Federal Facilities – Implementation of Energy Savings Projects and Performance-Based Contracting for Energy Savings

How will your Federal Department or Agency efficiently implement the numerous facility renovation, repair, and sustainability project required to meet Presidential energy conservation mandates?

Job Order Contracting – JOC, is perhaps the only proven, collaborative, performance-based construction delivery method designed specifically for the numerous task faced by facility managers.  Proven over the past 20+ years and now supported by technology such as RSMeans JOCWorks, and 4Clicks Project Estimator, transparency, higher productivity, and ease-of-implementation are a reality.  Learn more:  Software, JOC White Paper, A Comparison of Cost Estimation Software Tools.

The White House

Office of the Press Secretary

For Immediate Release
December 02, 2011

Presidential Memorandum — Implementation of Energy Savings Projects and Performance-Based Contracting for energy savings

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: Implementation of Energy Savings Projects and Performance-Based Contracting for Energy Savings

The Federal Government owns and operates nearly 3 billion square feet of Federal building space. Upgrading the energy performance of buildings is one of the fastest and most effective ways to reduce energy costs, cut pollution, and create jobs in the construction and energy sectors. We have a responsibility to lead by example, reduce our energy use, and operate our buildings efficiently.

Meeting that responsibility requires executive departments and agencies (agencies) to evaluate their facilities, identify potential savings, and appropriately leverage both private and public sector funding to invest in comprehensive energy conservation projects that cut energy costs. The Federal Government can do so by increasing the pace of the implementation of energy conservation measures, and improving the results from its energy efficiency investments.

In Executive Order 13514 of October 5, 2009 (Federal Leadership in Environmental, Energy, and Economic Performance), my Administration reaffirmed a commitment to reduce energy intensity in agency buildings. In addition, through my memorandum of June 10, 2010 (Disposing of Unneeded Federal Real Estate – Increasing Sales Proceeds, Cutting Operating Costs, and Improving Energy Efficiency), and through the Campaign to Cut Waste, my Administration has directed agencies to cut energy costs in agency facilities as part of a broader effort to reduce spending and shrink the Federal Government’s real estate footprint. In order to ensure agencies fully meet these goals and maximize the cost reduction and job creation potential of making Federal buildings more energy efficient, I hereby direct the following:

Section 1. Implement and Prioritize Energy Conservation Measures. (a) Agencies shall fully implement energy conservation measures (ECMs) in Federal buildings with a payback time of less than 10 years, consistent with real property and capital improvement plans. Agencies shall prioritize ECMs with the greatest return on investment, leveraging both direct appropriations and performance contracting, consistent with guidance by the Office of Management and Budget (OMB).

(b) The Federal Government shall enter into a minimum of $2 billion in performance-based contracts in Federal building energy efficiency within 24 months from the date of this memorandum. Each agency shall include its anticipated total performance-based contract volume in its plan submitted pursuant to subsection (d) of this section.

(c) In order to maximize efficiency and return on investment to the American taxpayer, agencies are encouraged to enter into installation-wide and portfolio-wide performance contracts and undertake comprehensive projects that include short-term and long-term ECMs, consistent with Government-wide small business contracting policies.

(d) Agencies shall prioritize new projects under this section based on return on investment, develop a planned implementation schedule, and reconcile all investments with actions undertaken pursuant to Executive Order 13576 of June 13, 2011 (Delivering an Efficient, Effective, and Accountable Government). Agencies shall ensure that any performance-based contracts are consistent with, and do not duplicate or conflict with, real property plans or planned capital improvements.

(e) No later than January 31, 2012, agencies shall report their planned implementation schedule described in subsection (d) of this section to the Department of Energy’s Federal Energy Management Program (FEMP), OMB, and the Council on Environmental Quality (CEQ).

(f) Beginning in 2012, agencies shall incorporate the planned implementation schedule into their annual Strategic Sustainability Performance Plans in furtherance of Executive Order 13514.

Sec. 2. Complete Required Energy and Water Evaluations. (a) Agencies shall identify in the Department of Energy’s Compliance Tracking System (CTS) any ECMs that have been implemented, and ensure that the CTS is regularly updated.

(b) Consistent with section 432 of the Energy Independence and Security Act of 2007 (42 U.S.C. 8253(f)(2)), agencies shall complete all energy and water evaluations and report the ECMs and associated cost saving opportunities identified through these evaluations to the CTS.

