or e-mail: 

Mohammed.Khan@ee.doe.gov. 

Michael Kido, U.S. Department of 

Energy, Office of General Counsel, GC– 

71, 1000 Independence Avenue, SW., 

Washington, DC 20585, (202) 586–8145, 

e-mail: Michael.Kido@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Summary of Notice 

II. Background 

A. Applicable Legal Standard 

B. Previous Preemption Waiver Requests 

III. Massachusetts’ Petition Summary 

IV. DOE Analysis and Discussion 

A. Massachusetts Has More Heating 

Degree-Days than the National Average 

B. Massachusetts Has Higher Gas Rates 

than the Nation as a Whole 

C. Massachusetts Residential Heating 

Loads Compete with Power Plant Loads 

D. The High Percentage of Rental Housing 

Creates Market Barriers 

E. Massachusetts Has a Unique Set of 

Statutes and Policies Promoting 

Increased Energy Efficiency and 

Reductions in Greenhouse Gas Emissions 

F. Potential Impacts on Manufacturers 

G. Potential Impacts on Consumers from 

Installation Issues 

H. Current Energy Conservation Standards 

Rulemaking and the Consensus 

Agreement 

V. Conclusion 

VI. Denial 

VII. Approval of the Office of the Secretary 

I. Summary of Notice 

This notice addresses a petition 

received by the U.S. Department of 

Energy (DOE) regarding a request from 

the Commonwealth of Massachusetts 

(‘‘Massachusetts,’’ ‘‘the Commonwealth,’’ 

or, in context, ‘‘the State’’) for a waiver 

from Federal preemption of a State law 

pertaining to the energy efficiency of a 

certain type of consumer product. 

Specifically, Massachusetts sought an 

exemption to permit it to set a minimum 

efficiency level for non-weatherized 

natural gas furnaces that would exceed 

the stringency prescribed by the 

minimum Federal level set by DOE. 

After carefully considering the 

Commonwealth’s request, supporting 

materials accompanying the request, 

submitted comments, and the current 

rulemaking activities underway that 

would be likely to have a direct impact 

on the issues raised in the petition, DOE 

is declining to grant this request. 

II. Background 

On October 6, 2009, DOE received a 

petition from Massachusetts (dated 

October 1, 2009) seeking a preemption 

waiver to permit it to impose a 90- 

percent annual fuel utilization 

efficiency (‘‘AFUE’’) requirement on all 

natural gas furnaces sold within the 

State. (Commonwealth of 

Massachusetts, No. 4.1) AFUE is a 

thermal efficiency measurement used to 

rate combustion equipment such as 

furnaces and represents the actual 

season-long average efficiency of a 

particular piece of equipment. Under 

the Energy Policy and Conservation Act 

of 1975, as amended (EPCA), any local 

or state regulation concerning the 

energy efficiency or energy use of a 

product covered under EPCA is 

preempted if DOE has established an 

energy conservation standard for that 

product. States may seek a waiver from 

preemption provided that certain 

criteria are met. See 42 U.S.C. 

6297(d)(5). In this instance, if DOE were 

to grant the waiver, all non-weatherized 

natural gas furnaces sold in 

Massachusetts would need to satisfy a 

90-percent AFUE level starting three 

years after the publication of the 

decision by DOE (i.e., approximately 

October 2013). (The three-year lead time 

is a statutory requirement under 42 

U.S.C. 6297(d)(5) that can be extended 

to a period of five years if DOE 

determines that retooling, redesign, or 

distribution burdens merit the 

additional time.) The current Federal 

standards require that these products 

satisfy an AFUE level of 78%. 10 CFR 

430.32(e). 

In support of its petition, 

Massachusetts provided supplemental 

information, including a report prepared 

by Optimal Energy, Inc. (‘‘the Optimal 

Report’’). This supplemental information 

consisted of the relevant text setting out 

the furnace efficiency requirements that 

the Commonwealth proposed to adopt, 

the Commonwealth’s energy plan, a 

projected forecast of natural gas furnace 

sales, an analysis of the 

Commonwealth’s energy situation, and 

the projected impacts of other, nonregulatory-based alternatives. DOE 

published a notice announcing the 

receipt of this petition and to solicit 

public comment. 75 FR 4548 (Jan. 28, 

2010). As required under EPCA, the 

agency provided the public with a 

reasonable opportunity to provide 

comments (in this instance, 60 days) 

and a subsequent rebuttal period of 30 


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62116 Federal Register / Vol. 75, No. 194 / Thursday, October 7, 2010 / Notices 

days, which closed on July 7, 2010. 75 

FR 32177 (June 7, 2010). 

The agency received comments from 

19 different organizations and the 

Commonwealth of Massachusetts. 

