### Assumptions and Inputs: Cost of Base Case (10.5 WF) RCW: $ 550 Cost of 8.5 WF RCW: $ 616.44 Cost of 6.0 WF RCW: $ 680.18 Number of Wash Loads Per Year: 392 Average Life of RCW: 14 years Water Price: $ 0.0032 per gallon Electricity Price:$ 0.115 per kWh Gas Price: $ 0.63 per therm Electricity Savings for 8.5 WF standard: Consumer Savings of 13 kWh/year/machine Statewide Savings includes additional 14.5 kWh/year/machine for water pumping and water treatment Electricity Savings for 6.0 WF standard: Consumer Savings of 18 kWh/year/machine Statewide Savings includes additional 21.7 kWh/year/machine for water pumping and water treatment Discount Rate: 3 percent Annual California Sales of RCW: 900,000 units
TABLE 3: SAVINGS FOR THE INDIVIDUAL CALIFORNIA CONSUMER : 6.0 WF STANDARD S (EFFECTIVE 2010)
Water Savings (gallons) Electricity

Savings (kWh) Gas

Savings (therms) Water

$ Savings 

### Electricity

$ Savings Gas

$ Savings Total

$ Savings Increased

First Cost Net $ Savings

(Total Savings Minus Increased First Cost)
Annual Savings 5,292 18 4 $16.93 $ 2.07 $ 2.52 $ 21.52 NA NA

Savings During 14-Year Appliance Lifetime ($ in present value) 

### 74,088 252 56 $191.00 $ 23.28 $ 28.47 $ 242.85 $ 130.18 $112.67

21

### TABLE 4: STATEWIDE SAVINGS: 6.0 WF ST ANDARDS (EFFECTIVE 2010)

Water Savings (gallons) Electricity

Savings (gWh) Gas

Savings (therms) Water

$ Savings Electricity

$ Savings Gas

$ Savings All

$ Savings

Annual Savings: First Year of Standards 4.76 billion 16.2 (washing machine)

35.73 (washing machine plus water pumping and treatment) 3.6 million $15.23

million $ 1.86 million

(washing machine) $ 4.06 million (washing machine plus water pumping and treatment) $ 2.3

million $19.39 million

(washing machine) $ 21.59 million (washing machine plus water pumping and treatment) Annual Savings: After Entire Stock Has Been Replaced 66.7 billion 

### 226.8 (washing

machine)
500.2 (washing machine plus water pumping and treatment) 50.4 million $ 172

million $ 21 million

(washing machine) $ 45.1 million (washing machine plus water pumping and treatment) $ 26

million $ 219.1 million

(washing machine) $ 243.9 million (washing machine plus water pumping and treatment)



## 0 0
22

### TABLE 5: SAVINGS FOR THE INDIVIDUAL. CALIFORNIA CONSUMER: 8.5 WF STANDARDS (EFFECTIVE 20071
Water Savings (gallons) Electricity

Savings (kWh) Gas

Savings (therms) Water

$ Savings Electricity

$ Savings Gas

$ Savings Total

$ Savings Increased

First Cost Net $ Savings

(Total Savings Minus Increased First Cost
Annual Savings 2,352 13 3 $ 7.53 $ 1.49 $1.89 $ 10.91 NA NA

Savings During 14-Year Appliance Lifetime ($ in present value) 

### 32,928 182 42 $ 85.02 $ 16.89 $21.357 $ 123.26 $66.44 $ 56.82

23

### TABLE 6: STATEWIDE SAVINGS: 8.5 WF ST ANDARDS (EFFECTIVE 2010)

Water Savings (gallons) 

### Electricity

Savings (gWh) Gas

Savings (therms) Water

$ Savings Electricity

$ Savings Gas

$ Savings All

$ Savings

Annual Savings: First Year of Standards 2.1 billion 11.7 (washing machine) 20.37 (washing machine plus water pumping and treatment) 2.7 million $ 6.72

million $ 1.35 million

(washing machine)
$ 2.8 million (washing machine plus water pumping and treatment) $ 1.7

million $ 9.77 million

(washing machine) $ 11.22 million (washing machine plus water pumping and treatment) Annual Savings: After Entire Stock Has Been Replaced 29.4 billion 163.8 (washing

machine) 285.18 (washing machine plus water pumping and treatment) 37.8 million $ 75.9 million $ 15.25 million

(washing machine)
$ 31.6 million (washing machine plus water pumping and treatment) $19.2

million $ 110.36 million

(washing machine)
$ 126.7 million (washing machine plus water pumping and treatment)

24

## These savings are impressive. For individual consumers, the 6.0 WF standards will

save approximately 11 percent of a typical household's water use. In addition, the simple payback for both the 8.5 WF and the 6.0 standards is approximately six years - that is, the initial investment in the more efficient RCW is repaid in six years. The lifetime of a typical RCW is fourteen years, so consumers will be much better off financially as a result of the standards. On a statewide basis, the total annual water savings that will result once the 6.0 WF standards have reached their full effect - that is, after all stock has been replaced with complying equipment - will be approximately 204,387 acre-feet per year. This is equivalent to the amount of water used by the entire City of San Diego, the second-largest city in California and the seventh largest city in the country.61Another way of looking at this is that the annual water savings from the fullyimplemented 6.0 WF standards would be enough to supply the needs of over 425,000 California households.61 To put the savings from the standards into the context of other water-savings efforts, the 2005 Draft California Water Plan estimates that up to 2.4 million acre -feet a year of water savings are potentially available from all Urban Water Use Efficiency efforts.62 The 6.0 WF standard will, when fully implemented, provide over 8 percent of those savings. That is a considerable accomplishment for standards for a single appliance. Moreover, even though the standards were adopted primarily as a water-saving measure, the energy savings will also be significant. A fully-implemented 8.5 WF standard will save as much energy as the annual usage for approximately 50,000 California homes, and the 6.0 WF will save the equivalent of the annual energy use of approximately 85,000 California homes.63 Thus, at minimal cost, the standards

60 www.census.gov/statab/ccdb/cit1020r.txt.
61 204,387 acre-feet per year saved, divided by a typical California water use per household of 156,000 gallons per household per year as reported by Scott Matyac, Senior Land and Water Use Scientist, Department of Water Resources, in November 2004, based on unpublished water use and demographic data compiled for the 2005 Draft California Water Plan. 

### 62 2005 Draft California Water Plan, vol. 1, Ch. 1, p. 1-15.
63 www.census. gov/popest/statesNST-EST2003- ann-est.html, and www.eia.doe

.gov/emeu/states/sep_use/total/pdf/use-all.pdf

25 6 

# 0 00 0 8 G

## will free up large energy and water resources that can be conserved or used more

productively in the California economy. Finally, in addition to the direct savings in water and energy costs, the standards will, by reducing demand, contribute to long-term reductions in the rates that water and energy utilities would otherwise have to charge. Reduced water and energy demand will also help defer capital investments by utilities, and will lessen the frequency and severity of possible future water and energy shortages.

D. Alternatives to the Standards 

## As we noted above, in order to obtain a preemption waiver, a state must demonstrate that its interests:

(i) are substantially different in nature or magnitude than those prevailing in the United States generally; and (ii) are such that the costs , benefits , burdens , and reliability of energy or water savings resulting from the State regulation make such regulation preferable or necessary when measured against the costs, benefits, burdens, and reliability of alternative approaches to energy or water savings or production , including reliance on reasonably predictable market-induced improvements in efficiency of all products subject to the State regulation.6 The previous parts of this Petition have shown.that California's interests "are substantially different in nature .or magnitude than those prevailing in the United States generally" (pages 5-19) and that the benefits of the standards, both to individual consumers and to the State as a whole, are substantial (pages 19-26). Now, in this part of the Petition, we demonstrate that the standards are preferable tothe available alternatives: rebates and accompanying educational efforts, other nonregulatory programs, and "reliance on reasonably predictable market-induced improvements in efficiency" (i.e., doing nothing).

64 42 U.S.C. section 6297(d)(1)(C)(i)-(ii).

26 

# 00 0 

# 0 087

## Before turning to specific alternatives, we emphasize again that the California

Legislature has required the Energy Commission to adopt the RCW standards.65 DOE should be very hesitant to second-guess the determination, by the elected governing body of the largest State in the Union, that the standards are necessary.

1. Rebates In the Energy Commission's rulemaking proceeding in which the California RCW standards were adopted, the Association of Home Appliance Manufacturers ("ARAM") encouraged the Commission to consider rebates (and accompanying consumer education) as an alternative to the then-proposed standards.66 This option is incapable of achieving the results of the adopted standards and would be substantially more expensive.
For several reasons, rebates and education would not achieve the same RCW water savings as the standards. The primary reason is that existing rebate and education programs have fallen far short of achieving full energy efficiency in the RCW market (even though clothes washers have been the subject of rebates for both energy efficiency and water efficiency for a number of years); given that track record, it is unrealistic to believe that such programs would be able to accomplish much more for water efficiency. For a decade there have been vigorous and sustained RCW energy- and water-efficiency rebate and education programs, including the federal Energy Star program, utility rebates and promotion, andmanufacturer marketing. Yet as Figure 2 shows, despite those programs, highenergy-efficiency (i.e., Energy Star rated) RCW account for only 39 percent of the California market as of the end of 2003.
II
II

65 California Public Resources Code section 25402(e)(1). 66 CEC Docket No. 03-AAER-01 (RCW), Hearing Transcript, October 15, 2003, p. 63, (www.energy.ca.gov/appliances/documents/2004-12-15_TRANSCRIPT.PDF).

27 

# 00 0008 8

## Figure 2: Energy Star Washer Market Share: U.S. and California 67

45

40

35

3

25-

20- .-. tea.. .a'

15 

# '
10 ®-

5

: : II I 000 000 e e °°° ^ 1 ' o°' d'' Time Period I- Energy --Energy Star: CA -+-• Energy Star: USA -4 per. Mov. Avg. (Energy Star: CA)



## While they have been effective in initiating market transformation, rebate and education programs were neither designed nor expected to fully transform the entire market for high-energy-efficiency RCW in California. Thus it is unrealistic to expect that continuation of similar rebate and education efforts could achieve a market share of high-water-efficiency RCW substantially higher than the 39 percent level achieved for energy efficient washers (which is well above today's approximately 30 percent market share for washers with less than 8.5 WF).68 On the other hand, the California standards, if given a waiver by DOE, will achieve a 100 percent market share.

67 www.energystatr. gov/ia/partners/manuf res/2003_appliance

_sales-data .xls (03/09/2004). 68 Pacific Gas & Electric Company, SMUD, and the City of Austin offer rebates for Energy Star RCW. In the first half of 2004, about 75 percent of their 19,000 rebates were for machines with water factors at or below 8.5. (Consortium for Energy Efficiency, memorandum, July 21, 2004, Chart 4.) (The California data dominates the sample, so the City of Austin results do not bias the findings.) Assuming that Energy Star models constitute around 40 percent of the market (see Figure 2), then around 75% x 40% = 30 percent of the current market is for RCW with WF of 8.5 or less. About half of the rebates were for machines with water factors at or below 6.0 (id.), which suggests that such machines have a market share of around 50% x 40% = 20 percent.

