DOE withdrew as unwarranted the draft interpretive rule setting out the department’s views on the definition of a showerhead for purposes of the Energy Policy and Conservation Act enacted by Congress in 1992.
“The department’s goal from the beginning was to balance our obligation to enforce the law in a rational way with our determination to avoid unnecessary economic disruption,” former DOE General CounselScott Blake Harrissaid prior to leaving his post in early March. Harris, who spearheaded the initial DOE redefinition, is now the executive vice president for legal and external affairs at Neustar Inc., a global communications solutions company.
“We proposed an interpretive rule only because we wanted public comment before making any final decision about how to proceed.”
DOE created a firestorm within the plumbing manufacturing industry last June when, without advance notice to stakeholders, it proposed to redefine showerheads as shower valves, which would allow only a single showerhead using no more than 2.5 gallons of water per minute per showering compartment. Under the original redefinition, if a showerhead’s standard components, operating in their maximum design flow configuration, taken together use in excess of 2.5 gpm when flowing at 80 psi - even if each component individually does not exceed 2.5 gpm - it would be ruled noncompliant.
Instead, DOE has issued a brief enforcement guidance.
“This is something that could have had very bad economic implications to the industry to the tune of $400 million,” Plumbing Manufacturers International Executive DirectorBarbara Higgenssaid.
PMI played a major role in challenging the initial decision through its research, encouragement of public comment on the issue and by meeting with Harris and DOE officials.
“We sat at the same table and presented some very truthful and fact-filled arguments pointing out flaws in the original language,” she said. “We brought like-minded parties to the table. I think what they had written is not what they had meant. At the end of the day, the department realized we were closer to being on the same page.”
The new DOE enforcement guidance classifies, for the purposes of the maximum water use standards, a single showerhead as multiple spraying components sold together as a single unit designed to spray water onto a single bather. It does not apply to tub spouts, locker room showers, emergency showers or to nozzles where water can be diverted to a hand sprayer but the sprayer cannot run at the same time as the main nozzle.
To determine whether a manufacturer’s showerhead complies with the 2.5-gpm standard set by Congress, the department will measure a showerhead’s water use by turning all of a unit’s sprays and nozzles to their maximum flow settings.
While stressing the prevention of needless economic disruption to the industry, the guidance also expressed the department’s wish to not regulate the behavior of consumers or how they, an architect or home builder may wish to design a shower. The department noted its regulations do not reach either retail market inventories or after-market installation by plumbers.
“The department will exercise its inherent discretion in applying its enforcement authority to manufacturers who were measuring the water flow from each spraying component separately to determine compliance with Congress’s 2.5-gpm standard,” the enforcement guidance reads.
DOE will provide an enforcement grace period of two years to allow manufacturers to sell any remaining noncompliant multi-nozzle products and to give manufacturers the opportunity to adjust product designs in order to ensure compliance with EPCA and the department’s regulations.
“They used sweeping language we were pretty sure they didn’t mean to use with things like gang showers and eye-wash stations,” said Higgens, who noted PMI is still analyzing the particulars of the enforcement guidance. “We’re pleased our efforts were heard by DOE. Scott Harris had always maintained his intention was not to put economic strain on the manufacturers, but enforce regulation that has been on the books.”
Harris said: “Based upon what we learned during the comment period, we believe our enforcement guidance strikes the right balance and is the best way to proceed. The enforcement guidance does not change the rules - which we never wanted to do - and, unlike an interpretive rule, it can easily evolve based on feedback from stakeholders and the marketplace to ensure the right balance is maintained going forward.”
DOE is going after alleged flagrant violators of EPCA as evidenced by DOE’s Office of Enforcement recently issuing a subpoena to a California man seeking water efficiency information and sales records for a showerhead in response to a complaint it violates federal water conservation standards. A website advertisement for the product lists a flow rate of 10 gpm and declares the product “the best thing since Niagara Falls.”