Commenters included local 

governments (the City of Boston, 

including separate comments filed by 

the City of Boston’s Environmental and 

Energy Services, and the City of 

Cambridge), energy and consumer 

advocacy groups (joint and individual 

comments filed by Environment 

Northeast (ENE), the Consumer 

Assistance Council, the Massachusetts 

Consumers’ Council, the Massachusetts 

Consumers’ Coalition, and the 

Massachusetts Public Interest Research 

Group (MASSPIRG); Conservation Law 

Foundation; Appliance Standards 

Awareness Project (ASAP); National 

Consumer Law Center (NCLC); 

Northeast Energy Partnership (NEEP); 

Massachusetts Climate Action Network; 

and the Massachusetts Union of Public 

Housing), industry organizations (AirConditioning, Refrigeration, and Heating 

Institute (AHRI) and American Gas 

Association (AGA)), utilities (Bay State 

Gas Company; Berkshire Gas; 

Nationalgrid; the New England Gas 

Company; NSTAR Electric Gas; and 

Unitil), and others (the Cape Light 

Compact) (an inter-municipal regional 

energy services organization). The 

agency has reviewed and docketed these 

materials. See http:// 

www.regulations.gov (search under 

‘‘DOE’’ and enter ‘‘PET–0024’’). 

In general, energy and consumer 

advocacy groups, as well as local 

governments and utility companies, 

supported the petition. These 

commenters stated their collective belief 

that Massachusetts faces ‘‘unusual and 

compelling’’ energy-related 

circumstances due to its geography, 

climate, and energy markets. (ENE, No. 

6 at pp. 1–2; the Consumer Assistance 

Council, the Massachusetts Consumers’ 

Council, the Massachusetts Consumers’ 

Coalition, and MASSPIRG, No. 7 at pp. 

2–3; Bay State Gas Company, No. 8 at 

pp. 2–3; the Conservation Law 

Foundation, No. 11 at pp. 2–3; NEEP, 

No. 13 at pp. 2–3; the Massachusetts 

Climate Action Network, No. 14 at pp. 

2–3; the Cape Light Compact, No. 15 at 

p. 1–2; the City of Bost on, No. 16 at pp. 

1–2; the City of Cambridge, No. 17 at p. 

1; the Massachusetts Union of Public 

Housing, No. 18 at pp. 1–2; the City of 

Boston Environmental and Energy 

Services, No. 20 at pp. 1–2; 

Nationalgrid, No. 26.1 at pp. 1–2; NCLC, 

No. 25 at pp. 1–3; Unitil, No. 24.1 at pp. 

1–2; Berkshire Gas, No. 27 at pp. 1–2; 

NSTAR Electric Gas, No. 28 at pp. 1–2; 

and the New England Gas Company, No. 

29 at p. 1) 

AHRI and AGA opposed the petition. 

AHRI held the view that the 

Massachusetts waiver fails to satisfy the 

waiver justification criteria set forth in 

EPCA and presented a variety of 

arguments in response to Massachusetts’ 

claims. (AHRI, No. 9 at pp. 2–6) 

Specifically, AHRI noted that: (1) DOE 

should proceed with the current energy 

conservation standards rulemaking for 

residential furnaces and adopt the 

consensus agreement presented to DOE 

by certain industry and energyefficiency organizations; (2) 

Massachusetts does not have unusual or 

extreme climates; (3) Massachusetts 

does not have any projected shortage of 

natural gas; (4) more stringent furnace 

standards for Massachusetts should not 

be allowed to override preemption of 

the Federal standards; and (5) the 

petition overstates the energy savings 

that would result from granting the 

waiver request and does not consider 

the high percentage of condensing 

furnaces already shipped to 

Massachusetts. (AHRI, No. 9 at pp. 3–4) 

In addition, AHRI questioned whether 

the waiver petition applied to other 

types of residential heating equipment, 

including oil-fired furnaces, gas-fired 

boilers, and oil-fired boilers. 

Specifically, AHRI pointed out that the 

petition refers to the Commonwealth’s 

furnace efficiency regulation, which 

AHRI believes encompasses other 

product classes of residential furnaces. 

(AHRI, No. 9 at p. 1) DOE notes that the 

petition centers on a 90-percent AFUE 

standard for natural gas furnaces. 

Consequently, based on the discussion 

presented in the petition, DOE believes 

that the petition applies only to this one 

particular product class of residential 

furnaces. 

Similarly, AGA also opposed the 

petition. It asserted that DOE should 

deny the petition and proceed with the 

current energy conservation standards 

rulemaking for residential furnaces as 

the more appropriate means to address 

the issues raised by AGA in response to 

the petition. AGA specifically pointed 

out the potential impacts to 

Massachusetts consumers seeking to 

replace their furnaces and noted that 

consumers would likely face additional 

costs to vent the condensing furnace to 

permit safe operation in the field. (AGA, 

No. 12 at pp. 2–4) Implied in this 

comment is AGA’s view that using a 

condensing furnace system is the only 

way for a furnace manufacturer to meet 

a 90-percent AFUE level. (A condensing 

furnace system is one that recovers more 

heat from the combustion products such 

that the water vapor in the exhaust 

condenses.) 

A. Applicable Legal Standard 

To obtain a waiver from Federal 

preemption, a State must meet the 

specified criteria laid out in 42 U.S.C. 

