William T. Miller 

Partner 

T. 202-753-3420 

F. 202-354-4658 

wrniller@mccarler.com 

Mccarter & English, LLP 

1015151h Sireet, NW 

12th Floor 

Washington. DC 20005 

T, 202.'753.3400 

F. 202.296.0166 

www.mccarter.com 

BOSTON 

HARTFORD 

STAMFORD 

NEW YORK 

NEWARK 

EAST BRUNSWICK 

PH ILADELPHIA 

WILMINGTON 

WASHINGTON . DC 

November 14, 2014 

BY U.S. MAIL AND EMAIL 

Mr. Daniel Cohen 

Assistant General Counsel for 

Legislation, Regulation and Energy Efficiency 

U.S. Department of Energy 

Office of the General Counsel 

1000 Independence Avenue, S.W. 

Washington, DC 20585 

Re: Remand from APGA v_ DOE, CADC No. 11-1485 

Dear Dan: 

MCCARTER 

&ENGLISH 

ATTORNEYS AT LAW 

APGA was pleased that DOE was responsive to our request to have a meeting to 

answer questions about the spreadsheets posted by DOE regarding the remanded 

furnace rule; however, we were very disappointed that the public meeting held on 

November 7, 2014, to ostensibly answer the specific questions submitted by us in 

advance of the meeting (at your request) was converted by DOE to a four-hour 

tutorial on the spreadsheets and the Crystal Ball modeling tool that effectively 

answered none of our questions. 1 

If the four-hour tutorial made anything clear, it is just how opaque and complex the 

spreadsheets and the Crystal Ball model are, which we already knew and is 

precisely what prompted us to submit the detailed questions that we did. It is 

impossible to analyze the Crystal Ball-generated spreadsheets in a meaningful 

fashion without receiving complete answers to our questions. Therefore, DOE has 

effectively prevented the sort of analysis of the spreadsheets that is required to 

understand and critique them by declining to answer the questions we submitted. 

We frankly reject the notion expressed at the meeting that providing the answers to 

our questions means delving into the "deliberative" process, since we are not asking 

at this stage why DOE made certain choices but rather what specifically those 

choices are and how they drive the outcome. 2 DOE's refusal to answer our 

1 Certainly, DOE understands that partial answers to multi-part questions is tantamount to no 

answer at all since the complete answer is required to permit further analysis. 

2 For example, answering the first question (#1 .a.) as to why the different outcomes in the 

2014 LCC spreadsheet versus the 2011 LCC spreadsheet means explaining in detail what 

inputs changed during the two time periods that drove the different results (versus why DOE 

elected to make the changes, which arguably is deliberative). 

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Mr. Dan Cohen 

November 14, 2014 

Page 2 

questions means that further meaningful analysis of the spreadsheets at this time 

has been rendered impossible. 

The bottom line is that if time were not of the essence, DOE's refusal to answer our 

questions now versus at a later date would not be as concerning, so long as we 

obtained the data eventually with adequate time to conduct analyses and submit 

comments. But time does matter. Because of DOE's refusal to address key 

questions, we will now lose weeks (potentially months) between now and the date 

the NOPR issues for conducting meaningful analysis of the spreadsheets. 

We believe that the Court's remand in the above-referenced proceeding as well as 

DOE's full disclosure obligations require that DOE answer the sort of questions that 

we submitted. The Court approved the requirement in the settlement that "in the 

rulemaking on remand, DOE will make available to the public the data gathered and 

analyzed by the agency prior to publication of a proposed rule." We believe that this 

means more than providing three spreadsheets; we believe that the disclosure 

obligation requires DOE to provide adequate supporting information to allow 

meaningful analysis of the posted spreadsheets (such information to include, for 

example, an explanation of the fuel switching assumptions in the LCC spreadsheet). 

A four-hour tutorial telling us what we already knew, which is that the Crystal Ballgenerated spreadsheets are close to impenetrable even to experts (and certainly 

completely inscrutable to the general public), does not suffice. 

While we cannot make up for the time that will be lost by DOE's refusal to answer 

our questions, DOE can avoid compounding the problem by assuring us that we will 

have credible access to the responsible LBNL analysts (via public meetings) 

immediately upon issuance of the NOPR. Since we are being denied the data today 

that we need in order to proceed with a meaningful analysis of the spreadsheets at 

this time, we will need that data immediately upon issuance of the NOPR in order to 

be able to proceed. Thus, we request that DOE schedule meetings as soon after 

issuance of the NOPR as possible, with such meetings not to be time limited (i.e., 

questions will not be precluded by some arbitrary time limit). We anticipate that such 

meetings will be required throughout the process, but it is essential that they be 

initiated at the time the NOPR issues. 

Your consideration of these comments is appreciated. 

Very truly yours, 

73 M-12-

William T. Miller 

cc: John Cymbalsky 

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