28 

# 0 6&; F^'*

## Moreover, if rebate and education programs were reconfigured expressly to

transform the entire market, rebates would have to be very large - prohibitively expensive when compared to standards. That is because current rebates are generally sized to encourage acceptance of new technologies by "early adopters," not to push products into the hands of "technology laggards." Common sense, and real-world retailer experience, indicates that rebates that at least fully reimburse consumers for the incremental costs of high-water-efficiency machines would berequired in order to achieve anything close to a 100 percent market share for highwater-efficiency washers. For example, market research by the Northwest Energy Efficiency Alliance ("NEEA") has documented that retailers believe that they could sell efficient washers, with an increased cost of $200, to no more than one-third of buyers, if lower-cost, less-efficient models were also an option.69 This is despite the fact that such an incremental cost is more than justified by savings on a net present value basis for consumers. Thus, rebates sized to match the full incremental cost would be required for voluntary programs designed to impact the majority of the "laggard" market.
The costs of such "super" rebates would be very high. Even the lowest-cost Energy. Star-rated washer (which is not particularly water-efficient) is over $100 more expensive than the average washer;70 most water-efficient washers - many of which include other higher-end features - currently cost several hundred dollars more than baseline washers .71 These high costs for most water-efficient models appear to.be the result of manufacturers' lack of motivation to "unbundle" water efficiency - that is, to provide low-cost, high-water-efficiency washers without additional "bells and whistles." Currently, high water efficiency is viewed as an amenity for which customers are willing to pay extra; this translates to profitability for manufacturers. In the absence of standards, therefore, we see no evidence that incremental costs will

69 "Market Progress Evaluation Report: WashWise Program". Northwest Energy Efficiency Alliance, Portland, OR. Report Number E98-003, July 1998. Page iv. 

### 70 "Comments of PG&E Regarding Proposed Residential Clothes Washer Water Factor Standards (CEC Docket No. 03-AAER-01) (RCW)" December 2, 2003, Pacific Gas and Electric Company, p. 3. 71 In its November 11, 2003 comments in the CEC's rulemaking proceeding (CEC Docket No. 03- AAER-0l)(RCW), AHAM included shipment weighted price estimates for washers meeting different WF levels in 2004. Then-current baseline product pricing was shown as the mid-three hundred dollar range versus just over $1,000 for washers meeting 8.5 and 6.0 WF levels. Thus, AHAM data suggests a shipment-weighted incremental cost of over $600 in 2004.



# 29 0 00 0090

## drop substantially in the near term, especially with the availability of rebates, which

allow manufacturers to maintain large margins on these high-end models.72 In order to compare the relative costs of standards and rebates, we modeled the cost of providing typically-sized rebates (assuming a baseline of 12 WF73). First, we conservatively assumed that the future average incremental cost to customers for an 8.5 WF washer would be $290, in the absence of the California standards.74 Second, we added utility administrative costs (when utilities pay rebates, they must expend at least $30 to 40 or more per washer for administration). Third, we assumed that participation rates in water and energy utility programs are, respectively, 40 and 50 percent of all eligible washer sales in California. Weighted average combined costs per eligible washer to utilities and consumers were then calculated. The results are shown in Table 7 below: taken together, without the proposed standards in effect, customers and utilities would have to contribute $388 per rebated washer to reach the 8.5 WF level. If all eligible washer purchases resulted in rebates from both water and energy utilities, the average total cost would be even higher ($513). Moreover, as we previously noted, even at this relatively high cost, the rebate program would not transform the entire California market. In contrast, the costs of the standards, which achieve 100 percent market penetration, are only $66 (for the 8.5 WF standard) and $130 (for the 6.0 WF standard). (See pages 21, 23 above.)

72 In the Technical Support Document for the 2000 RCW rulemaking proceeding, DOE noted that manufacturer data suggested profit margins of more than 10 percent for horizontal-axis washers (versus 6.2 percent for baseline washers). U.S. Department of Energy, 2000 Final Clothes Washer Final Rule Making-Technical Support Document, Chapter 11. Manufacturer Impact Analysis, p. 11-26 (www.eere.energy.gov/buildings/appliance-standards/residential/clwash_0900 r.html). 73 We used a baseline of 12 WF because that is the rounded value set forth by AHAM in the CEC proceeding that adopted the RCW standards. (CEC Docket No. 03-AAER-01 (RCW), Hearing Transcript, October 15, 2000). (www.energy.ca.gov/appliances/documents/2004-12- 15_TRANSCRIPT.PDF). 74 $290 is a conservative estimate of incremental cost in the absence of a standard. According to AHAM's "2007 Estimated Washer Cost vs. Water Factor Cost Ranges and Median Price Point for Industry" (AHAM, Nov. 11, 2003 comments in CEC Docket No. 03-AAER-01 (RCW), attachment 2), the incremental cost of an 8.5 WF washer in 2007 would be $250 and the incremental cost of a 6.0 WF washer in 2007 would be $837. In order to be conservative, we based our incremental cost estimate ($290) for an 8.5 WF washer on the lowest published price ($629) for a washer with a water factor below 6.0 found at the Sears website on July 28, 2003, versus the $340 average washer cost reported by AHAM in the CEC rulemaking proceeding.

30 

# 000 00 91

## Table 7: Costs of Rebate Programs for Consumers and Utilities

Cost Factor Amount I Participation Rate Weighted Amount Water utility administrative costs $35 s 40% $14 Energy utility administrative costs 38 76 

## 50% 19
Water incentive 1 75 40% 30 Energy incentive 1 75 50% 35 Total Utility cost 223 98 Incremental retail price 

## 290 100% 290
Total cost $513 $388
The California Urban Water Conservation Council ("CUWCC" ) is a collaborative of water agencies , other government entities , non-governmental organizations, and businesses that has been working on water use efficiency in California for 15 years. The council has noted: "The urban water purveyors of California cannot financially support rebate programs to convert the market share of water efficiency washers to the level necessary to eliminate the water wasting clothes washers in the market."" However, if DOE grants this Petition and allows the California standards to take effect, manufacturers would face an immediate demand for lower-cost products (probably meaning a more modest feature package) that meet the standards. The entire history of price impacts resulting from appliance efficiency standards strongly supports our view that the incremental retail price for washers that meet the new

75 Estimated cost is the center of the cost range ($30 to $40) provided in conversation with Tom Pape on behalf of CUWCC. 76 Estimated processing cost for PG&E based on overall Residential Retrofit Rebate Program filings to the CPUC as shown in "2002 Energy Efficiency Program Selection R. 01-08-028:Energy Efficiency Proposal, Statewide Residential Retrofit Single-Family Energy Efficiency Rebates". Pacific Gas and Electric Company, December 2001. 77 "Projected Water Demand Reductions Derived From CEC Proposed Water Factor Standards", California Urban Water Conservation Council, Sacramento, January 21, 2004, p. 2 (www.cuwcc.org/Uploads/hotnews/CEC HEW Testimony_04_01_21.pdf).



# 31 0000092

## standards will be much lower than the spread between the price of baseline washer

and efficient washers prior to the standards taking effect.7$ The bottom line is that rebate and education programs would be several times more expensive than the standards. Moreover, savings from such programs would not persist after termination, so additional expenses would be needed to prevent "backsliding. ,79 Furthermore, all costs of rebate and education programs ultimately would have to be passed back to Californians in their energy and water rates. The California RCW standards are much less expensive and will save much more water.

2. Other Non-Regulatory Programs Of course, rebate and education programs are not the only alternatives to standards. But as DOE itself found, in assessing numerous alternatives in its 2000 residential clothes washer rulemaking proceeding, none could achieve more than a small fraction of the savings from standards. DOE considered a very wide range of potential programs, including such activities as mass government purchases and various subsidies. The results were discouraging:80

//

78 Larry Dale, et. al. "Retrospective Evaluation of Declining Price for Energy Efficiency Appliances." 

### 79 If rebate funds became unavailable, the. customer research suggests that market share for efficient washers would fall significantly. 80 U.S. Department of Energy, 2000 Final Clothes Washer Final Rule Making-Technical Support Document, Regulatory Impact Analysis, September 2000, p. RIA-12, Tables RIA1 and p. RIA-13, RIA2.



# 32 0000 0 93

## Table 8: Savings from Other Non-Regulatory Programs

Alternative Description Water Source NPV (billion Program Savings Energy 1998$) (trillion Savings gallons) (Quads) Early 6 year program; assume 0.0006 0.004 0.025 replacement 50% increase in early with existing replacement sales with efficiencies current market efficiency Mass 6 year program; assume 0.013 0.006 0.019 government 25% of replacement sales purchases in HUD public housing

households are high efficiency units Enhanced 6 year program; assume 0.054 0.026 0.079 public effects are education equivalent to $39 financial

incentive Low income 6 year program; 25% 0.065 0.031 0.095 and senior subsidy of cost for MEF > subsidy 1.257 units; assume 28%

of households participate Consumer tax 15% tax credit; assume 0.085 0.041 0.125 credits 60% of consumers

participate 

### Consumer Rebate of 15% of the cost 0.150 0.072 0.220 rebates of high efficiency (35%

level) units Early 6 year program; assume 0.161 0.078 0.238 replacement 15% increase in early with 35% replacement sales with efficiency level high efficiency units Manufacturer $50 to $100 credit per unit 0.299-0.666 0.153-0.330 0.217-0.756 tax credits for two efficiency tiers

(MEF 1.26 and 1.42) Voluntary 10 year delay in start date 6.81 3.09 8.54 efficiency of standards targets 

### Voluntary 5 year delay in start date of 9.97 4.55 12.38 efficiency standards targets Mandatory Proposed negotiated 11.59 5.52 15.33 standards standard



# 33 0000094

## Thus according to DOE, none of the non-standards (including rebates and education)

alternatives are capable of delivering anything remotely approaching the savings that a standard would produce. Only "voluntary targets" - which are actually nothing more than a "proposed negotiated standard," but with a delayed effective date - could come anywhere close to delivering the same amount of savings.
It is true that the California standards at issue in this Petition are different than those considered in DOE's analysis

. Nevertheless , because DOE was considering the same appliance, the technical issues and market barriers are quite similar. Therefore, we believe that DOE's analysis

- which, again, shows that alternatives can achieve only a few percent of the savings from standards - is a reasonable proxy for the California standards assessment

. California' s adopted standards are clearly the most successful strategy

- with no close alternative

- for cost-effectively acquiring water savings and ensuring that the savings are persistent over time.

3. "Reasonably predictable market-induced improvements in efficiency." It would be a serious error for California to rely on - or for DOE to force: California to rely on - "reasonably predictable market-induced improvements in efficiency" to produce the water and energy savings that the RCW standards will achieve.81 In the RCW rulemaking proceeding completed in 2000, DOE estimated that the average RCW at that time had a 13.3 WF, and DOE predicted, on the basis of data supplied by AHAM and individual RCW manufacturers, that the average WF in 2007 would be around 7.0.82 As a result of the trillions of gallons of water savings implicit in DOE's prediction, manufacturers strongly opposed including water efficiency requirements in the federal RCW standard-on the ground that the energy standard alone would deliver the water savings. Unfortunately, DOE's prediction has failed to materialize. AHAM recently estimated that shipment-weighed average water factors would be approximately 10.8 and 10.4 in 2004 and 2007, respectively, in the absence of State standards - far from the 7.0 WF prediction.83

8 

### See 42 U.S.C. section 6297(d)(1)(C)(ii). 82 "Final Rule Technical Support Document (TSD): Energy Efficiency Standards for Consumer Products: Clothes Washers" U.S. Department of Energy, Washington, DC 20585, December 2000, Chapter 4, Engineering Analysis, pp. 4 - 5. 83 CEC Docket No. 03-AAER-01 (RCW), Hearing Transcript, October 15, 2003, p. 47 (www.energy.ca.gov/appliances/documents/2004-12-15 TRANSCRIPT.PDF).



# 34 0000095

## What appears to have happened is that although there were some modest gains in

water efficiency as a result of the 2004 federal RCW energy standard, manufacturers have decided to meet the federal standard with products having lower energy use but only marginally improved water efficiency. This is a natural result of the fact that there is little correlation between energy efficiency and water efficiency. The Consortium for Energy Efficiency ("CEE") recently completed a comprehensive analysis of residential washer rebate program data collected from numerous water and energy utilities participating in its Residential Clothes Washer Initiative. Figure 3 below depicts the water factor and modified energy factor for each washer model rebated through the 2003 programs analyzed by CEE.84 The data shows that there is only a modest correlation between water efficiency and energy efficiency, and indicates that "reasonably predictable market-induced improvements in [water] efficiency," even when driven by federal energy standards, would not deliver the majority of the savings potential from the California standards.