6297(d)(1). In particular, a State must 

face ‘‘unusual and compelling’’ State or 

local energy interests in order to obtain 

a preemption waiver. For purposes of 

meeting this requirement, a State needs 

to demonstrate that these interests are 

‘‘substantially different’’ in nature or 

magnitude from those prevailing in the 

United States generally and that the 

costs, benefits, burdens, and reliability 

of energy savings that would result from 

the State regulation make that regulation 

preferable or necessary when measured 

against the costs, benefits, burdens, and 

reliability of alternative approaches to 

energy savings or production. (42 U.S.C. 

6297(d)(1)(C)) By statute, these factors 

are to be evaluated within the context of 

the State’s energy plan and forecast. Id. 

B. Previous Preemption Waiver Requests 

DOE previously addressed 

preemption waiver issues in two 

contexts. The first dealt with a waiver 

request related to standards for 

residential clothes washers. See 71 FR 

78157 (Dec. 28, 2006) (denying a 

California petition seeking a waiver 

from preemption for standards related to 

residential clothes washers). The second 

instance involved amended energy 

conservation standards for furnaces and 

boilers. See 71 FR 59204, 59209–10 

(Oct. 6, 2006) (notice of proposed 

rulemaking addressing the preemption 

waiver factors and noting the possibility 

of contiguous States availing themselves 

of the preemption waiver provision to 

help establish standard levels tailored to 

their particular circumstances while 

helping to lessen manufacturer burdens) 

and 72 FR 65136, 65150–52 (Nov. 19, 

2007) (final rule declining to develop 

separate standards based on geography 

due to an absence of statutory authority 

but explaining how multiple contiguous 

States could use the waiver process to 

create a regionally-based standard). In 

both instances, the agency explained 

how a petitioning State could help 

demonstrate that it meets the statutory 

criteria to obtain a waiver from 

preemption. 

In the case of the California petition, 

the State sought a waiver to enable it to 

set more stringent standards for 

residential clothes washers. DOE denied 

that petition, citing three primary 

reasons: (1) The petition did not provide 

DOE with sufficient information to 

enable the agency to promulgate a final 

rule that would comply with the 


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scheduling requirements prescribed 

under EPCA; (2) the petition did not 

establish by a preponderance of the 

evidence that the State faced unusual 

and compelling circumstances as 

contemplated under the statute; and (3) 

other interested parties who commented 

on the petition sufficiently 

demonstrated by a preponderance of the 

evidence that the State’s regulation 

would likely result in the unavailability 

of a class of residential clothes washers 

in California. Although the State filed 

suit over this denial and DOE’s decision 

was ultimately vacated, see California 

Energy Comm’n v. DOE, 585 F.3d 1143 

(9th Cir. 2009), the Court in that case 

did not address whether the information 

furnished by the State, if evaluated, 

would have satisfied the statutory 

criteria. See id. at 1153. 

DOE also addressed the application of 

waivers in its 2007 rulemaking 

considering amended energy 

conservation standards for furnaces. 

That rulemaking occurred prior to the 

enactment of the Energy Independence 

and Security Act of 2007 (EISA 2007), 

Public Law 110–140 (Dec. 19, 2007), 

which granted DOE with the authority 

to establish geographically-based 

regional standards for furnaces. EISA 

2007, sec. 306(a). In the 2007 

rulemaking, DOE explained that in 

evaluating a State’s supporting 

evidence, the agency would consider 

whether regional climatic effects would 

have a significant impact on the 

technological feasibility and economic 

justifiability of a particular energy 

conservation standard. DOE noted that 

those states having higher-than-average, 

population-weighted heating degree 

days ‘‘would seem to have the best 

prospects’’ for demonstrating the 

presence of ‘‘unusual and compelling’’ 

interests required under EPCA. 71 FR at 

59209. DOE also offered other examples 

of how a State might be able to satisfy 

these criteria. Id. at 59210. Possible 

factors included identifying the 

saturation of homes with products that 

already satisfy the higher standard being 

sought and the existence of any 

subsidies and other incentives currently 

offered by the State and to show how 

mandatory regulations would be 

preferable to these current programs. 

Additionally, DOE explained that 

States seeking a waiver would need to 

address the extent of potential impacts 

on manufacturers—specifically, the 

likelihood of cost increases of 

manufacturers, distributors, and others. 

The agency noted that one way of 

addressing this requirement would be to 

show how current shipments to the 

petitioning State already vary from 

current DOE-prescribed efficiency 

levels. Id. 

Through its accompanying 

attachments, Massachusetts provided 

supplemental information to help 

support its view that it faces unusual 

and compelling circumstances. These 

attachments, along with the 

accompanying petition, attempted to 

address each element noted above. 

III. Massachusetts’ Petition Summary 

The Massachusetts petition makes 

several points in favor of a waiver from 

Federal preemption. 

First, the petition claims that 

Massachusetts experiences more heating 

degree days than the nation as a whole. 

