AHRI and fellow litigants, the American Public Gas Association (APGA) and Spire, filed a Motion to Vacate the Commercial Packaged Boiler Final Rule to the U.S. Court of Appeals for the D.C. Circuit in response to the Department of Energy’s (DOE) submission of the supplemental response to comments to the final rule.  

DOE submitted to the Court a supplemental response to comments to its Final Rule for commercial packaged boilers to address the deficiencies identified by the court in its Jan. 18 opinion. DOE’s supplemental response to comments attempted to address these deficiencies and economically justify the standards for commercial packaged boilers that are more stringent than those found in ASHRAE 90.1. DOE claims it has provided a satisfactory explanation for its final rule without the need to open another notice-and-comment period.

The court previously held that DOE failed to fix or adequately address multiple problems with its economic justification for the final rule that were raised on the record, including (1) DOE’s random assignment of boilers to buildings in the department's cost model; (2) the use of predicted average energy prices to estimate fuel costs; and (3) flawed DOE assumptions about burner operating hours.

The Motion to Vacate focuses on DOE’s random assignment of boilers to buildings — even where more efficient boilers had both lower up-front costs and total life-cycle costs — to economically justify a more stringent efficiency standard. In the motion, AHRI and fellow litigants continue arguing that DOE’s reliance on this flawed assumption skewed the results of the department’s economic analysis and that on remand DOE still failed to address the absence of actual evidence to support its claim.   

In addition, the motion contends that DOE failed to provide notice and opportunity to comment on the new arguments and evidence provided in the supplemental response that were not in the initial rulemaking record. AHRI and fellow litigants argue this is a procedural error, especially given DOE’s refusal to accept the court’s offer to request additional time beyond the 90-day remand deadline to correct its errors.