Figure 3: Correlation Between MEF and WF

MEF, WF, and Manufacturer

12.00

11.00

10.00

9.00

4.00

3.00

2.001.00 1.20 1.40 0- 0



# t

-

# 0 + 

# 0 , 40h

1.60 1.80

MEF 

## +

2.00 2.20 2.40 2.60 +Asko XAvanti - BSH ® Electrolux ® Fisher Paykel ® Gorenje +t_G Maytag -Miele Staber Whirlpool



### 84 Rebecca Foster, Consortium for Energy Efficiency, Memo to CEE Residential Appliance Committee, July 21, 2004 . Page 15.



# 35 0000096

## We assessed the magnitude of the lost water savings were California to rely on

market-induced improvements instead of its adopted RCW standards. Figure 4 below shows our optimistic estimate that "reasonably predictable market-induced improvements in efficiency" would produce an average annual reduction of 1.5 percent in (see the upper line in the figure). This is somewhat lower than the estimated average WF reduction of about 2.4 percent over the 10 years leading up to 2007. We estimated a slower future rate than the rate of the last ten years because, as noted above, the federal RCW energy standard did produce some early reduction in WF but those gains are leveling off, and in a "market-induced improvements" scenario there would be no other factors aggressively driving WF downward. For the California standards scenario (the bottom line in the figure), we assumed WF reductions to proceed at approximately 0.7 percent annually. After the implementation of the 2010 standard, natural market-induced efficiency improvements would be expected to be lower because incremental improvements would be relatively more expensive, and because voluntary program opportunities and therefore activities would be lower. Based on those assumptions, we estimate that for those washers sold between 2010 and 2040, and operated between 2010 to 2054, the cumulative differential in water use between market-induced efficiency improvements and the California standards would amount to over 1.2 trillion gallons of water. At the today's average California water price of $ 0.0032 per gallon, this would be worth almost four billion dollars. That would be much too high a price for California to pay for a DOE denial of this Petition. Figure 4: Projected U.S. (Unregulated) Water Efficiency Versus

Water Efficiency Under the California Standards

14 ,

--.--National Actual -o--CA Estimated -s-Projected Nation

0 - - - . r . --i _- r r 1995 2000 2005 2010 2015 2020 2025 2030 2035 2040 2045 Year



# 36 0000097

## IV. Potential B urdens on Industry

DOE may not grant a preemption waiver if it finds "that interested persons have established, by a preponderance of the evidence, that [the] State regulation will significantly burden manufacturing, marketing, distribution, sale, or servicing of the [appliance] on a national basis." (42 U.S.C. section 6297(d)(3).) In determining whether to make such a finding, DOE must consider all relevant factors, including:85 (A) the extent to which the State regulation will increase manufacturing or distribution costs of manufacturers , distributors , and others; (B) the extent to which the State regulation will disadvantage smaller manufacturers, distributors, or dealers or lessen competition in the sale of the covered product in the State; (C) the extent to which the State regulation would cause a burden to manufacturers to redesign and produce the covered product type (or class), taking into consideration the extent to which the regulation would result in a reduction- (i) in the current models, or in the projected availability of models, that could be shipped on the effective date of the regulation to the State and within the United States; or (ii) in the current or projected sales volume of the covered product type (or class) in the State and the United States; and (D) the extent to which. the State regulation is likely to contribute significantly to a proliferation of State appliance efficiency requirements and the cumulative impact such requirements would have. This section of the Petition shows, in summary fashion, that the California standards will for the most part impose no such burdens at all, and that any burdens that might materialize would be insignificant. If other parties present evidence of such burdens, we will respond in detail in rebuttal comments.86

85 42 U. S.C. section 6297(d)(3).
86 See id

. section 6297 (d)(2).



## 37 000 009 8

## A. M anufacturing and D istribution Costs

In its RCW rulemaking, DOE found that the benefits of federal standards would outweigh any negative manufacturer impacts, even though DOE assumed that horizontal-axis technology (with a water factor between 7 and 8) would be used to meet the 2007 federal standards.87 DOE estimated an incremental manufacturing cost of $150 to meet that standard.88 Once performance in the 7 to 8 WF range is achieved in a horizontal-axis configuration, it is doubtful that there is a significant additional manufacturing cost required to achieve a water factor of 6.0.84 Given technological developments since the late 1990s, and DOE's history of overestimating the costs of standards90, it is likely that the manufacturing cost impacts of the California standards will be even smaller than those anticipated by DOE.9' These estimates are supported by current facts. Most appliance manufacturers, both small and large, already make high-efficiency, horizontal-axis washers; the May 16, 2005 CEE listing shows 97 models under 20 different brands at a 7.5 WF or better, and 55 models at 5.5 WF or better. As is discussed in footnote 70 above, approximately 20 percent of California sales of washers already comply with the 2010 standard of 6.0 water factor, and approximately 30 percent already meet the 2007 standard of 8.5. Clearly then, significant investments in research and development, and production infrastructure, have already been made.
87 "Final Rule Technical Support Document (TSD): Energy Efficiency Standards for Consumer Products: Clothes Washers" U.S. Department of Energy, Washington, DC 20585, December 2000, Engineering Analysis, p. 4-5. 88 By the time the final rule was published in 2001, the DOE had become aware that vertical-axis products meeting the 2007 levels were possible and had an incremental manufacturer cost of only $75. (See 66 Fed. Reg. 3315 (Jan. 12, 2001).) 89 Figure 5 below depicts the broad distribution of retail prices of various washers rebated in utility programs in 2003. AHAM data presented in the Energy Commission's rulemaking proceeding also showed minimal price differences among models meeting different low water factors. 90 Larry Dale et al, "Retrospective Evaluation of Declining Price for Energy Efficiency Appliances," 2000, Lawrence Berkeley National Laboratories, published in American Council for an Energy Efficient Economy Summary Study proceedings, p. 9.68. 91 "Final Rule Technical Support Document (TSD): Energy Efficiency Standards for Consumer Products: Clothes Washers" U.S. Department of Energy, Washington, DC 20585, December 2000, Engineering Analysis, p. 4-8.



# 38 0000099

## Indeed, as we have previously noted, there appears to be little correlation between

water efficiency and price. Figure 5 below presents CEE's analysis of costs versus water factor. Down to a 7.0 WF, there seems to be no correlation at all: prices at the top end of the price range are between 3 and 5 times higher than at the bottom of the range at all water factor levels. Below a 7.0 WF, the very low-cost models disappear, but there is still very little correlation between water factor and price. It is clear that factors other than water efficiency are the primary determinants of price.

$2,000.00

$1,800.00

$1,600.00

$1,400.00

$1,200.00 Unit Price $1,000.00

$800.00

$600.00

$400.00

$200.00

$- 2.00 

## Figure 5: Correlation B etween WF and Price

3.00 4.00 5.00 6.00 7.00 Water Factor 8.00 9.00 10.00 11.00 12.00



## Moreover, given the current California 30 percent market share for washers with water factors below 8.5, and the fact that California represents about 10 percent of national sales, the 2007 California standards would affect only about 7 percent of U.S. washer sales. Thus, to the extent that additional manufacturing, distribution, or other costs would be required, they would likely be very small. And any increased costs could well be more than made up in increased revenues: "[s]tandards that
39 (1O OO

## enforce higher product quality and consequent higher product costs can contribute to

enhancing the gross revenues of the industry."92

Effects on Smaller Manufacturers, Distributors, and Dealers, and on Sales Competition in California Two factors - the observed effects of the federal RCW energy standard, and the current California market for high-water-efficiency RCW - strongly indicate that the California standards are very unlikely to have an adverse effect on smaller members of the appliance industry or on sales competition. Recent years' innovations resulting from, or at least occurring simultaneously with, the DOE energy standard for RCW have resulted in a proliferation of technologies and features. In 2001, when the federal standard was adopted, there were more than 60 qualified products on the CEE product list. As of September 15, 2004, even though the CEE qualifying criteria had become more strict, the number of qualifying models grew to more than 130. In addition, despite the centralization that occurred in many businesses sectors, particularly in the appliance industry, in the late twentieth century, the number of manufacturers selling in the U.S. in the last five years has increased significantly. There is no reason to expect the California standards to have an adverse impact on manufacturers or on sales competition. With regard to sales competition in California, we have previously noted that most manufacturers, large and small, already have products available that meet the standards, so it seems most likely that sales competition will continue to be healthy when the standards take effect. Indeed, while in 2003 there were three manufacturers with products at or below 5.5 WF, there were nine by mid-2004.93

92 Robert Van Buskirk, "Econometric Modeling of the Effects of Energy Efficiency Standards on Appliance Shipments," 2000, Lawrence Berkeley National Laboratories, published in American Council for an Energy Efficient Economy Summary Study proceedings. p. 9.381. 93 Rebecca Foster, Consortium for Energy Efficiency, memorandum to CEE Residential Appliance Committee, August 12, 2004.

40 00001 01

## C. Reductions in Available Models, or Sales, in the U.S. and in California
Significant reductions in available models, or in sales, are likely only if manufacturers would be unable to manufacturer enough products, or if consumers would be unlikely to buy them. Neither contingency will occur. Based on the availability of products in 2004 that already meet both the 2007 and the 2010 California standards, the supply of products will not constrain sales in California or anywhere else in the U.S. Moreover, consumers will buy the products. We have already shown that price increases will be modest, and at pages 42-49 below we show that the standards will not result in significant changes in product performance or features, so there is no reason to expect consumers not to buy the products. Moreover, even if prices were to increase substantially more than we expect, sales would probably still not be significantly affected. That is because, as DOE's own analysis shows, the demand for clothes washers is generally inelastic: "[H]ouseholds that currently own clothes washers will likely continue to purchase new ones when needed, even with large price increases. For example, using the upper bound elasticity estimate for all current clothes washer owners, a 63 percent price increase from $400 to $650 results in only a 10 percent decrease in purchases for this sector of the market."94 No doubt manufacturers would define a 10 percent decline in California sales as a significant reduction, but that presumes a 63 percent retail price increment, which far overstates the likely price increase; furthermore, even in that worst-case scenario, a 10 percent reduction in California sales would result in a decline of only one percent of national sales, which is well within the range of annual sales variability.

D. Proliferation of State Standards We are unaware of any other States that are considering RCW water factor standards. To the extent there are any, other States would most likely adopt the California standards. If that happened, manufacturers, distributors, and other industry members would be able to spread any costs from standards over a larger sales volume, thereby reducing per-unit costs. This would be a benefit to the industry.

94 U.S . Department of Energy, 2000 Final Clothes Washer Final Rule Making-Technical Support Document, Appendix J, p. J-45.



# 41 0000102

## V. Potential Effects on Consumer Utility

DOE may not grant a preemption waiver if it finds "that interested persons have established, by a preponderance of the evidence, that the State regulation is likely to result in the unavailability in the State of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the State at the time of [DOE's] finding ...."95 This part of the Petition shows, in summary fashion, that the California standards will not result in any reduction in consumer utility. If other parties present evidence of such unavailability, we will respond in detail in rebuttal comments.96

A. Performance Characteristics Other than an increase in water efficiency, there will be no significant changes in performance characteristics, including reliability, due to the California standards. In the last half decade, a variety of new high efficiency washers have been introduced into the market by a growing number of manufacturers. Figure 6 shows that as of February 2005, 78 out of the 182 Energy Star RCW models have water factors at or below 6.0 - the second tier of the California standards. That clearly demonstrates that the standards are feasible and that consumers will have access to complying machines.
There is no reason to expect high-water-efficiency machines to be less reliable than the models available today. In general, it is not unusual to see early reliability problems in new platforms as manufacturers work the bugs out of new concepts, and because the DOE RCW energy standard already requires substantial changes to washer designs, especially in 2007, even without a California standard one may expect a certain amount of initial reliability issues as new types of products are rolled off the line for the first time. However, it seems unlikely that the California standard would significantly add to this possibility. We have no information suggesting otherwise, and currently-available high-water-efficiency RCW are often high-value products ($1,000+) whose customers demand good reliability.

95 42 U.S.C. section 6297(d)(4). 96 See id

. section 6297 (d)(2).