A heating degree day (HDD) is an index 

that reflects the demand for energy 

required to heat a home or business. 

HDDs compare the average outdoor 

temperature to a standard of 65 degrees 

Fahrenheit. The heating requirements 

for a particular structure at a specific 

location are directly proportional to the 

number of HDDs at that location. The 

more extreme the temperature, the 

higher the degree-day number and the 

more energy needed for in-door space 

heating. Massachusetts contends that it 

exceeds the national average of HDDs by 

approximately 50%. (Mass. Petition, No. 

4 at 4) 

Second, the petition contends that the 

rates of natural gas prices within the 

Commonwealth are higher than the 

Nation as a whole. According to its 

supplemental information, natural gas 

price rates in Massachusetts are 

approximately 20% higher than the 

median and average prices found 

throughout the United States as a whole. 

(Mass. Petition (Attachment D), at 3–4). 

Third, the petition states that its 

residential heating loads compete with 

power generation loads. In other words, 

the demand for residential heating faces 

competition from the demands of 

natural gas-fired electric generators. In 

the Commonwealth’s view, because 

natural gas supplies are scarce, in part, 

because Massachusetts depends on 

natural gas to produce electricity, the 

amount of gas available for residential 

heating is limited by the demands of 

electricity generating plants. These 

demands would then cause residential 

consumers to face the prospect of 

potentially higher prices as utilities that 

rely on natural gas use this fuel in 

increased amounts to generate 

electricity. 

Fourth, the petition argues that 

Massachusetts has a higher percentage 

of rental housing than the rest of the 

United States. In its view, this fact 

creates market barriers that prevent the 

introduction of more efficient furnaces. 

As a result, those individuals who rent 

their residences are less likely to benefit 

from the introduction of more efficient 

furnaces (e.g. lower utility bills) because 

of their higher costs when compared to 

less efficient (but Federally-compliant) 

furnaces and the unwillingness of 

owners to pay these initial up-front 

costs. In effect, Massachusetts argues 

that without the mandatory introduction 

of more energy efficient furnaces, these 

consumers, who are more likely to be 

price sensitive to utility price increases 

than individuals who own their 

residences, will be more likely to face 

increased utility costs as natural gas 

prices rise. 

Fifth, the petition notes that the 

statutory framework and policies put 

into place by Massachusetts, which are 

designed in part to promote increased 

energy efficiency and reduce 

greenhouse gas emissions, have helped 

to create ‘‘unusual and compelling 

interests’’ because a decrease in natural 

gas consumption is necessary to help 

satisfy these State-imposed 

requirements. Examples of these 

requirements cited by Massachusetts 

include its Global Warming Solutions 

Act (2008 Mass. Acts, Ch. 298) and 

Clean Communities Act (2008 Mass. 

Acts, Ch. 169). These laws, among other 

things, required Massachusetts to take 

steps to improve energy efficiency and, 

in collaboration with other States, to 

reduce greenhouse gas emissions. In 

short, Massachusetts asserts that it 

needs a 90-percent AFUE standard to 

help it meet its own self-imposed 

obligations under these laws. 

IV. DOE Analysis and Discussion 

In its petition for waiver, 

Massachusetts cited five ‘‘interests/ 

characteristics’’ to bolster its claim of 

‘‘unusual and compelling interests.’’ 

These five areas are addressed below 

with the most recent statistics compiled 

from the Energy Information 

Administration’s (EIA) State Energy 

Data System (SEDS). See http:// 

www.eia.doe.gov/emeu/states/ 

_seds.html. DOE used the EIA data to 

makes its comparisons because EIA 

collects the same data for all states, 

including Massachusetts, which allows 

for consistent cross-comparisons 

between individual States and national 

averages. 

A. Massachusetts Has More Heating 

Degree-Days Than the National Average 

DOE agrees that Massachusetts 

generally experiences more heating 

degree-days (HDDs) than the national 

average. In 2008, Massachusetts 

experienced 38-percent more heating 

degree-days than the national average. 


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The petition points to the Optimal 

Report and notes that ‘‘there is a direct 

correlation between HDD and fuel use.’’ 

However, even with 38-percent more 

HDDs, Massachusetts residential natural 

gas customers consumed only 7 percent 

more natural gas per household than the 

national average. By comparison, in the 

same year, Connecticut experienced 30- 

percent more HDDs than the national 

average, and its residents consumed 17 

percent more natural gas on a per 

residential customer basis. While 

Massachusetts generally experiences 

more HDDs than the U.S. average, the 

available data indicate that the weather 

has far less influence on its residential 

natural gas use than in neighboring 

states. In fact, the EIA data indicate that 

less than half (44 percent) of 

Massachusetts homes rely on natural gas 

for space heating. Massachusetts ranks 

25th highest in natural gas use per 

residential customer, and 15th highest 

in total gas consumed by residences. 

These factors suggest that energy 

efficiency, among other factors, results 

in Massachusetts residents using natural 

gas much less intensively than states 

with similar climates. 