Sec. 3. Transparency and Accountability. (a) Agencies shall, where technically feasible, continue efforts to connect meters and advanced metering devices to enterprise energy management systems to streamline and optimize measurement, management, and reporting of facility energy use.

(b) The FEMP shall assist agencies with timely implementation of subsection (a) of this section. Consistent with its mission and responsibilities, FEMP shall also track Government-wide implementation progress. Subject to the protection of critical infrastructure information and avoidance of disclosure of sensitive information relating to national security, FEMP shall annually publish these results, as well as facility energy usage data, in machine readable formats on agency websites, consistent with applicable OMB guidance.

(c) The OMB shall continue to track agency implementation and progress towards goal achievement on its Energy and Sustainability Scorecard, and publicly report on agency progress, pursuant to the requirements of Executive Order 13514.

Sec. 4. Applicability. This memorandum shall apply to agency activities, personnel, resources, and facilities located within the United States. The head of an agency may apply this memorandum to activities, personnel, resources, and facilities of the agency that are not located within the United States, to

the extent the head of the agency determines that doing so is in the interest of the United States.

Sec. 5. Exemption Authority. (a) The Director of National Intelligence may exempt an intelligence activity of the United States, and related personnel, resources, and facilities, from the provisions of this memorandum, to the extent the Director determines necessary to protect intelligence sources and methods from unauthorized disclosure.

(b) The head of an agency may exempt particular facilities from the provisions of this memorandum where doing so is in the interest of national security. If the head of an agency issues an exemption under this subsection, the agency must notify the Chair of CEQ in writing within 30 days of issuance of the exemption. To the maximum extent practicable, and without compromising national security, each agency shall strive to comply with the purposes, goals, and implementation steps in this memorandum.

Sec. 6. Definitions. For the purposes of this memorandum:

(a) “energy conservation measure” (ECM) has the same meaning as in 42 U.S.C. 8259(d).

(b) “energy savings performance contract” (ESPC), as authorized by 42 U.S.C. 8287, means a contract (or task order) awarded to an energy service company (ESCO) for up to 25 years that provides for the design, acquisition, financing, installation, testing, operation, and maintenance and repair of identified ECMs at one or more locations. Under an ESPC, the ESCO incurs the costs of project implementation, including audits, acquiring and installing equipment, and training personnel, in exchange for a predetermined price. Payment to the ESCO is contingent upon realizing a guaranteed stream of future savings, with excess savings accruing to the Federal Government.

(c) “performance-based contract” means a contract that identifies expected deliverables, performance measures, or outcomes, and makes payment contingent on their successful achievement. Performance-based contracts also use appropriate techniques, which may include consequences or incentives to ensure that the agreed-upon value to the agency is received. Performance-based contracts, which include ESPCs, can be performed by any qualified contractor, including utilities.

(d) “agency” has the same meaning as in Executive Order 13514.

(e) “United States” means the fifty States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Northern Mariana Islands, and associated territorial waters and airspace.

Sec. 7. General Provisions. (a) This memorandum shall be implemented consistent with applicable law, including international trade obligations, and subject to the availability of appropriations.

(b) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) authority granted by law to a department, agency, or the head thereof; or