# 0 000103 42

## Figure 6: Energy Star List as of 2/16/05: MEF versus WF by Brand

ENERGY STAR Qualified Clothes Washers (Models with WF equal or less than 8.5)

9.0

8.0

4.0

3.0 1 X 

### 0

X

X

1.2 1.4 

### El

2.6 X

2.8 4, Ariston

BlAsko Bosch X Danby Designer X Equator e Eurotech +Fisher & Paykel -Frigidaire -General Electric Kenmore Kitchen Aid LG Electronics Maytag M fete oQuioNine Siemens -Speed Queen -Splendide Staber Summit L Thor X W hirlpool

3



## Moreover, to the extent that manufacturers meet the California standards with horizontal-axis technology, this would likely increase cleaning performance. Many assessments suggest that cleaning performance is better with horizontal-axis washers compared to typical top-loading vertical-axis washers (see pages 46-48 below).

Consumer Features There is no evidence that the California standards will reduce the availability of important washer features. A variety of research shows acceptance for high efficiency washers. For example, as we explain in more detail below, extensive national focus group and conjoint analysis work was conducted by the DOE during the 2000 federal rulemaking process with a cross section of American consumers, and it provided results with high levels of statistical confidence. Other consumer



# 43 0000104

## research by the NEEA and the San Diego County Water Authority ("SDCWA")

confirms the acceptance of high-efficiency washer technology. As part of the 2000 DOE proceeding on clothes washers, DOE conducted consumer research regarding clothes washer feature preferences.97 Through focus groups, the DOE established a list, shown in Table 9 below, of features and attributes considered by consumers in evaluating washers. Few if any of the 60+ attributes would be affected by the California RCW standards. Washers already meeting both the 8.5 and 6.0 WF levels offer a similar selection of features.
II

II
II

II

it

II
/I

97 "Final Rule Technical Support Document (TSD): Energy Efficiency Standards for Consumer Products: Clothes Washers" U.S. Department of Energy, Washington, DC 20585, December 2000, App. J., p. J-46; see also id., section J.10.



# 44 0000105

## Table 9:

Washer Attributes Listed as Important in E's Consumer Analysis

Attribute Frequency in Top 5 Percentage Out of 429 Price 241 56.2% Energy and Water Costs Ener Efficiency 205 47.8 Capacity 187 43.5 Multiple Wash Cycle tons 152 35.4 Water Temperature lions 116 27.0 Machine Size 113 26.3 Brand 89 20.7 Load Size Options 82 19.1 Reliability 73 17.0 Quiet Operation 65 15.2 Warranty 65 15.2 Door Placement 58 13.5 Color 56 13.1 Durabili 52 12.1 Si mple Settin gs 43 10.0 Bleach Softener Dispenser 33 7.7 Machine Design 28 6.5 User Friendly Controls 27 6.3 Wash Time 26 6.1 Delicate Cycle 26 6.1 Agitated Speed 22 5.1 Availability of Service 21 4.9 Buttons & Dials 21 4.9 Gentle Cycle 19 4.4 Extra Rinse Cycle 18 4.2 Spin Seed 18 4.2 Heavy Duty Cycle 18 4.2 Rated Highly by Consumer Reports 17 4.0 A itation side to side or up-down) 13 3.0 Self-Cleaning Filter 13 3.0 Corrects Out-of-Balance 8 1.9 Tub Material (Rastic/Metal 8 1.9 Washer/ Dryer Combo 7 1.5 Control Labels 7 1.5 End of Cycle Signal 6 1.4 Soak Option 5 1.2 Detergent Cost Savings 5 1.2 Pre-Wash 5 1.2 Soap Dispenser 5 1.2 Ability to Re-Use Rinse Water 5 1.2 Safe 5 1.2 Time Remaining Indicator 5 1.2 Clear Instructions 4 0.9 Motor Quality/Size 4 0.9 Warning Lights 4 0.9 Add Clothes Mid Cycle 3 0.7 Removable Tub 3 0.7 Gas/Electric 3 0.7 HorizontaWertical Axis 2 0.5 Unit Removable 2 0.5 Hot Water Pressure 2 0.5 Spin Length 2 0.5 Connected to Water Softener 2 0.5 Heat Own Water 2 0.5 Lid Lock 2 0.5 Hand Washables 1 0.2 Door Size 1 0.2 On Wheels 1 0.2 Electrical Compatibility 1 0.2



### 45 

# 00 

# 001

## Some manufacturers believe that the California standards will eliminate top-loading

access to the washtub. That assertion ignores the fact that top-loading washers using a horizontal-axis (or other high-water-efficiency platforms) are already on the market; one U.S. manufacturer has been selling a top-loading, horizontal-axis washer for years, and the design is common overseas.98 Moreover, door location is not important to the vast majority of consumers. As Table 9 shows, consumers ranked price, energy and water efficiency, and capacity as the most important features, with door placement listed as a "top five" attribute by only 13.5 percent of the survey participants. (Wash tub axis orientation was even further down the list.)99
In fact, before this most recent DOE RCW rulemaking, DOE had viewed frontloading and top-loading washers as two distinct product classes deserving of individual treatment in standards. During much of the rulemaking, however, DOE proposed to remove the separate subcategories, believing that there was no basis for maintaining separate classes for horizontal and vertical clothes washers.10° This sentiment was supported by major appliance manufacturers both in the RCW rulemaking and in a different proceeding under the Federal Trade Commission, which in 2000 eliminated the distinction between front loading and top loading RCW in its energy performance labeling requirements. 101, 102 Thus, DOE itself concluded that a top-loading feature does not by itself provide significant consumer utility.103 This conclusion seems to be borne out by the large market share claimed by front-loading washers despite their higher price. Moreover, many consumers prefer horizontal-axis machines. For example, in recent surveys by the SDCWA Voucher Incentive Program, 100 percent of participants responded that their high-efficiency washers (some of which were horizontal-axis)

98 The Energy Star list of residential washers updated 2/ 16/05 shows that the Staber HXW2304 has a water factor of 6.3 gallons/cubic foot. 99 Final Rule Technical Support Document (TSD): Energy Efficiency Standards for Consumer Products: Clothes Washers" U.S. Department of Energy, Washington, DC 20585, December 2000, App. J, p. J-3. too 65 Fed. Reg. 16134 (March 27, 2000). 66 Fed. Reg. 3322 (Jan. 12, 2001). 102 65 Fed. Reg. 16134 (March 27, 2000). ,03 Nonetheless, the DOE ultimately maintained the subcategory distinction because if felt that the two technology types had unequal potential for future efficiency improvements.



# 46 0000107

## worked better than their old machines

. 104,105 Similar results were reported by the

NEEA and its member utilities . They conducted customer satisfaction surveys as part of their WashWise residential clothes washer program in 1997 and 1998 and found that "[b]oth purchasers and retailers are very impressed with the RECW [resource

-efficient clothes washers]. Purchasers rated the machines extremely high (95% to 99% very or somewhat satisfied) on a wide range of product attributes. A total of 91 % would recommend their RECW to a friend. Retailers thought that RECWs cleaned clothes better (88%) and were worth the money (89%) at current incremental costs."106 In fact , customer satisfaction was so high that NEEA stopped conducting surveys on that issue.. These extraordinarily high satisfaction levels were measured over five years ago when the selection of high-efficiency washers and their associated features were substantially smaller than it is today. As with the SDCWA participants, in the NEEA surveys owners of both top-loading and front-loading high efficiency washers were represented, but front-loading owners were a large portion of the survey population.
A DOE demonstration study in Bern, Kansas, implemented in the mid-1990s with cooperation from Maytag Corporation , also demonstrated substantial customer satisfaction with horizontal

-axis machines:107 Baseline washer performance data as well as customer washing behavior were obtained from data collected on the existing washers of more than 100 participants in this instrumented study. Following a 2- month initial study period, all conventional washers were replaced by high-efficiency, tumble action washers, and the experiment continued for another 3-month period. Based on measured data from over 20,000
104 San Diego County Water Authority Residential Voucher Incentive Program, Fiscal Year 2004, Second Quarterly Report, October 1, 2003 - December 31, 2003, p. 12. 105 San Diego County Water Authority Residential Voucher Incentive Program, Fiscal Year 2004, "First Quarterly Report, July 1, 2003 - September 31, 2003, p. 12. 106 Executive Summary, Pacific Energy Associates, Report #E98-003, "Market Progress Evaluation Report: WashWise Program," January 1998 (www.nwalliance.org/resources/reports/03ES.pdf). 107 DOE, Energy Division, Bern Clothes Washer Study (1998, Oak Ridge National Laboratory) (www.energystar.gov/ia/partners/manuf res/bernstudy.pdf).

47 0 

# 00010 8

## loads of laundry, the impact of the washer replacement on (1)

individual customers' energy and water consumption, (2) customers' laundry habits and perceptions, and (3) the community's water supply and waste water systems were determined and are reported..... [¶] The data and subsequent analyses also showed that across all loads, temperature settings, use of detergent and other additives, participants found the cleaning performance of the h-axis technology to be generally superior to their phase I v-axis washer irrespective of its age. .... [¶] The study showed that, on average, participants' overall satisfaction with the cleaning performance of the h-axis washer over their original v-axis washer was much improved. .... [¶] Participants appeared tobe much more satisfied with the dryness of loads removed from the haxis washer than from the typical, phase I v-axis washer.Like the other studies discussed above, the DOE Bern study was based on firstgeneration front-loading products, and substantial innovation has occurred since that time, making the machines even more consumer-friendly. Our final point with regard to customer utility concerns the argument that special needs customers must have top-loading machines, or that front-loaders are less "senior friendly" because the user has to bend over to load them. If this is truly a large concern, it is unclear why this does not appear also to be a problem for dryers. Moreover, because many models of front-loading washers can address the ease of access issue by using a tilted horizontal-axis (e.g. the Maytag Neptune), or by raising the washer onto a pedestal that can also conveniently serve as storage space, we believe that these arguments are without merit. We also note that front-loaders are more convenient for consumers in wheel chairs.

Sizes, Capacities , and Volumes High-water-efficiency RCW have cabinet and tub sizes that are comparable to those -available in less-efficient models. There is no evidence that the California standards will restrict or significantly affect the sizes, capacities, or volumes available in California. Because there are very few horizontal-axis machines with tub sizes substantially below 1.6 cubic feet, it is possible that there may be fewer products available with small tub sizes after the 2010 6.0 WF standard takes effect, as a result of greater sales of horizontal-axis machines. However, there is no indication that small tub

48 

# U0001 09

## size is a desired attribute per se. Our understanding is that the growth in sales of

very small machines was a by-product of manufacturers' attempts to make stackable,vertical-axis washer-drier units that fit in apartments. Larger-volume, horizontalaxis washers with the same size and stack-ability attributes are now available and will be available in the 6.0 water factor range after the implementation of the 2010 standard. Furthermore, recent laboratory testing by Seattle Public Utilities confirms that larger-capacity, high-efficiency washers scale down their water use quite effectively for smaller load sizes, so potential efficiency impacts of this market change, if it occurs, would not be counter-productive.' 08

Y L Conclusion California has unique and compelling interests in obtaining a waiver from preemption for its RCW standards. The standards were developed by the Energy Commission at the direction of the California Legislature, and they are needed to implement the State's water and energy policies and planning processes. The California standards are the best approach for achieving substantial water savings inresidential clothes washers. They offer the most comprehensive, highestpersistence; lowest-burden solution of all of the available alternatives. The standards create economic and environmental benefits, do not place significant burdens on industry, and do not significantly restrict performance or features. We respectfully request that DOE grant a waiver from preemption.

