DOE ends Fed preemption of water rules

WASHINGTON — Right before Christmas, the U.S. Department of Energy announced in a posting in the Federal Register that it is ending Federal preemption of state water conservation regulations.

On Dec. 22, 2010, DOE’s Office of Energy Efficiency and Renewable Energy issued a final rule titled, “Energy Efficiency Program for Consumer Products: Waiver of Federal Preemption of State Regulations Concerning the Water Use or Water Efficiency of Showerheads, Faucets, Water Closets and Urinals.”

What it says is that DOE is waiving the general rule that Federal laws or regulations preempt state laws and standards, in this case for energy conservation standards under 42 U.S.C. 6297(c). The waiver applies to any state regulation concerning the water use or water efficiency of faucets, showerheads, water closets and urinals if the state regulation is more stringent than Federal regulation on the water use or water efficiency for that same type or class of product. The waiver applies to any sale or installation of all products in that particular type or class.

DOE noted in its posting that the Energy Policy and Conservation Act (EPCA) established the Energy Conservation Program for ‘‘Consumer Products Other Than Automobiles.’’ The products covered by the program include faucets, showerheads, water closets and urinals. Under EPCA, the overall program consists essentially of testing, labeling, and Federal energy conservation standards, including water conservation standards for plumbing fixtures and fittings. National standards for the relevant products are based on the American Society of Mechanical Engineers (ASME)/American National Standards Institute (ANSI) standards A112.18.1M, for showerheads and faucets, and A112.19.6, for water closets and urinals.

DOE said in its notice that it was required to end Federal preemption by the way the law was written. In its posting, DOE said the law requires that, not later than six months after the conclusion of a five-consecutive-year period during which the ANSI/ASME A112 committee has not amended the faucet, showerhead, water closet or urinal standards in order to improve water efficiency, DOE must publish a final rule waiving Federal preemption of state laws or regulations, as long as the state rules are more stringent than federal rules.

ASME/ANSI last made a substantive amendment to its standards regarding the water efficiency requirements for showerheads and faucets on May 29, 1996 (ASME/ANSI A112.18.1M–1996), and for water closets and urinals on April 19, 1996 (ASME/ANSI A112.19.6–1995). Both of these standards were incorporated by reference into the Code of Federal Regulations in a final rule issued by DOE on March 18, 1998.

While that’s what it says, what it means is open to interpetation.

The Alliance for Water Efficiency noted that with the Federal preemption waived, states are able to set plumbing standards that are stricter than the Federal standard. Three states have already done so — California, Texas and Georgia.

Barbara C. Higgens, executive director, Plumbing Manufacturers International, said, “The Dec. 22 statement from the U.S. Department of Energy as posted in the Federal Register reinforces a policy that has been in place since the mid-1990's, when Federal Preemption was last in place. While national harmonization of performance standards is preferred by most manufacturers in the name of manufacturing efficiency, product availability and performance, for the past 15 years states have had the legal option to go below Federal efficiency standards.

Higgens pointed out that California and Texas, with the guidance and support of PMI, have mandated the use of 1.28-gpf high efficiency toilets.

Higgens noted that it is PMI’s belief that manufacturers be included in discussions about adopting more stringent efficiency standards for the sake of consumer satisfaction and safety, for example, matching low-flow showerheads with the proper anti-scald valves.

“The Department of Energy’s recent move to forego preemption for water efficient plumbing products could prove to be a very positive development,” said Shawn Martin, director of industry relations for the International Code Council Plumbing, Mechanical & Fuel Gas. “It removes a potential barrier to efforts by jurisdictions to improve their water efficiency efforts, and clears the way for the adoption of model green codes like the ICC’s International Green Construction Code.”

A prominent industry player involved in the code development process who requested anonymity opined, “It is rumored that this waiver is, in reality, the perfect smokescreen for DOE to use to avoid ruling on the showerhead issue that has created so much controversy. In other words, give it to all the states to decide individually what they want! I am pretty convinced that nothing of substance will come out of DOE on the showerhead issue after this. There may be another communication, but it will be of little value. Otherwise, why do this a few days before Christmas when few people are watching?”

Last June, DOE announced that it was reinterpreting its showerhead rules in such a way that it would ban multi-head showers (July 2010, p. 1, http://contractormag.com/news/doe-bans-multi-showerheads-2345/index.html). The move set off a storm of protest from contractors and manufacturers that DOE, with a single posting in the Federal Register and no notice, hearings or comment period, was outlawing an entire category of products that had been developed and marketed for 15 years.

DOE subsequently relented and solicited comments last fall. It was supposed to issue its final rule before Thanksgiving, then between Thanksgiving and Christmas, and then sometime early this year. What the Department will do remains to be seen.