Nom.

RESOURCES

DEFENSE

COUNCIL

March 12, 1999

Office of Hearings and Appeals

COMMENTS

U.S. Department of Energy

1000 Independence Avenue, SW

Washington, DC 2058.5

Attn: Mr. Fred Brown

BY FAX (202-426-1415)

Docket No. VEE-0054: Comments of the Natural Resources Defense

Council (NRDC) on Amana's Application for an Exception from

Refrigerator Standards.

Dear Mr. Brown,

These comments are submitted on behalf of the Natural Resources Defense

Council (NRDC), a national environmental organization with over 400,000

members and contributors. NRDC has promoted energy efficiency at the state,

regional, national and international levels for 25 years, and has participated in

DOE appliance efficiency rulemakings since 1980 and state appliance efficiency

proceedings since 1975. The National Appliance Energy Conservation Act of

1987 follows from an agreement negotiated. between NRDC and the major

appliance manufacturer trade associations.

On February 18, 1999 Amana Appliances filed with the -Department: of Energy

(DOE) an Application for Exception (Application)-to the energy efficiency

standards.for refrigerators, refrigerator-freezers, and freezers that are

established in 10 CFR § 430.32(a)' and that go into effect on July 1, 2001.

Amana's Application was filed pursuant to 10 CFR Part 1003, Subparts A and B.

As a representative of our members, NRDC has an interest in reducing air

pollution, global climate change, and other environmental impacts. that are a

direct consequence of energy consumption. Energy use can be reduced

substantially as a result of energy efficiency improvements, such as those

produced by the standards in question. .

71 Stevenson Street 6310 San Vicente Boulevard 1200 New York Ave., N.W. 40 West 20th Street

Suite 1825 Suite 250 Suite 400 New York, NY 10011

San Francisco, CA 94105 Los Angeles, CA 90048 Washington, DC 20005 212 727-2700

415 777-0220 213 934-6900 - 202 289-6868 Fax 212 727-1773

Fax 415 495-5996 Fax 213 934-1210 Fax 202 289-1060 .

www.nrdcorg

70096 Poeco,sumer 1&yckd' c.5 -

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NRDC. Comments

March 12, 1999

Page 2

NRDC has reviewed the comments submitted by the Oregon Department of

Energy (ODOE) and the California Energy Commission (CEC), and supports

their arguments and conclusions that the Amana Application should be rejected.

In addition, NRDC has other concerns in our capacity as a negotiator of the 1994

joint comments on which the proposed DOE rule was in large part based and a

negotiator of the final agreement's joint comments on which the Final Rule was

in large part based.

From these discussions, we note that the issue of the choice of alternative

refrigerant was not ignored or downplayed in the rulemaking either by

stakeholders negotiating over the potential for joint comments, or by the

Department of Energy in deciding whether or not to accept joint comments, and

in determining what they would promulgate in the event that stakeholders were

unable to offer consensus recommendations. The issues in the Application were

addressed fully in the Final Rule.

DOE's perspective on this issue was presented in the Final Rule, pages 23108-

23109 of the Federal Register of 28 April 1977(Vol._ 62, Number. 81) where. DOE

noted the. basis of its decision in data concerning expectations for refrigerant

availability and in a description of a petition process for exceptional relief that

could be used.

It is important to note that DOE's discussion talks about the "possibility that

[HFC-245fa's] commercial availability will be delayed beyond 2003," not 1999,

2000, or 200-1.

Based on this discussion and stakeholders' discussions, a petition for relief is

premature. The parties agreed that in Spring 1997 HFC-245fa looked like it

would be available in time for the year 2003 phase-out date of the current

blowing agent (and not by the phase-in date of the standard of July 1st, 2001).

Now, only two years into this nearly 6-year. timeline, we simply do not know

enough new information to make this application timely. Indeed, the hurdles

identified in the Final Rule have been successfully overcome., Page 1 of Amana's

Application notes that DOE's Final Rule states "it is still possible that

subsequent tests [of toxicity] will identify unacceptable risks associated with the

use of this product or that its. commercial availability will be delayed beyond

2003. Under such conditions DOE may grant manufacturers exception relief'

(emphasis added).

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NRDC Comments

March 12, 1999

Page 3

Amana has not brought forth any evidence that subsequent tests did identify

unacceptable risks; or that additional tests to be performed beyond the current

date will do so. Thus, the first condition referred to by DOE has not eventuated.

The second condition is that the commercial availability of HFC-245fa may be .

delayed beyond the year 2003. Amana has produced no evidence that this is any

more likely to happen than was expected when the Final Rule was promulgated.

Instead, Amana refers to commercial availability in 1999 or 2000. These were

never identified in the Final Rule as conditions under which any applicant could

petition for exception. The problems to which Amana refers in its petition go

beyond the scope of those identified in the Final Rule, at least in terms of

consideration in 1999.

Amana's Application for Exception should be denied at this point simply because

it is too soon to know whether any burden will be imposed upon them.

Even if Amana were able to demonstrate a burden, the relief that they request is

grossly disproportionate to the problem. As noted in the Final Rule, the initial

proposal by stakeholders, including Amana, was for a loosening of the standard

for a time period between three and nine years after publication of the Final

Rule, or until January 1St; 2004, assuming DOE had promulgated the Final Rule

according to statutory schedule. At that time (1994), the potential of HFC-245fa

for being the blowing agent of choice was not even discussed.

Thus, without the encouraging data available today about the prospects of HFC245fa, .Amapa was willing to settle for an exception from the standard only until

the year 2004. - NRDC believes that it is outrageous that Amana is now

demanding several additional years of relief from the standard compared to their

position in 1994. This is particularly troublesome in light of the fact.that there

are more options available now for. meeting the higher levels of efficiency than

there were' in '1994.

The Office of Hearings and Appeals should note the unusual character of the

rule that Amana is seeking exception from. It is based on recommendations

from stakeholders, including Amana, as well as independent analyses and

decisionmaking by the.Department of Energy. It is hard to believe that Amana

is seeking exception from a rule it proposed itself less than two years ago, when

none of the milestones identified in the rule as being potentially problems have

occurred. Granting this exception, therefore, would not only waste energy, but

would undercut the credibility of negotiated rulemakings by opening up the

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NRDC Comments

March 12, 1999

Page 4

option that any party could agree to a rule in one year, and then seek special

exception from its provisions less than two years later.

In summary, NR-DC recommends that Amana's Application be denied.

As a procedural matter, I wish to note that I have been the signatory of NRDC's

comments, both individually and jointly'submitted with other stakeholders,

since 1980, and am the duly authorized NRDC representative on the issue of

appliance efficiency standards. Yet, my name was not included on the service

list. Instead, NRDC's President's name appears on the service list. Given the

short time frame for comments, even with the deadline extension, this mistake

has put NRDC at a disadvantage in being able to respond fully. [Note that Mr.

Adams' address is also incorrectly specified; the correct address is 40 West 20th

Street, New York, NY 10011]. In the future, all correspondence dealing with

this issue should be sent to my attention at: NRDC,. 71 Stevenson Street, #1825,

San Francisco, CA 94105, Fax.(415) 495-5996. ' Thank you.

Sincerely,

- I

. D4vid B. Goldstein

Energy Program Co-Director

cc: Amana

AmanaStdCmts.doc

 EE-RM-93-801 COMMENT 335