108 Personal communication with Dave Broustis, Seattle Public Utilities, August 12, 2004.



## 49 oilUV61i

# Department of Energy

### U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W., Room 7260 Washington, D.C. 20530-0001 MSR:HTByron DJ # 145-19-1120 H. Thomas Byron III Tel: (202) 616-5367 H.Thomas.Byron @ usdoj.gov Fax: (202) 514-9405 

### September 5, 2007 c) 

### Ms. Cathy Catterson

^4 

### Clerk, U.S. Court of Appeals C) r' i C) for the Ninth Circuit C) C 1 

### 95 Seventh Street San Francisco , CA 94103
Re: California Energy Commission v. Department of Energy , 

### No. 07-71576 rt cri

v M%



### Dear Ms. Catterson: C) m 

### c,



### Please find enclosed for filing in the captioned matter, an original and four copies of the Certified Index to the Administrative Record. One copy is being served on counsel of record listed below, accompanied by a CD-ROM with electronic copies of the record materials. We would appreciate it if the extra copy of this letter could be date-stamped and returned to us in the enclosed, postage-paid envelope. Thank you for your attention to this matter.
Sincerely,

H. THOMAS BYRON III Attorney, Appellate Staff Civil Division

cc: 

### Jonathan Blees, Esq. Charles A. Samuels, Esq. California Energy Commission Mintz Levin 1516 Ninth Street, MS 14 701 Pennsylvania Avenue, N.W., #900 Sacramento, CA 95814 Washington D.C. 20004 (916) 324-3237 (202) 434-7311

### IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CALIFORNIA ENERGY COMMISSION, ) Petitioner, ) No.07-71576 v. )
) ) 

### DEPARTMENT OF ENERGY, ) Respondent. )

CERTIFIED INDEX TO THE ADMINISTRATIVE RECORD rte: C) r--^ c•

c



### I certify that to the best of my knowledge and belief the materials identified in the attached lists constitute the complete administrative record for Docket No

. EE-RM-PET-100, which pertains to the notice of denial of the California Energy Commission Petition for Exemption from Federal Preemption of California ' s Water Conservation Standards for Residential Clothes Washers, 71 Fed. Reg. 78157 (December 28, 2006).
Executed on this 5 day of September 2007.

David E. Rodgers Deputy Assistantecretary for Energy Efficiency Office of Technology Development Energy Efficiency and Renewable Energy United States Department of Energy



# 0 0001.12RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number : EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date: April 7, 2006
COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER
01 10/06/051 Jonathan Blees California Energy Commission (CEC)

09/13/05 Assistant Chief Counsel 1516 Ninth Street Sacramento , CA 95814-5512

01A Website Materials [www.waterplan.-tirater.ca.gov/previous/bl6O-98/TOC.cfin] California Water Plan - Bulletin 160-98
• Executive Sununary • Front Matter • Chapter 1- Introduction • Chapter 2 - Current Events in California Water Management • Chapter 3 - Water Supplies • Chapter 4 - Urban, Agricultural, and Environmental Water Use • Chapter 5 - Balancing Supply and Demand • Appendix ESSA - Regional Water Budgets with Existing Facilities and Programs • Appendix ES5B

- Regional Water Budgets with Options Likely to Be Implemented • Abbreviations/Acronyms
• Volume 1 • Front Matter • Chapter 1- Introduction • Appendix 1A - Comparison of 2020 Average Year Forecasts Between Bulletin 160-93 and Bulletin 160-98 • Appendix 1B - Summary of Public Comments on Draft Bulletin 160-98 • Chapter 2 - Recent Events in California Water • Appendix 2A - Institutional Framework for Allocating and Managing Water Resources in California • Chapter 3 - Water Supplies • Chapter 4 - Urban, Agricultural, and Environmental Water Use

-1of25- 

## GRULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers Docket Number : EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date : April 72006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 01A (cont.) Website Materials fwww.waterplan.water.ca.gov/previoustbl60-98frOC,cfm ] California Water Plan - Bulletin 160

-98 (Volume 1 cont.) ® Appendix 4A

- Urban and Agricultural Water Pricing ® Appendix 4B

- BMP Revisions and Water Savings Assumptions ® Appendix 4C - Normalizing Urban Water Use Data ® Chapter 5

- Technology in Water Management

® Volume 2 ® Front Matter ® Chapter 6 - Evaluating Options From a Statewide Perspective ® Appendix 6A

- Regional Water Budgets with Existing Facilities and Programs ® Appendix 6B - Applied Water Shortages by Hydrologic Region with Existing Facilities and Programs ® Appendix 6C

- Estimating a Water Management Option 's Unit Cost ® Appendix 6D - Calculation of Minimum New Water Needs ® Appendix 6E - Net Water Budgets ® Appendix 6F - Land Retirement Analysis in Drainage

-Impaired Areas ® Appendix 6G

- Review and Evaluation of Statewide-Level Storage Facilities That Could Be Included in CALFED ® Chapter 7 - Options for Meeting Future Water Needs in Coastal Regions of California ® Appendix 7A

- Options Evaluations for Coastal Regions ® Chapter 8 - Options for Meeting Future Water Needs in Interior Regions of California ® Appendix 8A

- Options Evaluations for Interior Regions ® Chapter 9

- Options for Meeting Future Water Needs in Eastern Sierra and Colorado River Regions of California ® Appendix 9A - Options Evaluations for the Eastern Sierra and Colorado River Regions ® Chapter 10 - Conclusions ® Appendix 10A - Regional Water Budgets with Likely Options ® Abbreviations and Acronyms

® Glossary ® Metric Conversion Page

-2of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Feder I Preemption of California's Water Conservation Standards for Residential Clothes Washers Docket Number: EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date : April 7, 2006 COMMENT DATE NUMBER RECEIVED! NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE 1OF LETTER 01A (cont.) Website Materials rlittp://www.waterplan.water.ca.goy/cwpuZOOS/index.cfml

California Water Plan Update 2005 ® Water Plan Highlights

Volume I

- Strategic Plan ® Cover pages (04.12.05) ® Introduction (04.12.05) r A Framework for Action (04.12.05) ® California Water Today (04.12.05) ® Preparing for an Uncertain Future (04.12.05) ® Implementation (04.12.05) ® Reference ® Back Cover

Volume 2 - Resource Management Strategies

® Cover ® Table of Contents ® Introduction ® Agricultural Land Stewardship ® Agricultural Water Use Efficiency ® Conjunctive Management and Groundwater Storage ® Conveyance

-3of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers Docket Number : EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date : April 7, 2006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 01A (cont.) Website Materials Flittp ://www.watei-plan

. water.ca.gov/cwpu2OO5/index.cfnil

California Water Plan Update 2005 - ( Volume 2 cont.) ® Desalination • Drinking Water Treatment and Distribution ® Economic Incentives (Loans, Grants, and Water Pricing) ® Ecosystem Restoration ® Floodplain Management ® Groundwater Remediation /Aquifer Remediation ® Matching Water Quality to Use ® Pollution Prevention ® Precipitation Enhancement ® Recharge Area Protection ® Recycled Municipal Water • Surface Storage -- CALFED • Surface Storage -- Regional/Local • System Reoperation • Urban Land Use Management e Urban Runoff Management • Urban Water Use Efficiency • Water Transfers • Water-Dependent Recreation ® Watershed Management • Other Strategies ® References • Back Cover

-4of25-RULE MAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers Docket Number : EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closin Date : A ril 7, 2006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 01A (cont.) Website Materials [http ://www.waterplan.water.da.gov/cwl2t12OQ

. 5 /index.cfml California Water Plan Update 2005 ® Volume 3 - Regional Reports o Cover • Table of Contents o State Summary o North Coast o San Francisco Bay o Central Coast o South Coast o Sacramento River • San Joaquin River ® Tulare Lake • North Lahontan • South Lahontan • Colorado River ® Sacramento - San Joaquin Delta • Mountain Counties ® References o Back Cover • Volume 4 - Reference Guide • Cover o Table of Contents o Introduction Editors Message • Background Cover o A California Water Chronology (by the Water Education Foundation)

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DATE OF LETTER 01A (cont.) Website Materials [http://www.waterplan

.water.ca.gov/cwpu2OO5/index.cfm]

California Water Plan Update 2005 - (Volume 4 cont.)

• A Look Back at Past California Water Plans o Bay Delta Standards Contained in D- 1641 o Selected Task Force and Advisory Panels o Selected Water Prices in California • Water Allocation, Use and Regulation in California ® What's So Special About Special Districts? A Citizen's Guide to Special Districts in California (Third Edition) (by Kimia Mizany & April Manatt, CA Senate Local Government Committee) ® Crop Water Use Cover • Preface Central Valley Crop Classification Processing Using Remote Sensing and GIS Technologies (by Jeff Milliken, Mariette Shin, David Hansen, Charles Johnson, Michael Sebhat, Joel Zander - USBR Mid Pacific Region) ® CUP (Consumptive Use Program) Model (by Morteza Orang, Richard Snyder, Scott Matyac, DWR and UC Davis) ® Evaporation Research -- A Review and Interpretation (by C.M. Burt, A.J. Mutziger, R.G. Allen, and T.A. Howell) ® Evapotranspiration and Relative Contribution by the Soil and the Plant (by Theodore Hsiao and Liukang Xu, UC Davis) • Evapotranspiration from a Satellite-Based Surface Energy Balance for the Snake Plain Aquifer in Idaho (by Richard G. Allen, Anthony Morse, Masahiro Tasumi, Ricardo Trezza, Wim Bastiaanssen, James L. Wright, and William Kramber)



## C P -6of25-RULE MAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers Docket Number: EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date: April 7, 2006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 01A (cont.) Website Materials [littp: //www.waterp lan.water.ca.gov/cwpu2OO5/l*ndex.cfnij California Water Plan Update 2005 - (Volume 4 cont.) • Limits to the Productivity of Water in Crop Production (by Andrew Keller and David Seckler) ® Model for Estimating Evaporation and Transpiration from Row Crops (by Francesca Ventura, Ben A. Faber, Khaled M. Bali, Richard L. Snyder, Donatella Spano, Pierpaolo Duce, and Kurt F. Schulbach) originally published in Journal of Irrigation and Drainage Engineering, American Society of Civil Engineers. Nov/Dec 2001. Obtained from www.pubs.asce.org. ® The Promise of Regulated Deficit Irrigation in California's Orchards and Vineyards (by David Goldhamer and Elias Fereres, UC Davis, IAS-CSIC and University of Cordoba, Spain) • SIMETAW (Simulation of Evapotranspiration of Applied Water) (by Richard Snider, Morteza Orang, Shu Geng, Scott Matyac and Sara Sarreshteh, UC Davis and DWR)
® Data and Analytical Tools Cover • Future Quantitative Analysis for California Water Planning (by Ken Kirby, Active Curiosity Inc.) • Strategic Analysis Framework To Guide Future Development of Analytical Tools for Managing Water in California. Draft Report Summary. (by California Water and Environment Modeling Forum) • Survey of Irrigation Methods in California in 2001 (by Morteza Orang, Richard Snider and Scott Matyac, DWR and UC Davis) ® Quantified Scenarios of 2030 Water Demand (by David Groves, Pardee RAND Graduate School and Scott Matyac, and Tom Hawkins, DWR) • Environment Cover ® Applying the Public Trust Doctrine to River Protection (By Jan S. Stevens) • Considering Water Use Efficiency for the Environmental Sector (by Jeff Deason, Jessica Fast, Lisa Scroeer, Brian Turner and Renske van Staveren, UC Berkeley) • Recommendations Regarding Scenarios and Application of Environmental Water "Demands" in the State Water Plan Update & Quantification of Unmet Environmental Objectives in State Water Plan 2003 Using Actual Flow Data for 1998, 2000, and 2001 (by Environmental Defense)
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DATE OF LETTER 01 A (cont.) Website Materials [http ://www.watex

-plan.water

.ca.gov/cwpu2005/l*ndex.cfml California Water Plan Update 2005 - (Volume 4 cont.)

