What's News_DWM

Volume 11, Issue 5 - June 2010

What'sNews

ENERGY NEWS
EPA Begins Phase 2 of Energy Star® Revisions

The U.S. Environmental Protection Agency (EPA) announced the beginning of the second phase of its criteria revisions for doors, windows and skylights on June 14. During this process, EPA will invite industry input and update research from the last criteria revision (June 2007 – April 2009). Based on this feedback and analysis, EPA will select criteria that meet the principles outlined in The Energy Star Label: A Summary of Product Labeling Objectives and Guiding Principles. Phase one went into effect on April 1, 2010.

EPA, in consultation with the U.S. Department of Energy (DOE), says it is considering a variety of adjustments to the criteria in order to meet the requirements of the guiding principles and to address comments raised during the last criteria revision. Initial topics for consideration include realizing significant energy savings on a national basis. According to the EPA announcement, this can be accomplished by establishing lower U-factors in most or all climate zones, adjusting SHGC in some climate zones and expanding education on shading and orientation.

Secondly, the EPA says product performance can be maintained or enhanced with increased energy efficiency. This can be accomplished through establishing installation procedures to ensure product performance, adding a minimum air leakage requirement and requiring some form of structural testing.

Additionally, purchasers will recover their investments in increased energy efficiency within a reasonable period of time through the following: Development of equivalent performance criteria for impact-resistant products, and considering industry proposals for a daylighting credit for skylights and Tubular Daylighting Devices (TDDs).

The EPA also proposes that energy efficiency can be achieved with several technology options, at least one of which is non-proprietary. This can be accomplished by allowing leeway in thermal performance for products being installed at high altitudes.

Regarding product energy consumption and performance, the announcement says this can be measured and verified with testing. Topics for consideration include creating/adding a blind purchasing program through the National Fenestration Rating Council; and resolving the outstanding conflict between the physical and simulation test results for TDD U-factor ratings.

Lastly, EPA says, under the new criteria, labeling would effectively differentiate products and be visible for purchasers. This would be accomplished through maintaining or enhancing product and display unit labeling; and bringing market share more closely in line with the 25 percent program target, according to EPA.

Rich Walker, president and chief executive officer of the American Architectural Manufacturers Association (AAMA) says he is encouraged by EPA’s addition of several non-thermal performance parameters to the next Energy Star revision.

“Although resistance to wind load and windborne debris impact are not directly tied to thermal performance, both properties are critical in maintaining the structural integrity of fenestration,” says Walker. “Superior thermal characteristics of windows, doors and skylights can be meaningless if the units cannot stand up to wind loads and flying debris from high wind events. The members of AAMA look forward to working closely on integrating these importance fenestration attributes that have been key components of the AAMA Gold Label Certification Program for many years.”

Jeff Inks, vice president of codes and regulatory affairs for the Window and Door Manufacturers Association (WDMA) says that while the DOE and EPA have been talking about phase 2 for some time it is helpful that the industry now has a formal timeline in place.

Although resistance to wind load and windborne debris impact are not
directly tied to thermal performance, both properties are critical in
maintaining the structural integrity of fenestration.

—Rich Walker, president and chief executive officer of AAMA

Inks pointed out that in phase 2, the EPA will be considering the addition of new qualification criteria beyond existing U-factor and solar heat gain coefficient energy provisions, for example, air leakage and installation procedures.

“We’ll certainly be working closely with EPA to help ensure that any revisions to the existing criteria or addition of new criteria are practical and within the scope of the intent of the Energy Star products program.” he says.

“EPA has indicated they will work closely with industry. We trust that they will and we look forward to working with them on development of phase two criteria,” he adds.

Timeline
EPA has established the following tentative timeline for the criteria revision.
• Initial Analysis and Research, June 2010 – June 2011;
• Preliminary Criteria Published, July 2011;
• Stakeholder Meeting, August 2011;
• Comment Period, August – September 2011;
• Review Comments, Finalize Criteria, October 2011-February 2012;
• Release Final Criteria, March 2012;
• Two-Week Comment Period, April 2012;
• Publish New Program Requirements, May 2012; and
• Criteria Take Effect, March 2013.

