Case No. VEE-0073

May 31, 2000

DECISION AND ORDER

OFFICE OF HEARINGS AND APPEALS

Application for Exception

Case Name: Midtown Development, L.L.C.

Date of Filing:May 12, 2000

Case Number: VEE-0073

This Decision and Order considers an Application for Exception filed by Midtown Development, L.L.C. (Midtown), seeking exception relief from the provisions of 10 C.F.R. Part 430, Energy Conservation Program for Consumer Products: Test Procedures and Certification and Enforcement Requirements for Plumbing Products (Plumbing Products Standards). In its exception request, Midtown asserts that the firm would be severely impacted if required to adhere to the Plumbing Products Standards of Part 430, 10 C.F.R. § 430.32, with respect to seven toilets Midtown must replace in an historic building currently under renovation by the firm. If Midtown’s Application for Exception were granted, the firm would be permitted to purchase, by import, seven toilets not meeting the prescribed standards and certification requirements of Part 430. As set forth in this Decision and Order, we have concluded that Midtown’s Application for Exception should be granted.

I. Background

A. Plumbing Product Standards

The Plumbing Products Standards, 10 C.F.R. Part 430, were published as a final rule by Department of Energy (DOE) on March 18, 1998, 63 Fed. Reg. 13308, as mandated by Congress in Part B of Title III of the Energy Policy and Conservation Act, as amended, 42 U.S.C. §§ 6291-6309 (EPCA). In the EPCA, Congress directed, inter alia, that DOE administer an energy and water conservation program for specified major household appliances and commercial equipment, including certain plumbing products. Pursuant to this authority, the Part 430 final rule establishes water conservation standards and test procedures for faucets, showerheads, water closets (toilets) and urinals, and further specifies certification requirements and enforcement measures to ensure compliance by manufacturers and vendors of these covered plumbing products.

Pertinent to the present case, section 430.332 of the Plumbing Products Standards codifies a statutory standard for water closets (toilets) of a maximum allowable water use of 1.6 gallons per flush (gpf) for gravity tank-type toilets, flushometer tank toilets, and electromechanical hydraulic toilets, if manufactured after January 1, 1994. 10 C.F.R. § 430.32(q). Certification and enforcement requirements are set forth in Part 430, Subpart F. Section 430.62 prohibits sale or distribution in commerce of any basic model of a covered product absent a certification that such product has complied with the testing procedures of DOE, and meets the applicable energy conservation standard or water conservation standard prescribed in 10 C.F.R. Part 430, Subpart C. These requirements are extended by section 430.64 to “any person importing any covered product into the United States” and “[a]ny covered product offered for importation . . . .” 10 C.F.R. §§ 430.64(a) and (b).(1) Under section 430.61(b), any person who knowingly violates this prohibition may be subject to assessment of a civil penalty of no more than $110 for each violation.

Persons subject to the various product standards of Part 430 may apply to the DOE Office of Hearings and Appeals (OHA) for exception relief. See Amana Appliances, 27 DOE ¶ 81,006 (1999). In this regard, section 504 of the Department of Energy Organization Act authorizes OHA to make adjustments of any rule or order issued under the Energy Policy and Conservation Act, consistent with the other purposes of the Act, if necessary to prevent special hardship, inequity, or unfair distribution of burdens. 42 U.S.C. § 7194(a).

B. Application for Exception

Midtown is a real estate management and leasing firm located in Waterloo, Iowa, and is the owner of Black’s Building, an historic eight-story building (formerly Black’s Department Store) constructed in 1909. The department store that originally occupied the building closed in 1981. Upon later acquiring the building, Midtown has made $2.5 million in renovations and improvements to convert the building into a mixed-used facility. Black’s Building currently houses a variety of businesses and professional offices including law firms, engineering companies, a dental office, government offices, a restaurant and a data service center.