• Environmental Justice Cover • Environmental Justice in California Government (by Office of Planning and Research) • General Plan Guidelines Chapter 2: Sustainable Development and Environmental Justice (by Office of Planning and Research)
• Global Climate Change Cover ® Climate Change and California Water Resources: A Survey and Summary of the Literature (by Michael Kiparsky and Peter H. Gleick, Pacific Institute for Studies in Development, Environment and Security) ® Accounting For Climate Change (by Maurice Roos, DWR)
• Hydrology Cover ® California River Indices ® Frequency of a 100 Year Flood • Major Floods Since 1950 • Severity of Extreme Droughts in Sacramento and San Joaquin Valley

® Infrastructure Cover ® California's Major Water Projects ® California Surface Reservoirs • CALFED Bay-Delta Surface Storage Investigations Progress Report, April 2005 • (by DWR, USBR, and California Bay-Delta Authority) Final Report now available at DWR Surface Storage Investigations website. ® Hydropower Projects Re-licensing

-8of25-

C)RULE MAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers Docket Number : EE-RM-PET-100 FDMS Docket ID : EERE-2006-STD-0124 Closing Date: April 7, 2006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER OIA (cont.) Website Materials lhttp: //www.waterplan

. water

. ca.gov/cwt)u2005/index.cfnii California Water Plan Update 2005 - (Volume 4 cont.) o Landscape Water Use Cover ® Urban Landscape Evapotranspiration • (by Richard L. Snyder, University of California, Atmospheric Science, Davis, California, and Simon Eching, DWR) o Vegetative Assessment in an Urban Environment • (by Alan Walters, Agricast)
® Legislation Cover • Recent Water Legislation (by DWR Legislative Affairs Office) o Water Bonds o Water Plan Legislation ® Work Plan for Meeting Legal Requirements for the California Water Plan
® Litigation Cover o Joint Statement on the Monterey Amendments Litigation (by DWR, Central Coast Water Authority, State Water Contractors, Planning and Conservation League, Plumans County Flood Control and Water Conservation District, and the Citizens' Planning Association of Santa Barbara County) ® Summary of Significant Litigation 1998 - 2005 (by DWR, Office of Chief Counsel)

-9of25-RULE MAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers Docket Number : EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date : April 7, 2006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 01A (cont.) Website Materials [http://www.waterl2lan

.water.ca.gov/cwpu2005/index.cfml California Water Plan Update 2005 - (Volume 4 cont.) ® Planning Cover ® "Addressing California's Uncertain Water Future by Coordinating Long-Term Land Use and Water Planning: Is a Water Element in the General Plan the Next Step?" (by Ryan Waterman. Originally published in Ecology Law Quarterly, Volume 31, Issue I at page 117, Copyright (c) 2004 by the Regents of the University of California.) • Customer & Stake Holders Survey for CWP Update 2005 ® Financing Strategies and Guidelines for Funding Water Resource Projects (by David Kracman, Schlumberger Water Services) o Future Food Production and Consumption in California Under Alternative Scenarios (by Henrich Brunke Richard Howitt and , Daniel Sumner, University of California Agricultural Issues Center) • Future Scenarios Presented in Water Plan Update 2005 • Involving Stakeholders In Irrigation and Drainage District Decisions: Who, What, When, Where, Why, How • (by Lisa Beutler, Center for Collaborative Policy) Planning For Extreme and Prolonged Drought Conditions • Planning Framework for Water Plan Update • Strategic Planning Guidelines (by Department of Finance) • Tribal Consultation Cover . ® Interim Tribal Consultation Guidelines, Supplement to General Plan Guidelines (by Office of Planning and Research • Water Quality Cover o California Nonpoint Source Encyclopedia (prepared for SWRCB, by Tetra Tech, Inc.) • Californians Without Safe Water (by Monique Wilber) • California Water Quality in 2004 (written and edited by John Andrew, DWR) ® Glossary ® Reference o Back Cover

-10of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number: EE-RM-PET-100 )FMS Docket ID: EERE-2006

-STD-0124 Closin Date : A riiI 7, 2006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 02 12/07/05/ Jonathan Blees California Energy Commission (CEC)

12/05/05 Assistant Chief Counsel 1516 Ninth Street Sacramento , CA 95814-5512
02A 71FR6022 Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

/02/06/06 Preemption of California's Water Conservation Standards for Residential Clothes Washers; Petition for exemption.

[Federal Register Notice 71FR6022

- 71FR6025]
03 03/27/06! Jonathan Blees California Energy Commission (CEC)

03/27/06 Assistant Chief Counsel 1516 Ninth Street, MS-14 Sacramento , CA 95814-5512

04 03/28/06/ Julie Leimbach Sierra Nevada Alliance

03/28/06 Community Groups Coordinator P. O. Box 7989 South Lake Tahoe, CA 96158

05 03/28/06/ Daniel Carney Marin Municipal Water District

03/28/06 Water Conservation Manager 220 Nellen Avenue Corte Madera, CA 94925

06 03/28/06/ Chris DeGabriele North Marin Water District

03/28/06 General Manager 999 Rush Creek Place Post Office Box 146 Novato, CA 94948
07 03/28/06/ Jerry Jordan California Municipal Utilities Association (CMUA)

03/28/06 Executive Director 915 L Street, Suite 1460 Sacramento , CA 95814

-11of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number : EE-RM-PET-100 FDMS Docket ID : EERE-2006-STD-0124 Closing Date: April 72006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 08 03/29/06/ Stephen T. Guthrie EnerPath

03/29/06 President 1758 Orange Tree Lane Redlands, CA 92374

09 03/30/06/ Kathi Sheehan City of Yreka

03/29/06 Special Projects Manager, 701 Fourth Street

Water Conservation Coordinator Yreka, CA 96097

10 03/30/06/ Craig Perkins City of Santa Monica

03/29/06 Director of Environmental and 1685 Main Street, Suite 116

Public Works Management Department PO Box 2200 Santa Monica, CA 90407-2200

11 03/30/06/ Reginald A. Lamson Victor Valley Water District

03/30/06 District Engineer/Acting General Manager 17185 Yuma Street Victorville, CA 92392-5887

12 03/30/06/ Richard W. Hansen Three Valleys Municipal Water District

03/28/06 General Manager 1021 E. Miramar Avenue Claremont, CA 91711-2052

13 03/30/06/ Jo Lynne Russo-Pereyra Cucamonga Valley Water District

03/30/06 Assistant General Manager for External Affairs 10440 Ashford Street Rancho Cucamonga, CA 91729-0638

14 03/30/06/ Jeffrey Kightlinger Metropolitan Water District of Southern California (MWD)

03/29/06 General Manager Box 54153 Los Angeles, CA 90054-0153

- 12of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number : EE-RM

-PET-100 FDMS Docket ID : EERE

-2006-STD-0124 Closing Date : April l 2006
COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 15 03/30/06/ August A. Caires Padre Dam Municipal Water District

03/30/06 General Manager 9300 Fanita Parkway Santee, CA 92071
16 03/30/06/ William Pecsi Foothill Municipal Water District (FMWD)

03/21/06 General Manager 4536 Hampton Road, P.O. Box 686 La Canada Flintridge, CA 91012-0686

17 03/31/06/ J. B. Hoyt Whirlpool Corporation

03/31/06 Director, Government Relations 2000 M 63, Mail Drop 3005 Benton Harbor, IM 49022

18 03/31/06/ Tim D. Anderson Sonoma County Water Agency

03/31/06 Government Affairs Coordinator P.O. Box 11628 Santa Rosa, CA 95406

19 04/05/06/ James H. Bond San Diego County Water Authority

04/05/06 Chairman 4677 Overland Avenue San Diego , CA 92123-1233

20 04/04/06/ Bruce Michael Banks Santa Fe Irrigation District

03/21/06 P.O. Box 409 Rancho Santa Fe, CA 92067-0409

21 04/04/06/ Rob Whipple Elsinore Valley Municipal Water District

04/04/06 Conservation Specialist P.O. Box 3000 31315 Chaney Street Lake Elsinore, CA 92531

-13of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number: EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date: April 7,2006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 22 04/05/06/ Stephen T. Conley Long Beach Water Department

03/30/06 President of the Board of Water Commissioners 1800 East Wardlov Road Long Beach, CA 90807-4994

23 04/05/06/ Robert Apodaca Central Basin Municipal Water District

03/31/06 President 17140 S. Avalon Blvd, Suite 210 Carson, CA 90746-1296

24 04/05/06/ William A. Baker West Basin Municipal Water District

03/31/06 President 17140 S. Avalon Blvd, Suite 210 Carson, CA 90746-1296

25 04/05/06/ Kent Knutson The Home Depot

04/04/06 Vice President, Government Relations 101 Constitution Avenue, NW, Suite 800 West Washington, DC 20001

26 04/05/06/ James D. Kuykendall, PE Channel Islands Beach Community Services District

03127/06 General Manager 353 Santa Monica Drive Channel Islands Beach, CA 93035-4473

27 04/05/06/ Steve Mack City of Santa Barbara

04/04/06 Water Resources Manager Public Works Department 630 Garden Street P.O. Box 1990 Santa Barbara, CA 93102-1990 28 04/05/06/ Daniel Terheggen Multi-housing Laundry Association (MLA)

04/05/06 President 1500 Sunday Drive, Suite 102 Raleigh, NC 27607

-14of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number: EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date: April 72006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 29 04/05/06/ Ken Weinberg San Diego County Water Authority

04/05/06 Director of Water Resources 4677 Overland Avenue San Diego, CA 92123-1233

30 04/06/06/ Richard Bollard Fisher & Paykel Appliances

04/05/06 78 Springs Road, East Tamaki P.O. Box 58 732, Greenmount Auckland, New Zealand 31 04/06/06/ Steven Rosenstock, P.E. Edison Electric Institute (EEI)

04/06/06 Manager, Energy Solution 701 Pennsylvania Avenue, NW Washington, DC 20004-2696 [See comment #78 for withdrawal comment]
32 04/03/06/ Gina Garbolino City of Roseville

04/03/06 Mayor City Council 311 Vernon Street Roseville, CA 95678-2649 33 04/03/06/ Dr. Peter H. Gleick Pacific Institute for Studies in Development, Environment, and

04/03/06 President Security 654 13th Street, Preservation Park Oakland, CA 94612 34 04/06/06/ Dr. Brian Brady Rancho California Water District (RCWD)

04/06/06 General Manager 42135 Winchester Road P.O. Box 9017 Temecula, CA 92589-9017
35 04/06/06/ Stephen R. Yurek Air-Conditioning and Refrigeration Institute (ARI)

04/06/06 General Counsel, 4100 N. Fairfax Drive, Suite 200

Vice President, Policy and Public Affairs Arlington, VA 22203

-15of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number: EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date: April 7, 2006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 36 04/06/06! Kyle Pitsor National Electrical Manufacturers Association (NEMA)

04/06/06 Vice President, Government Relations 1300 North 17th Street, Suite 1847 Rosslyn, VA 22209

37 04/06/06/ Timothy C. Jochem Upper San Gabriel Valley Municipal Water District

04/06/06 General Manager 113 10 Valley Boulevard El Monte, CA 91731 38 04/06/06/ Joseph M. Mattingly Gas Appliance Manufacturers Association, Inc. (GAMA)

04/06/06 Vice President, 2107 Wilson Boulevard, Suite 600

Secretary and General Counsel Arlington, VA 22209 39 04/06/06/ Steve Soghomonian City of Burbank

04/06/06 Account Manager Burbank Water and Power P.O. Box 631 Burbank, CA 9 1 503-063 1 40 04/06/06/ David Bolland Association of California Water Agencies (ACWA)

04/04/06 Senior Regulatory Advocate 910 K Street, Suite 100 Sacramento, CA 95814-3577
41 04/07/06/ Noah Horowitz Natural Resources Defense Council (NRDC)

04/06/06 Senior Scientist I 1 l Sutter Street, 20th Floor San Francisco, CA 94104 Ronnie Cohen Senior Policy Analyst 42 04/07/06/ Dennis Erdman Crescenta Valley Water District

04/06/06 General Manager 2700 Foothill Boulevard La Crescenta, CA 91214



### 16of25- C,RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number: EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date: April 72006
COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 43 04/07/06/ Donald R. Kendall, Ph.D., P.E. Calleguas Municipal Water District

04/06/06 General Manager 2100 Olsen Road Thousand Oaks, CA 91360-6800
44 04/07/06/ Gary B. Fernstrom Pacific Gas and Electric Company (PG&E)