B. Massachusetts Has Higher Gas Rates 

Than the Nation as a Whole 

DOE agrees with Massachusetts in 

that the natural gas rates seen by 

consumers are higher than the U.S. 

average. Higher gas rates are, in part, 

responsible for Massachusetts ranking 

9th highest in natural gas expenditures 

per residential customer. DOE compared 

the citygate prices, which track the price 

of the natural gas at the point which a 

distributing gas utility receives gas from 

a natural gas pipeline company or 

transmission system, to the residential 

prices published by EIA. For this 

comparison, DOE used a time series of 

data from EIA spanning January 2010 to 

June 2010. While DOE found there was 

only a 3 percent increase in the citygate 

price of natural gas supplied to 

Massachusetts as compared to the 

national average, the residential prices 

over the same period were 30 percent 

higher than the national average. In 

addition, Massachusetts ranked 10th 

highest in 2008 in percentage markup in 

residential natural gas rates in the U.S. 

at 67 percent, compared to the U.S. 

average of 51 percent. While DOE is 

unable to point to a specific cause for 

these pricing differences, these data 

suggest that factors (such as taxes and 

related surcharges) rather than natural 

gas prices alone, likely play a role in 

affecting the prices consumers pay for 

natural gas in Massachusetts. (Natural 

gas pricing data from EIA are available 

at: http://www.eia.gov/dnav/ng/ 

ng_pri_sum_dcu_nus_m.htm.) 

C. Massachusetts Residential Heating 

Loads Compete With Power Plant Loads 

While residential heating loads in 

Massachusetts compete with current 

power plant loads, this fact is mitigated 

by the fact that 44 percent of 

Massachusetts homes are heated using 

natural gas (compared to over 51 

percent for the Nation as a whole). 

Approximately 40 percent of the 

electricity used in Massachusetts is 

generated from natural gas (compared to 

only 17 percent for the Nation); 

however, the volume of natural gas used 

in Massachusetts to generate this 

electricity ranks the State as the 12th 

highest in volume. Furthermore, three of 

the Nation’s ten liquefied natural gas 

(LNG) terminals are located in 

Massachusetts, which bolsters the 

Commonwealth’s ability to supply 

natural gas relative to other areas of the 

country. (See the EIA State Energy 

Profiles at http://www.eia.gov/state/ 

state_energy_profiles.cfm?sid=MA and 

natural gas consumption data http:// 

www.eia.gov/dnav/ng/ 

ng_cons_sum_dcu_nus_m.htm.) 

D. The High Percentage of Rental 

Housing Creates Market Barriers 

While Massachusetts has a significant 

percentage of rental housing, rental 

houses are smaller (apartments) and 

require less fuel on a per unit basis. EIA 

data from 2005 (RECS 2005) suggest that 

multifamily housing units in New 

England that rely on natural gas 

furnaces for heating purposes consumed 

22 percent less natural gas than the 

average for all natural gas furnaceequipped houses in New England. 

Furthermore, renters in multifamily 

housing in the U.S. used 22 percent less 

natural gas for space heating per unit in 

2005 than did owners. These facts 

indicate that multifamily units, which 

comprise the majority of the rental 

market, use significantly less natural gas 

per unit. Consequently, DOE believes 

the available data seem to show that 

renters spend less annually on natural 

gas and would be less impacted by a 90- 

percent AFUE standard than residents 

who own their homes. Consequently, 

renters are likely to see smaller benefits 

from the granting of the waiver than 

those projected by Massachusetts. 

E. Massachusetts Has a Unique Set of 

Statutes and Policies Promoting 

Increased Energy Efficiency and 

Reductions in Greenhouse Gas 

Emissions 

DOE recognizes that Massachusetts 

may have certain self-imposed legal 

requirements to improve energy 

efficiency and reduce greenhouse gas 

emissions. The imposition of these 

requirements, however, does not create 

circumstances that would otherwise 

enable Massachusetts to demonstrate 

that it faces unusual and compelling 

interests that would justify a waiver 

from Federal preemption. As DOE 

indicated previously, the types of 

interests of most relevance under the 

statute are those that are of a 

substantially different nature or 

magnitude and that make regulation 

preferable to other measures when 

considering the costs, benefits, burdens 

and reliability of the projected energy 

savings. (42 U.S.C. 6297(d)(1)(C)) State 

legal requirements to improve energy 

efficiency and reduce greenhouse gas 

emissions, which any State could 

impose on itself, do not satisfy these 

criteria. 

DOE does not make this decision 

lightly. Were DOE to make its decision 

based on these circumstances, any State 

could conceivably pass legislation that 

would impose stringent energy 

efficiency requirements and argue that it 

faced unusual and compelling 

circumstances. Such an outcome would 

undermine the general purpose behind 

a broad Federal regulatory framework 

for energy efficiency standards. See 

Geier v. American Honda Motor 

Company, 529 U.S. 861, 870 (2000) 

(declining to apply savings clauses 

where doing so would upset careful 

regulatory schemes established by 

Federal law). Accordingly, in order to 

give meaning to the authority granted by 

Congress to permit a waiver from 

preemption to individual States, the 

circumstances faced by a given State 

must be sufficiently unusual and 

compelling as to warrant an exception 

from the regulatory scheme developed 

under Federal law. 

