DOE hasn’t acted — yet— on showerhead rule

WASHINGTON — The U.S. Department of Energy appears to have slowed its fast track rule interpretation that would effectively ban multi-head shower systems.

In early June, DOE proposed to interpret the Energy Policy and Conservation Act of 1975, as amended, to mean that a showerhead is anything past the mixing valve. That would mean that all fittings could not spray more than 2.5 GPM combined. By saying it was merely an interpretation of an existing rule, DOE hoped to get around a formal rulemaking procedure. After being bombarded with negative comments and intense industry lobbying, DOE’s fast track has slowed.

At the Plumbing Manufacturers Institute meeting here in early October, Lee Mercer, Moen’s director of product compliance said the industry had sent DOE more than 400 letters opposed to DOE’s new interpretation of what constitutes a showerhead.

PMI’s lobbyist Stephanie Salmon of Waterman & Associates, piled on and said DOE received more than 1,000 comments, most of them negative. PMI, which changed its name at the meeting to Plumbing Manufacturers International, formed a coalition with the National Association of Manufacturers, the U.S. Chamber of Commerce, Plumbing-Heating-Cooling Contractors – National Association, International Association of Plumbing & Mechanical Officials, and the National Association of Home Builders.

Plumbing industry lobbyists had two face-to-face meetings with DOE, Salmon said, and DOE staffers seemed to understand the impact the new rule would have on the elderly and disabled, on eye washes, gang showers and religious uses, and on handheld showers.

PMI won involvement from the Small Business Administration’s Office of Advocacy and the Office of Management & Budget’s Office of Information and Regulatory Affairs. OIRA is the regulation gatekeeper inside OMB, Salmon explained.

DOE’s regulatory push seems to stem from two impetuses. The Natural Resources Defense Council has been prodding DOE, said Rob Zimmerman, senior staff engineer, Water Conservation Initiatives for Kohler. NRDC also is trying to persuade DOE to mandate ultra low flow fixtures and fittings that would render the U.S. Environmental Protection Agency’s WaterSense program irrelevant.

In addition to NRDC having DOE’s ear, the department is on an enforcement jag. DOE has a new general counsel, reported Salmon, who says the department has not enforced the rules that are on the books. So far DOE has gone after foreign showerhead manufacturers for not complying with the 2.5 GPM federal law. In another enforcement action, DOE announced fines against several dozen appliance manufacturers, including some that make tankless water heaters. When CONTRACTOR read the charges, all of them were for paperwork violations. The manufacturers were compelled to settle within 30 days and pay a fine under the threat that DOE would drag them before a federal magistrate.

PMI and its allies have recited a litany of problems with the proposed rule, Salmon noted:

-The content of the proposal is technically flawed.

-It significantly alters a definition that had been enforced by both the Clinton and Bush administrations.

-Multi-head showers were not recognized in the original rulemaking process.

-The process is flawed; DOE said it was an interpretative action exempt from the rulemaking procedures but it limits actions of stakeholders. It should have been a formal rulemaking.

-There’s a lack of transparency; the industry can’t get a copy of the revised rule.

-The water savings are too small to be measured.

-There’s a significant economic impact. DOE didn’t do an economic or cost/benefit analysis. PMI analysis indicates it would cost $400 million in the first year and then $300 million a year annually. Also, DOE did not do an economic analysis on the cost to wholesalers and plumbers.

“The plumbing manufacturers have shown that they want it both ways,” said one knowledgeable plumbing engineer who requested anonymity. “They state that there just aren't enough multiple showerhead installations to justify regulating them, but at the same time, the economic impact of regulating them would be massive, in the hundreds of millions of dollars. Both statements cannot be true. Either there are few of them and their impact is small or there are many and the impact is large. It cannot be both at the same time, even if they are relatively expensive products.

“The industry is putting off the day of reckoning where we will need to have a substantive discussion regarding what is an appropriate amount of water usage for these products,” the plumbing engineer continued. “Simply saying that the market should be permitted to regulate itself is not going to be enough. Water is not priced according to its actual worth, and is delivered by local monopolies at artificial, subsidized prices. There simply is no economic advantage to using less water when it is so cheap.”

At the WaterSmart Innovations Conference in Las Vegas the same week as the PMI meeting, prominent plumbing engineer John Koeller refused to say if he thought DOE’s proposal was the right thing to do. He did, however, blast the Department’s nonfeasance for sitting on its hands for 16 years while the plumbing industry developed a whole new product line and category.

Patrick Cleary, senior vice president of public relations firm Fleishman-Hillard, may have given the PMI members the best advice on how to handle the showerhead issue: ridicule. Slow DOE down long enough to get into a formal rulemaking and then blast them.

“This is the greatest issue I’ve ever seen,” Cleary exclaimed. “You’re sitting on a gold mine. Please, God, do something with it. All the karma of the world is glowing here. It’s about what is the role of government? First they’re going to take away our light bulbs and now our showerheads? Seriously, find your friends first. Everybody is affected by this. Get everybody who doesn’t want government getting bigger on your side. You’ve got to be kidding me. This is nuts.”

Cleary urged the PMI members to contact Congressmen, congressional candidates, local news media, conservative radio hosts and bloggers.

So, what’s next? The Office of Management & Budget’s Office of Information and Regulatory Affairs has 90 days to review the proposal and provide its feedback to DOE. Unfortunately, OIRA will only communicate with DOE, not with plumbing industry stakeholders.

PMI has met with key Senate Environment and Natural Resources Committee staff in case the industry needs to seek legislative relief to overturn the Department’s decision.

Diane Waterman from lobbyist Waterman & Associates said she told DOE that plumbing manufacturers’ greatest fear is that the rule will come out and manufacturers still won’t know what it means. The industry needs technical accuracy that it fears that DOE is not currently getting. At the WaterSmart Innovations Conference, however, CONTRACTOR met Graham B. Parker, a senior staff engineer at Pacific Northwest National Laboratory, who said he had been providing technical advice to DOE on the issue.

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