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 ofthe General Counsel 1000 IndependenceAvenue, 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 answerthe specific questions submitted by us in advance ofthe meeting (at your request) was converted by DOE to afour-hour tutorial on the spreadsheets and the Crystal Ball modeling tool that effectively answered none ofourquestions. 1 Ifthe four-hourtutorial made anything clear, it isjust howopaque 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 ourquestions. Therefore, DOE has effectively prevented the sort of analysis ofthe spreadsheets that is required to understand and critique them by declining to answerthe 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 ratherwhat specifically those choices are and howthey drive the outcome. 2 DOE's refusal to answer our

1 Certainly, DOE understands that partial answers to multi-part questions is tantamountto 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 spreadsheetversus the 2011 LCC spreadsheet means explaining in detail what inputs changed during the two time periods that drove the different results (versus whyDOE elected to make the changes, which arguably is deliberative).

ME1 19250472v.1Mr. Dan Cohen November 14, 2014 Page 2 questions means that further meaningful analysis ofthe spreadsheets at this time has been rendered impossible. The bottom line is that iftime were not ofthe essence, DOE's refusal to answer our questions nowversus 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 ofthe spreadsheets. We believe that the Court's remand in the above-referenced proceeding as well as DOE's full disclosure obligations require that DOE answerthe 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 priorto publication ofa 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 ofthe posted spreadsheets (such information to include, for example, an explanation ofthe fuel switching assumptions in the LCC spreadsheet). A four-hourtutorial 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 ofthe NOPR. Since we are being denied the data today that we need in order to proceed with a meaningful analysis ofthe spreadsheets at this time, we will need that data immediately upon issuance ofthe NOPR in orderto be able to proceed. Thus, we request that DOE schedule meetings as soon after issuance ofthe 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 meetingswill be required throughout the process, but it is essential that they be initiated at the time the NOPR issues. Your consideration ofthese comments is appreciated. Very truly yours, 

# 73 M-12- William 

### T. Miller

cc: John Cymbalsky

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