F. Potential Impacts on Manufacturers 

DOE examined the potential impacts 

on manufacturers if the Massachusetts 

petition were granted. Massachusetts 

argued that there will be no impact to 

the furnace manufacturing industry 

doing business in Massachusetts. AHRI 

points out that 80 percent of the average 

annual residential gas furnace 

shipments going to the state of 

Massachusetts were already at or above 

90-percent AFUE. (AHRI, No. 19 at p. 5) 

Using the voluntary measures already in 

place, these numbers point to the ability 

of manufacturers to readily produce, 

market, and sell residential gas furnaces 

in Massachusetts that satisfy the 90- 

percent AFUE level that the 

Commonwealth seeks to make 

mandatory. This situation suggests that 


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rather than having an adverse impact on 

the industry, applying a higher level 

may have little or no impact on the 

industry’s ability to manufacture and 

sell its furnaces in Massachusetts. These 

numbers are consistent with national 

data, which show increasing national 

shipments of high efficiency furnaces. 

(See DOE’s shipments model from the 

2007 rulemaking Chapter 9 of the final 

rule technical support document) at 

http://www1.eere.energy.gov/buildings/ 

appliance_standards/residential/pdfs/ 

fb_fr_tsd/chapter_9.pdf.) These data are 

also supported by Federal ENERGY 

STAR program data confirming that 

high efficiency furnaces are readily 

available in the market. (See the 

ENERGY STAR product list for 

residential furnaces at http:// 

downloads.energystar.gov/bi/qplist/ 

gas_furnaces_prod_list.pdf.) Thus, 

collectively, these data demonstrate that 

manufacturers of non-weatherized 

natural gas furnaces are already capable 

of producing at a level to meet the 

demands of the Massachusetts housing 

market. 

After evaluating the arguments raised 

by AHRI and the information provided, 

DOE does not believe that AHRI has 

sufficiently demonstrated under the 

statute that there is likely to be an 

adverse impact on the industry. Based 

on the slim evidence provided by the 

commenters opposing the petition, 

neither commenter provided sufficiently 

useful evidence in support of such a 

finding. Accordingly, although DOE is 

declining to grant a waiver in this 

instance, the information provided by 

these groups, in DOE’s view, indicates 

that it is unlikely that an adverse impact 

on the industry would result if such a 

waiver were granted. 

G. Potential Impacts on Consumers 

From Installation Issues 

AGA explained that moving to a 

mandatory 90-percent AFUE level 

would require substantial changes to 

existing homes in order to properly 

install high-efficiency furnaces into 

homes. It noted that in order to 

accommodate the positive pressure 

characteristics found in typical highefficiency furnaces, many structures 

would need to be modified—for 

example, the chimney may need 

relining to accommodate the gas water 

heater that would need to be installed 

to work in conjunction with the furnace. 

Additionally, a given structure may 

need a dedicated vent to discharge byproducts of combustion away from the 

furnace. These changes would be likely 

to raise the installation costs of these 

products and may, in AGA’s view, 

significantly impact manufacturers’ 

sales. (AGA, No. 12 at pp. 2) 

DOE agrees with AGA that additional 

consideration should be given to any 

potential impacts of existing residences 

as a result of installing condensing 

furnaces, especially in cases where 

safety issues could arise. DOE plans to 

further evaluate these issues in the 

existing furnace energy conservation 

standards rulemaking and believes that 

venue is the more appropriate one in 

which to address the variety of 

installations that may need to be 

modified to accommodate a condensing 

furnace in homes across the U.S. 

H. Current Energy Conservation 

Standards Rulemaking and the 

Consensus Agreement 

On January 26, 2010, AHRI, American 

Council for an Energy Efficient 

Economy (ACEEE), Alliance to Save 

Energy (ASE), ASAP, Natural Resources 

Defense Council (NRDC), and NEEP 

submitted a joint comment (hereafter 

referred to as the Joint Comment) to 

DOE recommending minimum energy 

conservation standards for residential 

central air conditioners, heat pumps, 

and furnaces. (Docket Number EE– 

2009–BT–STD–0022, AHRI, ACEEE, 

ASE, ASAP, NRDC, and NEEP, the Joint 

Comment, No. 1 at pp. 1–33) In 

describing the negotiating process that 

led to these recommended standards, 

the Joint Comment explains that the 

original consensus agreement was 

completed on October 13, 2009 and had 

15 signatories, including AHRI, ACEEE, 

ASE, NRDC, ASAP, NEEP, Northwest 

Power and Conservation Council 

(NPCC), California Energy Commission 

(CEC), Bard Manufacturing Company 

Inc., Carrier Residential and Light 

Commercial Systems, Goodman Global 

Inc., Lennox Residential, Mitsubishi 

Electric & Electronics USA, National 

Comfort Products, and Trane 

Residential. 