Midtown states in its Application for Exception that the firm has confronted a unique problem in its process of restoration involving seven toilets located on the sixth and seventh floors of the building. Midtown asserts that replacement toilets on these floors must be mounted in existing marble structures and all available 1.6 gpf toilets, meeting the required Part 430 standards, have proven to be unworkable since the toilet seat would be 35 inches from the floor when mounted. According to Midtown, the only fixture that will work correctly and is suitable for installation is the Eljer 111-0355 Top Spud wall mounted model which is a nonconforming 3.5 gpf toilet. Midtown states that it has been able to locate seven of these Eljer toilets at a plumbing supply store located in Windsor, Ontario, Canada. In its Application for Exception, Midtown seeks approval to purchase these imported toilets for installation on the sixth and seventh floors of Black’s Building. Rest rooms are located on the other floors, but Midtown seeks no exception relief for those facilities.

II. Analysis

We have carefully considered Midtown’s Application for Exception and concluded that the firm’s exception request should be approved. In response to our request for additional information, Midtown states in a supplemental submission filed on May 18, 2000, that installation of standard 1.6 gpf toilets in the seven locations concerned would entail rerouting the plumbing on the sixth and seventh floors of the building. According to Midtown’s engineer, such rerouting would require that the original marble paneling and wood flooring be torn away. Black’s Building has been designated a historical building, as duly registered by the Iowa State Historical Society. Thus, apart from the substantial cost, devastation of the marble walls and original flooring for purposes of installing the seven toilets would constitute an undue burden and injure the appearance of the historic building.(2) Under the unique circumstances of this case, we are persuaded that Midtown would suffer an unfair distribution of burdens if required to adhere to the Plumbing Products Standards with respect to the seven toilets concerned. 42 U.S.C. § 7194(a); 10 C.F.R. § 1003.25(b)(2).

Midtown shall therefore be granted exception relief from the Plumbing Products Standards, allowing the firm to install seven nonconforming toilets on the sixth and seventh floors of Black’s Building. The exception relief is specifically limited to the seven Eljer 111-0355 Top Spud toilets Midtown has located at Veteran’s Plumbing, a plumbing supplier located in Windsor, Ontario. The exception relief approved in this Decision and Order shall authorize the import purchase by Midtown, and import sale by Veteran’s Plumbing, of these seven toilets for purpose of installation in Black’s Building.

It Is Therefore Ordered That:

(1) The Application filed by Midtown Development, L.L.C. (Midtown), on May 12, 2000, is hereby granted as set forth in Paragraph (2) below.

(2) Notwithstanding the requirements of 10 C.F.R. Part 430, Midtown is hereby authorized to purchase by import seven Eljer 111-0355 Top Spud toilets for installation in Black’s Building, Waterloo, Iowa. Veteran’s Plumbing, a plumbing parts supplier, located at 276 Wyandotte Street E, Windsor, Ontario Canada N9A 6L7, is correspondingly authorized to make the import sale of said toilets to Midtown.

(3) Any person aggrieved by the approval of exception relief in this Decision and Order may file an appeal with the Office of Hearings and Appeals in accordance with 10 C.F.R. Part 1003, Subpart C.

George B. Breznay

Director

Office of Hearings and Appeals

Date: May 31, 2000

(1)During the Part 430 proposed rulemaking, commenters expressed concern that nonconforming plumbing products might nonetheless enter the retail marketplace, particularly through import. The agency responded, however, that “DOE believes that its existing enforcement procedures -- which encourage industry policing, prescribe enforcement testing, and provide for civil penalties for all covered products (which include imports) that violate the Federal standards -- are adequate for deterring would-be violators.” Proposed Rulemaking, 62 Fed. Reg. 7834, 7841 (February 20, 1997).

(2)Midtown states in its exception application that recognizing the impact on the historical building, the City of Waterloo building code authority has authorized Midtown to install the nonconforming Eljer toilets, subject to the approval by DOE of exception relief from the Part 430 standards.