(ii) functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

BARACK OBAMA

THE WHITE HOUSE
Office of the Press Secretary
___________________________________________________________________________
For Immediate Release October 5, 2009
President Obama signs an Executive Order
Focused on Federal Leadership in Environmental,
Energy, and Economic Performance
WASHINGTON, DC – Demonstrating a commitment to lead by example, President Obama signed an Executive Order (attached) today that sets sustainability goals for Federal agencies and focuses on making improvements in their environmental, energy and economic performance. The Executive Order requires Federal agencies to set a 2020 greenhouse gas emissions reduction target within 90 days; increase energy efficiency; reduce fleet petroleum consumption; conserve water; reduce waste; support sustainable communities; and leverage Federal purchasing power to promote environmentally-responsible products and technologies.
“As the largest consumer of energy in the U.S. economy, the Federal government can and should lead by example when it comes to creating innovative ways to reduce greenhouse gas emissions, increase energy efficiency, conserve water, reduce waste, and use environmentally-responsible products and technologies,” said President Obama. “This Executive Order builds on the momentum of the Recovery Act to help create a clean energy economy and demonstrates the Federal government’s commitment, over and above what is already being done, to reducing emissions and saving money.”
The Federal government occupies nearly 500,000 buildings, operates more than 600,000 vehicles, employs more than 1.8 million civilians, and purchases more than $500 billion per year in goods and services. The Executive Order builds on and expands the energy reduction and environmental requirements of Executive Order 13423 by making reductions of greenhouse gas emissions a priority of the Federal government, and by requiring agencies to develop sustainability plans focused on cost-effective projects and programs.
Projected benefits to the taxpayer include substantial energy savings and avoided costs from improved efficiency. The Executive Order was developed by the Council on Environmental Quality (CEQ), the Office of Management and Budget (OMB) and the Office of the Federal Environmental Executive, with input from the Federal agencies that are represented on the Steering Committee established by Executive Order 13423.
The new Executive Order requires agencies to measure, manage, and reduce greenhouse gas emissions toward agency-defined targets. It describes a process by which agency goals will be set and reported to the President by the Chair of CEQ. The Executive Order also requires agencies to meet a number of energy, water, and waste reduction targets, including:
  • 30% reduction in vehicle fleet petroleum use by 2020;
  • 26% improvement in water efficiency by 2020;
  • 50% recycling and waste diversion by 2015;
  • 95% of all applicable contracts will meet sustainability requirements;
  • Implementation of the 2030 net-zero-energy building requirement;
  • Implementation of the stormwater provisions of the Energy Independence and Security Act of 2007, section 438; and
  • Development of guidance for sustainable Federal building locations in alignment with the Livability Principles put forward by the Department of Housing and Urban Development, the Department of Transportation, and the Environmental Protection Agency.
Implementation of the Executive Order will focus on integrating achievement of sustainability goals with agency mission and strategic planning to optimize performance and minimize implementation costs. Each agency will develop and carry out an integrated Strategic Sustainability Performance Plan that prioritizes the agency’s actions toward the goals of the Executive Order based on lifecycle return on investments. Implementation will be managed through the previously-established Office of the Federal Environmental Executive, working in close partnership with OMB, CEQ and the agencies.
Examples of Federal employees and their facilities promoting environmental stewardship exist throughout the country. The U.S. Department of Veterans Affairs National Energy Business Center has recently awarded a design-build contract for a wind turbine electric generation system to serve their Medical Center in St. Cloud, Minnesota. The 600-kW turbine installation, to be completed in spring 2011, is projected to supply up to 15 percent of the facility’s annual electricity usage.
The U.S. General Services Administration’s Denver Federal Center (DFC) in Lakewood, Colorado will be installing a 7 megawatt photovoltaic system as part of a large modernization effort. The primary goal of the project is to provide a reliable utility infrastructure to service tenant agencies for the next 50 years. This facility will feed renewable energy back into the grid on weekends and cover 30 acres.
Many federal agencies have received recognition for their work to integrate environmental considerations into their daily operations and management decisions including: the Air Force Sheppard Air Force Base in Texas for their “Sheppard Puts the R in Recycling” program, the Department of Treasury for their petroleum use reduction, the Department of Energy Y-12 National Security Complex in Tennessee for pollution prevention, the United States Postal Service for their Green Purchasing Program, U.S. Department of Agriculture “Sowing the Seeds for Change” Extreme Makeover Team in Deer River Ranger District in Minnesota; and the Department of Health & Human Services National Institutes of Health in Maryland for their laboratory decommissioning protocol.*Updated 10/06/09 to reflect more accurate data from GSA.

LEED Abandoned by DOD?

In the recent past, all new DOD construction projects were required to meet the LEED Silver or an equivalent standard and/or to comply with the five principles of High Performance Sustainable Buildings. This year a new construction code for high-performance, sustainable buildings, is expected that will govern all new construction, major renovations and leased space acquisition. This new code, based heavily on ASHRAE 189.1, will accelerate DoD’s move toward efficient, sustainable facilities that cost less to own and operate, leave a smaller environmental footprint and improve employee productivity.

Testimony by  Dr. Dorothy Robyn Deputy Under Secretary of Defense (Installations and Environment) before the House Appropriations Committee Subcommittee on Military Construction, Veterans Affairs and Related Agencies on March 7, 2012 to present the President’s Fiscal Year (FY) 2013 budget request for the Department of Defense programs to support installations, facility energy and the
environment covered four topics:

international and domestic basing, including the Department’s request for authorization of two new rounds of Base Realignment and Closure;

management of the built environment, including the programs that support military construction,
family housing,  sustainment and recapitalization;

strategy for managing facility energy to reduce costs and improve installation energy security;

and  management of the natural environment, including the programs that support environmental conservation and restoration, environmental technology and compatible development.

