Thought Leadership

Baker Botts Washington Recap - Episode 8

Client Updates

In the latest installment of our video series on important regulatory and legislative events in the first year of the Biden Administration, Partner Alexandra Dunn provides an update on President Biden's progress on moving appointees to the Senate for confirmation to key EPA roles. Carlton Waterhouse has been nominated to lead EPA's Office of Land and Emergency Response and David Uhlman is the President's pick for the EPA Office of Enforcement & Compliance Assurance. 

Associate Scott Novak discusses the rule the U.S. Department of Energy's recently published interpretive rule regarding energy conservation standards for residential furnaces and commercial water heaters. The proposed rule would rescind the Department's January 15, 2021 final interpretive rule that designated two product classes for natural gas heating appliances - one for "condensing" heating appliances, and one for "non-condensing" heating appliances. 

 

 

Carlton Waterhouse has been nominated to lead EPA’s Office of Land and Emergency Response. In recent senate testimony, Waterhouse said he wants to accelerate community redevelopment and boost the pace of contaminated site cleanups. He also would work to regulate PFAS – a family of chemicals under great scrutiny nationwide due to their persistence in water and soil and their association with various adverse health effects. Waterhouse also would follow through on plans to possibly designate “certain PFAS as hazardous substances” under the Superfund law. This approach could increase costs of ongoing cleanups, and could reopen closed sites, nationwide. An environmental lawyer, Waterhouse led Howard University’s Environmental Justice Center before joining EPA.

David Uhlmann is the President’s pick for the EPA Office of Enforcement & Compliance Assurance. In his confirmation hearing, he stated he would further environmental justice, address PFAS chemicals, and bolster the role of corporate environmental stewardship programs. Uhlmann told Senators he would increase the ranks of enforcement officials at EPA – in particular, criminal investigators. Uhlmann would be able to deliver on this goal if Congress passes the President’s proposed EPA budget– which would increase the enforcement office by 50 full time staff and $26 million dollars. Currently Uhlmann is Professor at the University of Michigan Law School and previously served as chief of environmental criminal enforcement at the Department of Justice.

EPA also remains busy on the policy front, in particular turning back decisions of the Trump Administration. The Agency recently announced that certain underground water discharges are no longer exempt from the Clean Water Act. Additionally, EPA is putting back into action recently overturned wetland permitting policies. Both policy decisions will result in increased federal review of construction projects, and of water discharge activities, nationwide.

On August 27, 2021, the U.S. Department of Energy (“DOE”) published a proposed interpretive rule regarding energy conservation standards for residential furnaces and commercial water heaters.  The proposed rule would rescind the Department’s January 15, 2021 final interpretive rule that designated two product classes for natural gas heating appliances—one for “condensing” heating appliances, and one for “non-condensing” heating appliances.  The January 15 rule also stated that appliances’ use of “non-condensing technology,” which requires venting, is considered a performance-related “feature” under the Energy Policy and Conservation Act (“EPCA”) and cannot be eliminated by adopting an energy conservation standard. 

The proposed rule would return DOE to “its previous and long-standing interpretation…under which the technology used to supply heated air or hot water is not a performance-related ‘feature’ that provides a distinct consumer utility under EPCA.”  Once DOE issues a final interpretive rule, the agency plans to evaluate whether amended energy conservation standards for residential furnaces and commercial water heaters would be appropriate. As a practical matter, if DOE imposes new energy efficiency standards on all residential furnaces and commercial water heaters, regardless of whether they use “condensing” or “non-condensing” technology, the effect (depending on how stringent the standard is) could be to push natural gas-powered furnaces and water heaters out of the marketplace.

DOE has issued a prepublication notice stating it will accept comments on the proposed rule until October 12, 2021.

 

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