Setting a Standard for Inefficiency

Michael E. McCabe, program manager of DOE's building technologies program, Office of Energy Efficiency and Renewable Energy, said the testing rule is coming, probably by the end of summer. "Given the process, it can be frustrating," he said. "I can feel for those who have to deal with us."

The Energy Department was charged with upgrading energy efficiency standards for all kinds of commercial equipment, including water heaters that serve restaurants, apartment buildings and other businesses, under the Energy Policy and Conservation Act. The department also is supposed to "prescribe test procedures that are reasonably designed to produce results which reflect energy efficiency, energy use and estimated operating costs, and that are not unduly burdensome."

Manufacturers, retailers and distributors cannot advertise or state the energy consumption of their products unless they undergo the DOE-approved test. Unlike residential models, commercial heaters usually don't include a label on the tank. But manufacturers do use the information in their marketing.

As far as figuring out a new test, the law allows the department to adopt "by reference" tests and rating procedures already developed or recognized by an industry group called the American Society of Heating, Refrigerating and Air-Conditioning Engineers. At the time the Energy Department issued its proposal, it said it would ask companies to perform a test developed in 1998; since the proposal never became a final rule, manufacturers are still using a 1992 test.

Shellenberger said having to apply for a waiver for the commercial water heater rule was an annoyance. But another, still unresolved, encounter with the department reinforced his view that things get dropped into a regulatory black hole at the agency. "DOE doesn't take care of business," he said.

At issue was new electronic technology the company incorporated into a line of residential water heaters that allows consumers to change heat settings based on their usage patterns. Again, the company needed a waiver from the DOE test rule -- and asked to use a test it developed -- so it could quantify savings for consumers.

The company never got an answer to the request it sent more than three years ago, in April 2001.

As a result, the company cannot publish the energy efficiency of the heaters based on an approved test method. "We can't label this to a test method because one doesn't exist," Shellenberger said.

McCabe said he was aware of the company's request and the lack of response from the agency. He admitted it probably wasn't good manners not to get back to the company.

"We owe American a response. It's a classic example of inadequate response," he said. "The staff was not swayed by their argument. It should have been completed by denying it."