Relative to LEED it is important to note that  Congress has established a requirement to report  the return on investment from using consensus standards such as ASHRAE 189.1.  This is important to note as with more than 300,000 buildings and 2.2 billion square feet of building space, the DoD has a physical infrastructure footprint three times that of Wal-Mart and six times that of GSA.  The DOD’s  energy bill is approximately $4 billion annually—roughly 10 percent of what DoD spends to maintain its installation infrastructure ($40 billion).  Additionally facility energy represents nearly 40 percent of DOD greenhouse gas emissions.

Full Testimony

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Buildings and Energy Benchmarking

Source: Consulting/Specifying Engineer

One of the most widely used energy benchmarking systems in the United States is Energy Star Portfolio Manager, a free Web-based tool maintained by the U.S. Environmental Protection Agency (EPA). Users input basic building parameters, such as space type, square footage, hours of operation, number of occupants, and number of personal computers (PCs), as well as 12 months of total energy data. This information is normalized to weather conditions and run through an algorithm that compares the input building to one with similar operating characteristics from the CBECS database. The program calculates a rating of 1 to 100 based on the building source EUI; source energy accounts for both the raw fuels and the energy products from the raw fuels consumed. This score represents the percentile performance above other comparable buildings. For example, a score of 67 means the building is performing better than 67% of all similar buildings nationwide. A rating of 50 is average, and 75 earns the building an Energy Star certification label for that year. This system compares all buildings on one scale and allows for tracking throughout the lifetime of the facility.

Energy Star Benchmarking Buildings

Placing buildings in an easily understood comparative metric puts this EUI statistic in perspective. Understanding the implications of the score and aligning this with the building marketing strategies will drive the basis for developing a target score. Is the goal to reduce spending by decreasing annual operating costs by 10%? Is the objective to increase leased tenant space by achieving Energy Star or another green certification? Are you aiming to gain a competitive edge over similar commercial buildings in your region? Benchmarking a facility or achieving a high rating may not only provide avenues for cost savings and certifications opportunities, but may be a necessity to comply with city or state legislation.

Policies that mandate the use of a benchmarking tool to rate and disclose the score for commercial facilities are currently being written and implemented throughout the world. New York City’s Local Law 84 in the Greener Greater Building Plan is an excellent example. A study by New York City revealed that buildings are responsible for 75% of the city’s total annual carbon emissions. Of these buildings, 85% are expected to still exist in 2030. This information, coupled with expensive retail energy prices, drove the effort for an energy efficiency policy. The law mandates annual energy and water benchmark reports for city buildings that are more than 10,000 sq ft, as well as for privately owned buildings that are more than 50,000 sq ft. It requires the use of Energy Star Portfolio Manager and the disclosure of the score.

Several other U.S. cities, including San Francisco, Seattle, Austin, and Washington, D.C., have already adopted similar legislation (see Figure 3). Of these, New York and San Francisco are coupled with a plan of action to reduce energy consumption for commercial buildings. Methods such as ASHRAE Energy Audits or retrocommissioning are included as mandatory efforts on a timed cycle.

Building Energy Ratings

The policies in place do not require achieving a specific score; however, some legislation mandates audits for buildings with low ratings, such as Washington’s Efficiency First bill, law SB 5854. For public buildings greater than 10,000 sq ft with an Energy Star score less than 50, a preliminary Energy Audit is required.

All of the current legislation relies on Energy Star. Due to the release of information explaining no results of the 2007 CBECS survey will be published and no 2011 survey will be administered, Energy Star will be based on 2003 data for the foreseeable future. This leaves cities in a possible conundrum if funding isn’t restored. However, there are alternatives on the horizon. The National Institute of Building Sciences is establishing a High-Performance Building Data Collection Initiative to determine a methodology for collecting and disseminating energy and building attribute data. Also, on Feb. 10, 2011, ASTM E2797-11 Standard Practice for Building Energy Performance Assessment for a Building Involved in a Real Estate Transaction was released. The standard aims to standardize collection, compilation, and analysis of building energy use and cost data.