EPA says that for its initial analysis it will gather data on marginal cost, product performance and production considerations. Anyone interested in discussing these or other issues with an Energy Star staff support person should contact Joe Hart of D&R International at jhart@drintl.com or 301/588-9387. Written comments may also be sent to Hart via e-mail or fax (301/588-0854). Non-disclosure agreements are available upon request.

LEGAL NEWS
Appeals Court Certifies Class in Pella Consumer Fraud Suit; Attorney Offers Tips
A U.S. Court of Appeals recently affirmed a lower court’s decision to certify a consumer fraud class action suit against Pella Window Corp. In the suit, the plaintiffs allege that the company’s aluminum-clad wood ProLine casement windows contain a design defect that permits water to seep behind the aluminum cladding and causes the wood to rot at an accelerated rate, according to court documents. Though Pella modified its warranty program accordingly when it learned of the defect, plaintiffs claim “that it committed consumer fraud by not publicly declaring the role that the purported design defect plays in allowing rot.”

Though a lower court had previously ruled to certify the class, Pella had appealed this decision—but the decision was affirmed in late April by the U.S. Court of Appeals for the Seventh Circuit, leaving many to fear similar, future consumer fraud suits could be on the horizon.

Attorney David Toney of Adams and Reese LLP in Houston is not directly involved in the case, but does work closely with door and window manufacturers and suggests suits of this type—those focused on design-based claims—could become more common.

“What’s more and more scary are these design-based product challenges,” he says. “ … They claim that the design of a window is defective in each and every window manufactured. It’s really scary because once they find an issue with one product, it becomes a much broader issue for the client.”

So what can manufacturers do to protect themselves? Though there’s no real way to prevent such claims, Toney suggests it’s important to make sure your marketing materials, brochures and warranties are worded so that they don’t offer unreasonable expectations to the consumer.

“Set a reasonable expectation—and you do that through your marketing, literature, brochures, and warranties,” he says. “And secondly, meet those expectations.”
With a push for green building and many of the new, emerging government programs, this becomes especially important, Toney adds.

“The guys who do consumer class action work have figured out that there are some substantial companies in the door and window and building products industries, and, especially now with the green building, companies need to be really careful and exercise extreme care with what they’re marketing to the customers,” he says. “With the money the government is throwing at green building and making buildings more efficient, these attorneys know that [manufacturers] may be marketing something that they haven’t quite developed yet or products that haven’t quite met the performance yet.”
But he stresses that honesty is the best strategy.

“It all comes back to that sales literature, all those representations you make—just try to make it as clear and reasonable as possible and something you can perform to and defend if you do get stuck in one of these [suits],” he says.

LEGISLATION
Senate Passes Amendment to Allow Small Contractors
Time to Comply with New EPA Lead Paint Rule
The U.S. Senate has passed an amendment to the Fiscal Year 2010 Emergency Supplemental Appropriations bill designed to provide contractors with additional time to comply with the recently enacted Environmental Protection Agency (EPA) lead paint rule (see related story in May 2010 DWM, page 26). The bill, authored by Sen. Susan Collins (R – Maine) and Sen. Olympia Snowe (R – Maine), would prohibit the EPA from levying fines against contractors who have signed up for training classes by September 30, 2010.

The rule, called “Lead: Renovation, Repair and Paint Rule,” went into effect April 22, 2010. It requires that contractors who perform work in homes built before 1978 be EPA-certified or face fines up to $37,500 per violation per day.

“Unfortunately, as a result of EPA’s lack of planning, there still are not enough certified trainers in most states to educate contractors about these new requirements,” reads a statement from Sen. Collins’ office. “Three states, Louisiana, Wyoming and South Dakota, do not have a single EPA-certified trainer. In Maine, there are just three EPA-certified trainers. Hundreds of Maine contractors have signed up for training, but are being forced to wait.”

Collins says a delay in the levying of fines would allow adequate time for contractors to comply with the new regulation.