The Joint Comment recommends 

standards that divide the nation into 

two regions for residential furnaces 

based on the population-weighted 

number of heating degree days (HDD) of 

each state. States with 5000 HDDs or 

more are considered as part of the 

northern region, while states with less 

than 5000 HDDs are considered part of 

the southern region. The Joint Comment 

further recommends a 90-percent AFUE 

standard for the northern region, which 

includes the Commonwealth of 

Massachusetts, with a compliance date 

of May 1, 2013 for non-weatherized 

natural gas furnaces. 

DOE notes that it is currently 

conducting a rulemaking to consider 

amending the energy conservation 

standards for residential furnaces. While 

DOE is examining a variety of options 

for consideration, including the levels 

recommended by the Joint Comments, 

the agency has not yet decided which 

set of options it plans to propose. 

Among the options that the agency is 

considering is the possible exercise of 

DOE’s recently granted statutory 

authority to develop and implement 

geographically-based regional standards. 

See EISA 2007, sec. 306(a). The agency 

notes, however, that, when comparing 

the potential benefits to Massachusetts 

that would be likely to flow from the 

adoption of the levels recommended by 

the Joint Comments against the potential 

benefits from granting the petition, DOE 

believes that any additional benefits 

from granting the petition are likely to 

be small. Specifically, if DOE were to 

grant the waiver, the earliest compliance 

date under the waiver would be October 

2013, compared to the May 2013 

compliance date prescribed under the 

consensus agreement. The full 

consensus agreement can be found at 

http://www1.eere.energy.gov/buildings/

appliance_standards/residential/pdfs/

furnaces_framework_joint

stakeholdercomments.pdf. A potential 

Federal standard for the northern 

regions of 90-percent AFUE through 

adoption of the consensus agreement 

will provide slightly more energy 

savings (i.e., an estimated 0.000002 

quads) as compared to granting the 

waiver. The small energy savings 

difference can be attributed to the small 

heating energy use over the period 

spanning May to October, which 

accounts for only 7% of the annual 

heating energy use in Massachusetts. 

Consequently, given the on-going 

rulemaking, DOE believes that 

addressing this issue in one collective 

rulemaking action, rather than on a 

piece-meal basis, would be more likely 

to offer a comprehensive solution 

should DOE decide to adopt a 

regionally-based approach. 

V. Conclusion 

Taking into account all of the factors 

discussed above, DOE is declining to 

grant the Commonwealth’s request. DOE 

also emphasizes that it will give 

consideration to those levels proposed 

in the consensus agreement presented 

by industry and environmental 

advocacy groups. These levels are 

currently being evaluated within the 

context of the agency’s rulemaking to 

address standards for furnaces. See 

http://www1.eere.energy.gov/buildings/

appliance_standards/residential/

furnaces_nopm_rulemaking_

analysis.html. 


jdjones on DSK8KYBLC1PROD with NOTICES
62120 Federal Register / Vol. 75, No. 194 / Thursday, October 7, 2010 / Notices 

VI. Denial 

In light of the reasons noted above, 

and consistent with the requirements 

under EPCA, DOE is denying the 

Commonwealth’s petition for a waiver 

from Federal preemption. 

VII. Approval of the Office of the 

Assistant Secretary 

The Assistant Secretary of DOE’s 

Office of Energy Efficiency and 

Renewable Energy has approved 

publication of this notice of denial. 

Issued in Washington, DC, on September 

30, 2010. 

Cathy Zoi, 

Assistant Secretary, Energy Efficiency and 

Renewable Energy. 

[FR Doc. 2010–25324 Filed 10–6–10; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

Notice of Availability of Draft Basis for 

Determination Under Section 3116 of 

the Ronald W. Reagan National 

Defense Authorization Act for Fiscal 

Year 2005 (NDAA) for Closure of the F– 

Tank Farm at the Savannah River Site 

AGENCY: U.S. Department of Energy. 

ACTION: Notice of availability. 

SUMMARY: The Department of Energy 

(DOE) announces the availability of the 

‘‘Draft Basis for Section 3116 

Determination for Closure of the F–Tank 

Farm at the Savannah River Site’’ (Draft 

FTF 3116 Basis Document) for public 

review and comment. DOE prepared the 

Draft FTF 3116 Basis Document 

pursuant to Section 3116(a) of the 

NDAA, which provides that the 

Secretary of Energy may, in consultation 

with the U.S. Nuclear Regulatory 

Commission (NRC), determine that 

certain waste from reprocessing of spent 

nuclear fuel is not high-level waste if 

the provisions set forth in Section 

3116(a) are satisfied. To make this 

determination, the Secretary of Energy 

must determine that the waste in the 

FTF: (1) Does not require permanent 

isolation in a deep geologic repository 

for spent fuel or high-level radioactive 

waste; (2) has had highly radioactive 

radionuclides removed to the maximum 

extent practical; and (3)(A) does not 

exceed concentration limits for Class C 

low-level waste and will be disposed of 

in compliance with the performance 

objectives in 10 CFR Part 61, Subpart C 

and pursuant to a State approved 

closure plan or State-issued permit; or 

(3)(B) exceeds concentration limits for 

Class C low-level waste but will be 

disposed of in compliance with the 

performance objectives of 10 CFR Part 

61, Subpart C; pursuant to a Stateapproved closure plan or State-issued 

permit; and pursuant to plans 

developed by DOE in consultation with 

the NRC. Although not required by the 

NDAA, DOE is making the Draft FTF 

3116 Basis Document available for 

public review and comment. 