Internationally, countries such as Australia, Russia, and Singapore have implemented policies to help regulate benchmarking and energy efficiency transparency. In the European Union (EU), the Energy Performance of Buildings Directive (EPBD) mandates that an energy performance certificate is provided to the owner or by the owner to the prospective buyer or tenant when buildings are constructed, sold, or rented out. Countries within the EU can develop their own systems for benchmarking buildings for the energy certificate. In Italy, for example, the buildings are given a score from A+ to G based on their EUI. EPBD has raised the awareness and importance of energy efficiency but has been a challenge for many of the member states to implement. In May 2010, EPBD was recast in hopes to simplify the language and process, increase the scope, strengthen quality control of the certificates, and promote low/zero-carbon buildings. As in all institutions, each benchmarking procedure or tool is different and has various nuances.

Energy Star Portfolio Manager is among the most popular benchmarking tools and is cited most often in U.S. legislation, and therefore this article will take the time to explore the specifics of benchmarking using this method. Even though the lack of updated CBECS data could halt future revisions of Portfolio Manager, current legislation mandates its use. Following is a review of frequently asked benchmarking questions that can help building owners avoid incorrect data entry or user confusion.

Your facility is not compared to other buildings that are using Energy Star Portfolio Manager as a basis for their ratings. The Energy Star score is based on an algorithm that compares your facility inputs to other buildings in the CBECS database that have similar regional location and operating characteristics. CBECS is a national sample survey conducted every four years to collect data on commercial buildings in the U.S., namely their energy-related characteristics and energy consumption. The last survey was completed in 2007, but data will not be released due to invalid results and the 2011 survey will not be conducted because funding has been cut. Therefore, Energy Star is currently using CBECS data from 2003 and will be for the foreseeable future. If funding is restored, as buildings increase in energy efficiency, however, it would be expected that the database of facilities would increase in energy efficiency and create a stricter benchmark comparison. An Energy Star rating is only valid for the 12 months of energy data being analyzed; therefore, facility owners are encouraged to maintain, track, and update the parameters and energy data.

One of the common factors that contribute to incorrect ratings is a misunderstanding of the definition of “weekly operating hours.” Energy Star defines it as the “number of hours per week that a building (or space within a building) is occupied by at least 75% of the tenant employees, and is therefore considered to be operational.” This does not include HVAC warm-up or cool-down hours or the time that 10% of the occupants remain after typical hours. This also means that the weekly operating hours should be set to zero for vacant spaces, because no occupants are present even though the space may be supplied with conditioned air.

Energy Star has several classifying space types such as office, bank, school, retail, hotel, data center, and so on. The EPA has recently further defined data centers, characterizing them as “spaces specifically designed and equipped to meet the needs of high density computing equipment such as server racks, used for data storage and processing… When a data center is located within a larger building, it will usually have its own power and cooling systems. The data center space is intended for sophisticated computing and server functions; it should not be used to represent a server closet or computer training area.” For spaces that do not qualify as data centers but are still considered server rooms that run 24/7 and have separate cooling, the space should be entered as “office space” with 168 operating hours per week, zero number of occupants, and the number of PCs equal to the number of servers. This is one exception to the weekly operating hours rule described above. For spaces that are more similar to IT closets or server rooms that lack separate cooling systems, the space is considered a supporting function and the square footage should be aggregated with the total office space.

Energy Star recently provided a module for more detailed data center inputs. Several commercial facilities with high-density computing areas encountered difficulties in accurately representing their facility. The changes allow the user to input IT energy metering configuration as well as the energy consumption for the IT energy, defined as “the total amount of energy required by server racks, storage silos, and other IT equipment in the data center.” This designation does not include HVAC equipment needed to cool the space or lighting needed to illuminate the space. Energy Star requires the output of any UPS to be submetered. Most UPSs connected to IT equipment have the capability to provide peak kilowatt consumption but do not have the immediate capability to provide kilowatt-hour consumption data. The UPS will need to be retrofitted or a submeter will need to be installed to capture the kilowatt-hour consumption for just the IT equipment. The EPA will make the IT energy a mandatory requirement for data center space types beginning June 15, 2012. Consequently, buildings must have their IT Energy submetered as early as June 15, 2011, for applications submitted in June 2012 (because 12 months of energy data is required).

Energy Star is meant to be a straightforward but accurate way to benchmark a facility. The easiest way to model a commercial facility in Portfolio Manager is to aggregate all of the tenants and supporting functions into one office-space-type input. If there are tenants that are generally present for 10 hours or more per week outside the typical occupied hours of the facility, those tenants should be separated out to better represent their occupied hours.