04/06/06 Mail Code N6G, P.O. Box 770000 San Francisco, CA 94177 45 04/07/06/ David Weaver City of Glendale, California

04/06/06 Mayor 613 East Broadway, Suite 200 Glendale, CA 9 1 206-439 1
46 04/07/06/ Ronald F. Deaton Department of Water and Power the City of Los Angeles

04/06/06 General Manager Box 51111 Los Angeles, CA 90051-5700 47 04/07/06/ Charles B. Hamilton Carpinteria Valley Water District

04/07/06 General Manager/Secretary 1301 Santa Ynez Avenue, P.O. Box 578 Carpinteria, CA 93014 48 04/07/06/ Paul D. Jones II Irvine Ranch Water District (JRWD)

04/06/06 General Manager 15600 Sand Canyon Avenue, P.O. Box 57000 Irvine, CA 92619-7000
49 04/07/06/ John Rossi Western Municipal Water District

04/06/06 General Manager 450 Alessandro Blvd. Riverside, CA 92508
50 04/07/06/ Phil Manthei Alliance Laundry Systems LLC

04/07/06 Sr. Staff Engineer, Agency/Codes Approval Shepard Street, P.O. Box 990 Ripon, WI 54971-0990

- 17of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number : EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date : April 72006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 51 04/07/06/ John K. Hawks California Water Association

04/07/06 Executive Director 601 Van Ness Avenue, Suite 2047 Mail Code #E3-608

- San Francisco, CA 94102-3200 52 04/07/06/ David Calabrese Association of Home Appliance Manufacturers (AHAM)

04/07/06 Vice President, Government Relations 1111 19`h Street, NW, Suite 402 Washington, DC 20036 53 04/07/06/ David P. Steiner Maytag Corporation

04/07/06 Vice President Government Affairs 701 Pennsylvania Avenue NW, Suite 750 Washington, DC 20005
54 04/07/06/ John DiStasio Sacramento Municipal Utility District (SMUD)

04/06/06 Assistant General Manager P.O. Box 15830

Energy Delivery and Customer Services Sacramento, CA 95852-1830 55 04/07/06/ Earl F. Jones General Electric Consumer & Industrial

04/07/06 Sr. Counsel, Government and Industrial Relations Appliance Park 2-225

[Response of GE Consumer & Industrial to the CEC's Louisville, KY 40225
petition] 56 04/07/06/ Phil Brun City of Napa Water Division

04/07/06 General Manager , Water Division 1340 Clay Street Napa, CA 94559
57 04/07/06/ Paul Piraino Alameda County Water District (ACWD)

04/07/06 General Manager 43885 South Grimmer Boulevard, P.O. Box 5110 Fremont, CA 94537-5 1 1 0

0

C 0 -18of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number: EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date: April 7, 2006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 58 04/07/06/ David C. McCollom Olivenhain Municipal Water District

04/07/06 General Manager 1966 Olivenhain Road Encinitas, CA 92024
59 04/07/06/ Walter J. Bishop Contra Costa Water District (CCWD)

04/07/06 1331 Concord Avenue, P.O. Box H2O Concord, CA 94524 60 04/07/06/ Brian A. Ragland City of Downey

04/07/06 11111 Brookshire Avenue Downey, CA 90241

61 04/07/06/ Mary Ann Dickinson California Urban Water Conservation Council

04/07/06 Executive Director 455 Capitol Mall, Suite 703 Sacramento, CA 95814

62 04/07/06/ William E. Bloomfield, Jr. Web Service Company (WEB)

03/30/06 President 3690 Redondo Beach Ave. Redondo Beach, CA 90278
63 04/11/06/ Frances Spivy-Weber Mono Lake Committee

03/28/06 Executive Director, Policy P.O. Box 29 Hwy 395 and Third Street Lee Vining, CA 93541 64 04/11/06/ Mariann Long City of Anaheim

03/28/06 Business and Community Programs Manager Public Utilities Department Business and Community Programs 201 S. Anaheim Boulevard, Suite 801 Anaheim, CA 92805

-19of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number: EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date : April 7, 2006
COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 65 04/11/06/ Miles A. Ferris City of Santa Rosa

03/28/06 Director of Utilities Utilities Department Water Conservation Division 69 Stony Circle Santa Rosa, CA 95401
66 04/11/06/ Anthony J. Pack Eastern Municipal Water District (EMWD)

03/29/06 General Manager P.O. Box 8300 Perris, CA 92572-8300 67 04/11/06/ Shauna Lorance San Juan Water District

03/30/06 General Manager P.O. Box 2157 Granite Bay, CA 95746 68 04/11/06/ Zigmund Vays Community Enhancement Services

03/30/06 President 1335 N. La Brea Ave., Suite 3 Los Angeles, CA 90028
69 04/11/06/ Dan Masnada Castaic Lake Water Agency

03/31/06 General Manager 27234 Bouquet Canyon Road Santa Clarita, CA 91350-2173 70 04/11/06/ Kevin P. Hunt Municipal Water District of Orange County

04/03/06 General Manager 10500 Ellis Avenue P.O. Box 20895 Fountain Valley, CA 92728
71 04/11/06/ Scott Heule Department of Water and Power

04/04/06 Assistant General Manager City of Big Bear Lake 41972 Garstin Drive P.O. Box 1929 Big Bear Lake, CA 92315

-20of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number : EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date : April 7, 2006
COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 72 04/13/06/ Kim Krause City of Del Mar

03/21/06 Finance Director/Treasurer 1050 Camino Del Mar Del Mar, CA 92014-2698 73 04/13/06/ Mark Watton Otay Water District

03/21/06 General Manager 2554 Sweetwater Springs Boulevard Spring Valley, CA 91978-2096
74 04/13/06/ John B. Linden Helix Water District

03/22/06 President 7811 University Avenue

Board of Directors La Mesa, CA 91941-4927 75 04/13/06/ Flordeliza Misra Dublin San Ramon Services District

03/29/06 Acting Operations Manager 7051 Dublin Boulevard Dublin, CA 94568 76 04/04/06/ George V. Voinovich United States Senate

04/04/06 United States Senator 524 Hart Senate Office Building Washington, DC 20510-3504 77 04/13/06/ Daniel Terheggen Consolidated Smart Systems

04/05/06 President 620 West 135th Street Gardena, CA 90248
78 05/09/06/ Steven Rosenstock, P.E. Edison Electric Institute (EEl) Manager, Energy Solution 701 Pennsylvania Avenue, N.W. Washington, DC 20004-2696 [Continent Withdrawn] 79 05/15/06/ Jonathan Blees California Energy Commission (CEC)

05/15/06 Assistant Chief Counsel 1516 Ninth Street Sacramento, CA 95814-5512

-21 of25-

### RULE MAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number: EE-RM-PET-100 FDMS Docket ID : EERE-2006-STD-0124 Closing Date: April 7, 2006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 80 05/17/06/ Christopher A. Korst Rent-A-Center, Inc. (RAC)

04/14/06 Senior Vice President 5700 Tennyson Parkway

General Counsel & Secretary Third Floor Plano, TX 75024 81 05/26/06/ David Calabrese Association of Home Appliance Manufacturers (AHAM)

05/25/06 Vice President, Government Relations 1111 19th Street, NW, Suite 402 Washington, DC 20036 82 07/26/06/ Larry Farwell Sacramento Water Forum

07/26/06 Consultant 2476 San Marcos Pass Road Santa Barbara, CA 93105-9720 83 11/20/06/ Minutes to the meeting with Whirlpool

11/14/06

84 Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

/12/28/06 Preemption of California's Water Conservation Standards for Residential Clothes Washers

[Federal Register Notice 71 FR 78157 December 28, 2006] 85 01/30/07/ Jonathan Blees California Energy Commission (CEC)

01/29/07 Assistant Chief Counsel 1516 Ninth Street Sacramento , CA 958 1 4-55 12 [CEC request for Reconsideration] 86 02/20/07/ David B. Calabrese Association of Home Appliance Manufacturers (AHAM)

02/16/07 Vice President 111 119th Street, NW, Suite 402

Government Relations Washington, DC 20036 [AHAM's comments in response to CEC's request for Reconsideration]

-22of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number : EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date: April 7, 2006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 87 66FR3314 Energy Conservation Program for Consumer Products: Clothes Washer Energy Conservation Standards; Final rule.

/01/12101 [Federal Register Notice 66FR3314 - 66FR3333] 88 Final Rule Technical Support Document (TSD): Energy Efficiency Standards for Consumer Products: Clothes Washers

/12/2000 [Environmental Assessment and Regulatory Impact Analysis] 89 Regulatory Impact Analysis For Proposed Energy Conservation Standards For Residential Clothes Washers

/09/2000 90 Senate Report Number 100-6, 100th Congress ISt Session (1987)

/01/6/87 [This is a Senate report accompanying NAECA, which DOE cites in developing its interpretation of the Statute] 91 Douglass L. Faulkner U.S. Department of Energy (DOE)

/11/18/05 Acting Assistant Secretary Energy Efficiency and Renewable Energy 1000 Independence Avenue, SW Washington, D.C. 20585-0121 [Letter from Douglass Faulkner to Jonathan Blees stating that the petition failed to comply with requirements set out in 10 CFR 430.42c] 92 Douglass L. Faulkner U.S. Department of Energy (DOE)

/12/23/05 Acting Assistant Secretary Energy Efficiency and Renewable Energy 1000 Independence Avenue, SW Washington, D.C. 20585-0121 [Letter from Douglass Faulkner to Jonathan Blees stating that DOE has accepted the California 's petition filing signed by Richard Moorer]

C.

C)

C.1 0 -23of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number : EE-RM-PET-100 FDMS Docket ID : EERE-2006-STD-0124 Closing Date: April 7, 2006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 93 Richard F. Moorer U.S. Department of Energy (DOE)

/04/14/06 Deputy Assistant Secretary Technology Development Energy Efficiency and Renewable Energy 1000 Independence Avenue, SW Washington, D.C. 20585-0121 [Letter from Richard Moorer to Jonathan Blees stating the comment period for the petition has closed and invite the CEC to provide rebuttal statement to the comments DOE has received] 94 United States Courts of Appeals

/04/20/07 For The Ninth Circuit Civil Appeals Docketing Statement

[California Energy Commission (CEC) Petitioner, v. United States Department of Energy (DOE) and Samuel W. Bodman, Secretary of Energy. CEC petitions the court for review of the Denial by DOE]
95 06/04/07 01/10/07 -From Christopher Calamita (DOE) to Jonathan Blees U.S. Department of Energy (DOE) (CEC) Technology Development 0 1/26/07- From Christopher Calamita to Chester Hong (CEC) Energy Efficiency and Renewable Energy 01/29/07- From Jonathan Blees to Michael McCabe (DOE) 1000 Independence Avenue, SW 03/01/07- From Christopher Calamita to Jonathan Blees (CEC) Washington, D.C. 20585-0121 04/18/07- From Jonathan Blees to Bryan Berringer (DOE) 04/19/07- From Christopher Calamita to Jonathan Blees (CEC)
[E-mail communication between the Department of Energy and California Energy Commission post finalization]

-24of25-RULEMAKING TITLE: Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers 

### Docket Number: EE-RM-PET-100 FDMS Docket ID: EERE-2006-STD-0124 Closing Date: April 7, 2006 COMMENT DATE NUMBER RECEIVED/ NAME & TITLE OF COMMENT AFFILIATION & ADDRESS OF COMMENT

DATE OF LETTER 96 United States Courts of Appeals

/06/18/07 For The Ninth Circuit Civil Appeals Docketing Statement.