DATES: The comment period will end on 

January 7, 2011. Comments received 

after this date will be considered to the 

extent practicable. 

ADDRESSES: The Draft Basis for 

Determination is available on the 

Internet at http://sro.srs.gov/ 

f_htankfarmsdocuments.htm, and is 

publicly available for review at the 

following locations: 

District of Columbia 

U.S. Department of Energy, Freedom of 

Information Act Public Reading 

Room, 1000 Independence Avenue, 

SW., Room 1G–033, Washington, DC 

20585, (202) 586–5955. 

South Carolina 

University of South Carolina–Aiken, 

Gregg-Graniteville Library, 471 

University Parkway, Aiken, SC 29801, 

(803) 641–3320. 

Written comments on the Draft FTF 

Section 3116 Basis Document may be 

submitted by U.S. mail to the following 

address: Ms. Sherri Ross, DOE–SR, 

Building 704–S, Room 43, U.S. 

Department of Energy, Savannah River 

Operations Office, Aiken, SC 29802 

(ATTN: F–Tank Farm Draft Basis). 

Alternatively, comments may also be 

filed electronically by e-mail to 

sherri.ross@srs.gov, or by Fax at (803) 

208–7414. 

SUPPLEMENTARY INFORMATION: The FTF 

is a 22-acre site, located at the Savannah 

River Site near Aiken, South Carolina. 

The FTF consists of 22 underground 

radioactive waste storage tanks and 

supporting ancillary structures. Two of 

those waste tanks, Tanks 17 and 20 were 

cleaned and operationally closed in 

1997, prior to enactment of NDAA 

Section 3116. Accordingly, Tanks 17 

and 20 are not within the scope of this 

Draft FTF Section 3116 Basis Document. 

The major FTF ancillary structures are 

two evaporator systems, transfer lines, 

six diversion boxes, one catch tank, a 

concentrate transfer system, three pump 

pits, three pump tanks and eight valve 

boxes. There are three waste tank types 

in FTF with operating capacities ranging 

from 750,000 gallons (Type I tanks) to 

1,300,000 gallons (Type III/IIIA and 

Type IV tanks). The waste tanks have 

varying degrees of secondary 

containment and in-tank structural 

features such as cooling coils and 

columns. All FTF waste tanks are 

constructed of carbon steel. The FTF 

was constructed to receive waste 

generated by various SRS production, 

processing and laboratory facilities. 

DOE has initiated waste removal and 

cleaning of tanks and ancillary 

structures in the FTF using a process 

that includes removing bulk waste from 

tanks and ancillary structures and then 

deploying tested technologies to 

removing the majority of the remaining 

waste. After completing cleaning 

operations, a small amount of residual 

radioactive waste will remain in the 

tanks, ancillary equipment and piping. 

DOE plans to stabilize the residuals in 

the tanks and certain ancillary 

structures with grout. Tank waste 

storage and removal operations in the 

FTF are governed by a South Carolina 

Department of Health and 

Environmental Control (SCDHEC) 

industrial wastewater operating permit. 

Removal of tanks from service and 

stabilization of the FTF waste tanks and 

ancillary structures will be carried out 

pursuant to a State-approved closure 

plan, the Industrial Wastewater General 

Closure Plan for F–Area Waste Tank 

Systems (GCP). Specific Closure 

Modules for each tank or ancillary 

structure or groupings of tanks and 

ancillary structures will be developed 

and submitted to SCDHEC for approval. 

Subsequent to SCDHEC’s approval of 

the specific and final closure 

configuration documentation and 

grouting, the tank/system will be 

removed from the State’s industrial 

wastewater permit. This Draft FTF 

Section 3116 Basis Document applies to 

stabilized residuals in the waste tanks 

and ancillary structures, the waste 

tanks, and the ancillary structures in the 

FTF at the time of closure. 

The Draft FTF Section 3116 Basis 

Document is being issued in draft form 

to facilitate public review and comment. 

DOE anticipates it will take 

approximately 9 months to complete 

consultation with the NRC, before the 

Secretary makes a potential 

determination under Section 3116 (a) of 

the NDAA. 

Issued in Washington, DC, on September 

30, 2010. 

Frank Marcinowski, 

Deputy Assistant Secretary for Technical and 

Regulatory Support. 

[FR Doc. 2010–25341 Filed 10–6–10; 8:45 am] 

BILLING CODE P 


jdjones on DSK8KYBLC1PROD with NOTICES