There are two ways this issue is currently being addressed: laws mandating tenants to disclose data, and utility programs reporting combined base building and tenant usage. An increasing number of utility providers are supplying their customers with aggregate monthly energy data without the individual tenant breakdown, therefore avoiding tenant disclosure issues and streamlining and simplifying the energy data collection and input. Commonwealth Edison (ComEd), a northern Illinois energy delivery company, developed a Web-based tool called Whole Building Energy Usage. This tool allows the user to first confirm the tenants and accounts present on-site, and then view one aggregate number each month for the base building and tenant usage combined.

One of the newest changes in Energy Star concerns the way the EPA is awarding the year in which you are labeled. Previously, a facility was awarded an Energy Star label based on the period ending date, or the last date of the 12 months of energy information under consideration. The application was good for 120 days from that period ending date. If a facility had 12 months of data from Jan. 1 to Dec. 31, 2010, and submitted an application in February 2011, the certification would be for 2010. Energy Star is now awarding certification labels based on the date the application is approved.

You’ve put your building on the map. You have a starting point. But where do you want to go and how do you plan to get there? The benchmarking analysis creates a fork in the road—meeting and surpassing the target versus falling short of the objectives. In either case, the facility owner or manager is, at a minimum, aware of how the building performs relative to similar buildings. If the facility already meets its target, that doesn’t mean there is no work to do. Energy Star ratings and other benchmarking scores are only valid for the 12 months being analyzed. With nationwide energy and disclosure policies, stricter energy standards and codes, numerous available green certification labels, and a competitive commercial market, a facility can quickly lag behind its rivals. To remain sustainable, the facility and owner must be environmentally friendly, economically profitable, and socially equitable.

A simple first step to maintaining a competitive edge is to regularly update a building’s benchmark and consciously monitor the usage trends and score. Performing this exercise once won’t get the results you are looking for. Continuously updating the benchmarking analysis is simple and inexpensive. It can save time and energy if action is taken when monitored values slide outside expected ranges.

The building energy performance field is evolving in response to market demands. If a building is rated as less efficient compared to its peers, it can negatively affect financial performance and competitive market presence, possibly raising red flags to lenders or other financers. In addition, there is a growing public concern for verification of energy savings and true performance. Local, state, and federal policies address some of this concern by mandating not only energy benchmarking, but also the public disclosure of the results. Not only are policies using benchmarking to drive energy reductions, but so are some green certification systems, which many building owners and managers use as a marketing tool. The U.S. Green Building Council’s (USGBC) LEED Existing Building Operations and Maintenance Energy and Atmosphere Prerequisite 2 requires the use of Energy Star to benchmark the facility and achieve a score of at least 69 to qualify for a potential certification. Green Building Initiative’s (GBI) Green Globes and the Building Owner’s and Manager’s BOMA 360 program also use Energy Star to document points awarded for energy performance. It is unclear how the lack of future data will affect these rating systems; however, it is clear the benchmarking is a critical path and the driving force behind energy reduction, tracking, and performance disclosure.

As more owners properly benchmark their facility and begin to “place their buildings on the map,” establish a target, develop a roadmap, and monitor progress, we are collectively working toward reducing the environmental impact of buildings.

High Performance Buildings – Energy Management Systems

Building Efficiency:
Building-wide, Proactive Energy Management Systems for High-Performance Buildings

machine learning

Achieving and sustaining energy savings depends on advances in energy management (EM)–for example, the ability to exploit occupancy, energy prices, and weather trends when optimizing building system performance. Reducing the computational complexity of building-wide EM systems will make them more desirable.

Working with BuildingIQ, an Australian building automation start-up firm, Argonne is developing a proactive EM system to address these challenges. While building operations are inherently dynamic, with changes occurring quickly in external conditions, building systems respond slowly to these changes and provide an opportunity to optimize energy use, occupant comfort, and system responsiveness. To capture that opportunity, Argonne’s system will use adaptive building-wide predictive models that account for zone topology, energy and mass balances, HVAC systems, real-time occupancy, energy prices, and weather forecast information.

EM systems rely on iterative solutions of complex optimization problems, which need to be solved quickly and reliably to ensure appropriate real-time performance. Fast optimization algorithms also enable implementation with inexpensive, commodity hardware, thereby enabling widespread deployment. The research team is leveraging Argonne’s expertise in numerical optimization to deploy state-of-the-art and open-source optimization functionality and developing model reformulations and warm-starting strategies. These capabilities will enable set-point updates in a few minutes for large and highly detailed building models and long forecast horizons, enhancing system responsiveness and robustness.