No. 07-71576 [California Energy Commission (CEC) Petitioner, v. United States Department of Energy (DOE) and Samuel W. Bodman, Secretary of Energy. Response of Petitioner California Energy Commission (CEC) in opposition to respondent Department of Energy's (DOE) Motion to Dimiss]

FDMS Web Submissions: EERE-2006-STD-0124
FDMS 0006 This was a Federal Register Notice that was posted in the wrong docket. The Federal Register was withdrawn and attached to the proper docket within FDMS.
FDMS 0007 This was a Federal Register Notice that was posted in the wrong docket. The Federal Register was withdrawn and attached to the proper docket within FDMS.
FDMS 0008 71FR35419 Energy Efficiency Program for Consumer Products: California Energy Commission Petition for Exemption From Federal

/06/20/06 Preemption of California's Water Conservation Standards for Residential Clothes Washers; Notice.

[Federal Register Notice 71FR35419 - 71FR35420]

-25of25-

## CERTIFICATE OF SERVICE

I hereby certify that I have, this 5th day of September, 2007, served one
copy of the foregoing Certified Index To The Administrative Record by sending it
by Federal Express for delivery the next business day to the counsel listed below:

Jonathan Blees, Esq. California Energy Commission 1516 Ninth Street, MS 14 Sacramento , CA 95814 

## (916) 324-3237

Charles A. Samuels, Esq. Mintz Levin 701 Pennsylvania Avenue, N.W., #900 Washington D.C. 20004 (202) 434-7311



# 0000138Federal Register /Vol, 71, No. 249 /Thursday, December 28, 2006 / Notices 78157

DEPARTMENT OF ENERGY Office of Energy Efficiency and Renewable Energy (Docket No

. EE-RM-PET-100] Energy Efficiency Program for Consumer Products : California Energy Commission Petition for Exemption From Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers AGENCY: Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Notice of Denial of a Petition for Waiver from Federal Preemption.
SUMMARY: The Department of Energy (hereafter "DOE") announces its denial, and the reasons therefore, of the California Energy Commission's Petition for Exemption from Federal Preemption of California's Water Conservation Standards for Residential Clothes Washers (hereafter "California Petition"). DATES: A request for reconsideration of the denial must be received by DOE not later than January 29, 2007. ADDRESSES : A request for reconsideration must submitted,identified by docket number EE-RMPET-100, by one the following methods: o 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. o 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. Instructions: All submissions received must include the agency name and docket number for this proceeding. FOR FURTHER INFORMATION CONTACT: Bryan Berringer, 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- 0371, or e-mail: Bryan.Berringer®ee.doe.gov; or Francine Pinto, Esq., or Chris Calamita, Esq., U.S. Department of Energy, Office of the General Counsel, GC-72, 1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-7432 or (202) 586-1777, e-mail: Francine.Pinto@hq.doe.gov or Christopher.Calamita@hq.doe.gov. SUPPLEMENTARY INFORMATION: 1. Summary of Today's Action II. Background A. Energy Conservation Standards under EPCA B. Preemption of State Standards 1. DOE Energy Conservation Standards for Residential Clothes Washers 2. Waiver of Preemption 3. Legislative History C. California Petition III. Effective Date Requirements of EPCA N. Analysis of the California Petition A. Necessity of State Regulation to Address Unusual and Compelling State Water Interests 1. Interests Substantially Different in Nature and Magnitude from those Prevailing in the United States Generally a. Consideration of "U.S. generally" b. Substantially different in nature or magnitude-analysis of California's water interests 2. Costs, Benefits, and Burdens of the State Regulation as Compared to Alternative Measures a. Cost benefit analysis b. Analysis of alternatives 3. Unusual and Compelling State Water Interests B. Impacts of California's Standards on Manufacturing, Marketing, Distribution, Sale or Servicing 1. Manufacturing and Distribution Costs 2. Effect on Competition and Smaller Entities 3. Redesign and Production 4. Proliferation of State Standards 5. Significant Impact on Manufacturing, Marketing, Distribution, Sale, or Servicing C. Availability of Product Performance Characteristics and Features 1. Top-Loading Residential Clothes Washers 2. Other Product Classes V. Denial VI. Approval of the Office of the Secretary 1. Summary of Today's Action DOE is denying a petition submitted by the California Energy Commission (CEC) for a waiver from Federal preemption of its residential clothes washer regulation contained in section 1605.2(p)(1) of the California Code of Regulations.' DOE is denying the petition for three separate and independent reasons. First, DOE is denying the petition because DOE does not have the statutory authority to prescribe a rule for California that would become effective by January 1, 2007, the first of two compliance dates contained in Title 20, section

r The Appliance Efficiency Regulations, (California Code of Regulations, Title 20, sections 1601 through 1608) dated January 2006, were adopted by the California Energy Commission on October 19, 2005, and approved by the California Office of Administrative Law on December 30, 2005. The Appliance Efficiency Regulations include standards for both federally-regulated appliances and non-federally-regulated appliances. 1605.2(p)(1) of the California Code of Regulations. Section 327(d)(5)(A) of the Energy Policy and Conservation Act (Pub. L. 94-163, as amended) (EPCA) requires that a final rule prescribed by DOE to grant a petition such as the California Petition must have an effective date at least three years following publication of the final rule. (42 U.S.C. 6297(d)(5)(A)) The California Petition does not comply with the effective date criteria in EPCA, and CEC has not petitioned for an effective date other than that provided in the California regulation. CEC has provided information only in the context of the compliance dates of the California regulation, and has not provided the information necessary for DOE to promulgate a rule with an effective that would be compliant under EPCA, i.e., a rule with an effective date three years following the date of issuance. Therefore, DOE denies the California Petition's waiver request. Second, CEC has not established by a preponderance of the evidence that the State of California has unusual and compelling water interests, a condition required by EPCA for DOE to grant California a waiver from Federal preemption. (42 U.S.C. 6297(d)(1)(B)) CEC did not provide sufficient support for what CEC alleges to be the costs and benefits of the California regulation presented in the petition. Further, CEC did not provide an appropriate analysis of non-regulatory alternatives for comparison to the California regulation. Without support for the likely costs and benefits associated with the California regulation and an appropriate alternatives analysis, DOE was unable to evaluate if the California regulation is "preferable or necessary" as compared to non-regulatory alternatives, which is a required showing in order for DOE to determine that an unusual and compelling water interest exists. (42 U.S.C. 6297(d)(1)(C)(ii)) Therefore, DOE cannot find that the California regulation is preferable or necessary as compared to non-regulatory alternatives, and denies the California Petition's waiver request. Third and finally, interested parties demonstrated by a preponderance of evidence that the State of California regulation would likely result in the unavailability of a class of residential clothes washers in California. Commenters submitted to DOE information demonstrating that the 2010 water factor (WF) standard would likely result in the unavailability of top-loader residential clothes washers in California. Thus, even if DOE had the authority to ignore or override the first effective date of the California

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regulation (i.e., 2007) and promulgate a rule that complied with the EPCA requirement that the rule not take effect for another three years, the rule would violate EPCA in another way, i.e., it would mandate the 6.0 WF standard in 2010, which would likely result in the unavailability of top-loader residential clothes washers. Therefore, under section 327(d)(4) of EPCA, DOE denies the California Petition's waiver request. (42 U.S.C. 6297(d)(4)) H. Background A. Energy Conservation Standards Under EPCA Part B of Title III of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. (42 U.S.C. 6291-6309) Products covered under the program, including residential clothes washers, are listed in section 322(a) of EPCA. (42 U.S.C. 6292(a)) Section 325(g) of EPCA establishes energy conservation standards for residential clothes washers and authorizes DOE to amend these standards. (42 U.S.C. 6295(g)) B. Preemption of State Standards Generally under the provisions of EPCA, where an energy efficiency standard is effective for a "covered product" under EPCA, including a standard for residential clothes washers, a State regulation concerning the energy efficiency, energy use, or water use of that product is preempted and is not effective. (42 U.S.C. 6297(c)) Section 322(a)(7) lists residential clothes washers as a product covered under Part B of Title III of EPCA. (42 U.S.C. 6292(a)(7)) DOE has established energy efficiency standards for residential clothes washers as a covered product under section 325(g)(4)(A), and those standards are currently in effect (10 CFR 430.32(g)). (42 U.S.C. 6295(g)(4)(A)) Therefore, State regulations concerning the water use of residential clothes washers are preempted by the Federal standards. EPCA provides several provisions in which the Federal standards do not preempt State regulation, but for residential clothes washers the only applicable exception from the preemption provision is if a waiver is granted under section 327(d). (42 U.S.C. 6297(c)(2)) 1. DOE Energy Conservation Standards for Residential Clothes Washers The initial Federal efficiency standards prescribed in EPCA, as amended by the National Appliance Energy Conservation Act of 1987 (Pub. L. No. 100-12) (NAECA), required an unheated rinse water option for residential clothes washers manufactured on or after January 1, 1988. (42 U.S.C. 6295(g)) On January 12, 2001, DOE issued a final rule establishing energy efficiency standards for five product classes of residential clothes washers (hereafter referred to as"the January 2001 final rule"): toploading compact; top-loading, standard;front-loading; top-loading, semiautomatic; and top-loading, suds-saving. 66 FR 3314. The January 2001 final rule established minimum energy efficiency standards, set forth in Table II.1, below, to become effective on January 1, 2004, and January 1, 2007. The January 2001 final rule constituted the second residential clothes washer rulemaking required by EPCA. DOE's standards for residential clothes washers are energy efficiency standards only; DOE has not set a water use requirement for residential clothes washers.2 (10 CFR 430.32(g))

TABLE 11.1.-FEDERAL RESIDENTIAL CLOTHES WASHER STANDARD LEVELS

Product class

Top-Loading, compact

.............................. Top-Loading, standard

.............................. Front- Loading

............................................ Top-Loading, Semi-automatic

................... Suds-saving

.............................................. Capacity Modified energy factor (ft.3/ kWh / cycle) (ft 3) Effective date 1/1/2004 Effective date 1/1/2007
< 1.6 0.65 ........................................................... 0.65 = 1.6 1.04 ........................................................... 1.26 1.04 ........................................................... 1.26 Unheated rinse water option .................... Unheated rinse water option .................... Unheated rinse water option Unheated rinse water option

2. Waiver of Preemption As stated above, Federal energy efficiency standards for residential products generally preempt State laws, regulations and other requirements concerning energy conservation testing, labeling, and efficiency standards. (42 U.S.C. 6297 (a)-(c)) Section 327(d) of EPCA sets forth the procedures and provisions for granting waivers from Federal preemption (hereafter " waiver") for particular State laws or regulations. (42 U.S. C. 6297 (d)) Section 327(d )(1)(A) of EPCA provides that any State or river basin commission with a State regulation regarding energy use, energy efficiency , or water use requirements for products regulated by DOE may petition
ZThe Energy Policy Act of 2005 (Pub. L. 109-58) amended EPCA with new energy efficiency and water conservation standards for commercial for a waiver of Federal preemption and seek to apply its own State regulation. (42 U.S.C. 6297( d)(1)(A)) Regulations implementing the statutory provisions regarding petitions for waiver from Federal preemption are codified at 10 CFR part 430 subpart D. Section 327(d )(1)(B) of EPCA requires a petitioner to establish "by a preponderance of the evidence " that its proffered regulation " is needed to meet unusual and compelling State or local energy or water interests ." (42 U.S.C. 6297 (d)(1)(B)) "[U] nusual and compelling " interests are defined as interests which: (i) Are substantially different in nature or magnitude than those prevailing in the United States generally; and (ii) Are such that the costs , benefits, burdens, and reliability of energy or water savings resulting from the State regulation make such regulation preferable or necessary when measured against the costs, benefits, burdens, and reliability of alternative approaches to energy or water savings or production , including reliance on reasonably predictable market-induced improvements in efficiency of all products subject to the State regulation." (42 U.S.C. 6297 (d)(1)(C)(i) and (ii)) The Secretary may not grant a waiver if he finds " that interested persons have established , by a preponderance of the evidence, that" the State regulation would " significantly burden manufacturing , marketing , distribution, sale, or servicing of the covered product on a national basis." (42 U.S.C. clothes washers. These new standards require products manufactured on or after January 1, 2007, to have a modified energy factor of at least 1.26 and a water consumption factor2 of not more than 9.5. (42 U.S. C. 6313(e))



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