The algorithms are being implemented in BuildingIQ’s system, which uses building models constructed automatically from sensor data and machine learning techniques. This approach avoids the need for expensive model development tasks and simulation engines that limit deployment.

A proactive EM system is currently in use in the Theory and Computational Science Building on the Argonne campus. A new generation of occupancy sensors, developed by global technology innovator Johnson Controls, will be field-tested as part of this demonstration project. Argonne and BuildingIQ will add new data mining capabilities to allow for association of occupancy patterns with building zones or other items of interest, while maintaining confidentiality of occupant identities.

This project is being funded by U.S. Department of Energy’s Building Technologies Program.

 

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Obama Missing the Point on Sustainability?

President Obama’s  State of the Union Address calls for 80% clean power by 2035, but…  WHAT ABOUT ENERGY CONSERVATION!!!!

Clean energy is great, but likely a pipe dream.  Furthermore, none of the “renewable” energy sources will meet current demands and/or be deployable by 2035.

We need to get serious about implementing energy conservation measures and associated facility system upgrades.   It is no secret that existing building energy use can be reduced 30% to 50% by upgrading systems and adopting better utilization practices.

The real issues is that appropriate incentives and efficient  transparent project delivery methods are not being used.

The combination of objective facility assessments with efficient project delivery methods such as JOC – Job Order Contracting, and IPD – Integrated Project Design, associated mandates and financial incentives is sorely needed!

Time to stop talking and start acting?

 

 

DOE to Impose Limits Regarding Use of Fossil Fuels – For New Government Buildings

Summary

The U.S. Department of Energy (DOE) is publishing this notice of proposed rulemaking to implement provisions of the Energy Conservation and Production Act, as amended by the Energy Independence and Security Act of 2007 that require DOE to establish revised performance standards for the construction of all new Federal buildings, including commercial buildings, multi-family high-rise residential buildings and low-rise residential buildings. The provisions in this notice of proposed rulemaking specifically address the reduction of fossil fuel-generated energy consumption in new Federal buildings and Federal buildings undergoing major renovations. This proposed rule also addresses how agencies other than the General Services Administration (GSA) may petition DOE for a downward adjustment of the requirements if they believe meeting the full fossil fuel-generated energy consumption reduction level is technically impracticable in light of the specified functional needs for that building.Show citation box

Unified Agenda

Timeline

1 action from August 2010

  • August 2010
    • NPRM

Table of Contents

Tables

DATES: Back to Top

Public comments on this proposed rule will be accepted until December 14, 2010. DOE will hold a public meeting on Friday, November 12, 2010, from 9 a.m. to 5 p.m., in Washington, DC. Interested persons who wish to speak at the public meeting should e-mail or phone Ms. Brenda Edwards by 4:30 p.m., Friday, October 29, 2010. DOE must receive a signed original and an electronic copy of statements to be given at the public meeting before 4 p.m., Friday, November 5, 2010. Additionally, DOE plans to conduct the public meeting via webinar. You can attend the public meeting via webinar, and registration information, participant instructions, and information about the capabilities available to webinar participants will be published on the Building Energy Codes Program’s Web site http://www.energycodes.gov/events/doe/fossil_fuels.stm, and/or on the Federal Energy Management Program’s Web site http://www1.eere.energy.gov/femp/regulations/notices_rules.html. Participants are responsible for ensuring their systems are compatible with the webinar software.Show citation box

DOE will accept comments, data, and information regarding this notice of proposed rulemaking (NOPR) before and after the public meeting, but no later than December 14, 2010. If you submit information that you believe to be exempt by law from public disclosure, you should submit one complete copy, as well as one copy from which the information claimed to be exempt by law from public disclosure has been deleted. DOE is responsible for the final determination with regard to disclosure or nondisclosure of the information and for treating it accordingly under the DOE Freedom of Information regulations at 10 CFR 1004.11.Show citation box

ADDRESSES: Back to Top

You may submit comments, identified by any of the following methods:Show citation box

  • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Show citation box
  • E-mail: FossilFuelReduct-2010-STD-0031@ee.doe.gov. Include EERE-2010-BT-STD-0031 and/or RIN 1904-AB96 in the subject line of the message. Show citation box
  • Postal Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, Fossil Fuel-Generated Energy Consumption Reduction for New Federal Buildings and Major Renovations of Federal Buildings EERE-2010-BT-STD-0031 and/or RIN 1904-AB96, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone: (202) 586-9138. Please submit one signed paper original. Due to the potential delays in DOE’s receipt and processing of mail sent through the U.S. Postal Service, DOE encourages respondents to submit comments electronically to ensure timely receipt. Show citation box
  • Hand Delivery/Courier: Brenda Edwards, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Show citation box

Instructions: All submissions must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking.Show citation box

Docket: For access to the docket to read background documents or comments received by DOE, go to the U.S. Department of Energy, Forrestal Building, Room 5E-080 (Resource Room of the Federal Energy Management Program), 1000 Independence Avenue, SW., Washington, DC, (202) 586-9127, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Please call Brenda Edwards at (202) 586-2945 for additional information regarding visiting the Resource Room.Show citation box

FOR FURTHER INFORMATION CONTACT: Back to Top

Margo Appel, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-9495, e-mail: margo.appel@hq.doe.gov, or Ami Grace-Tardy, U.S. Department of Energy, Office of the General Counsel, Forrestal Building, GC-71, 1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-5709, e-mail: ami.grace-tardy@hq.doe.gov.Show citation box

SUPPLEMENTARY INFORMATION: Back to Top

Show citation box

I. BackgroundShow citation box

II. Discussion of Proposed RuleShow citation box

III. Reference ResourcesShow citation box

IV. Regulatory ReviewShow citation box

V. Approval by the Office of the SecretaryShow citation box

I. Background Back to Top

Section 305 of the Energy Conservation and Production Act (ECPA) established energy conservation requirements for Federal buildings (42 U.S.C. 6834). Section 433(a) of the Energy Independence and Security Act of 2007 (Pub. L. 110-140) (EISA) amended section 305 of ECPA and directed that DOE establish regulations that revised Federal building energy efficiency performance standards to require that “[f]or new Federal buildings and Federal buildings undergoing major renovations, with respect to which the Administrator of General Services is required to transmit a prospectus to Congress under section 3307 of Title 40, in the case of public buildings (as defined in section 3301 of Title 40), or of at least $2,500,000 in costs adjusted annually for inflation for other buildings,” the “buildings shall be designed so that the fossil fuel-generated energy consumption of the buildings is reduced as compared with such energy consumption by a similar building in fiscal year 2003 (as measured by Commercial Buildings Energy Consumption Survey or Residential Energy Consumption Survey data from the Energy Information Agency), by” specific graduated percentages ranging from 55 percent to 100 percent over a specified period of time beginning in fiscal year 2010 and ending in fiscal year 2030 (42 U.S.C. 6834(a)(3)(D)(i)(I)).Show citation box

In addition, ECPA as amended by EISA permits DOE upon petition by an agency subject to the statutory requirements, to adjust the applicable numeric reduction requirement “downward with respect to a specific building, if the head of the agency designing the building certifies in writing that meeting such requirement would be technically impracticable in light of the agency’s specified functional needs for that building and” DOE concurs with the agency’s conclusion (42 U.S.C. 6834(a)(3)(D)(i)(II)). ECPA as amended by EISA further directs that such an adjustment does not apply to GSA (42 U.S.C. 6834(a)(3)(D)(i)(II)).Show citation box

Today’s proposed rule on fossil fuel-generated energy consumption reduction proposes to amend certain portions of 10 CFR parts 433 and 435, the regulations governing energy efficiency in Federal buildings. Additionally, DOE published a proposed rule on sustainable design standards for new Federal buildings on May 28, 2010 (75 FR 29933), which also proposes to amend certain portions of 10 CFR parts 433 and 435. DOE has already addressed some elements of today’s proposed rule in the sustainable design proposed rule. Specifically, overlapping elements of both proposed rules are the definitions of “new Federal building” and “major renovation.” The proposed regulatory text in today’s document would amend the current regulatory text, without consideration of amendments that may result from the sustainable design rulemaking. If and when these two rulemakings are finalized, DOE will coordinate the final regulatory text between the two rulemakings.Show citation box

In addition, there are a number of statutory provisions, regulations, Executive Orders, and memorandums of understanding that govern the construction of new Federal buildings or major renovations to Federal buildings. These include, but are not limited to, Executive Order 13514 (74 FR 52117); sections 323, 433, 434, and 523 of the Energy Independence and Security Act 2007 (Pub. L. 110-140); Executive Order 13423 (72 FR 3919); the Guiding Principles for Federal Leadership in High Performance and Sustainable Buildings originally adopted in the Federal Leadership in High Performance and Sustainable Buildings MOU; section 109 of the Energy Policy Act of 2005 (Pub. L. 109-58); and 10 CFR parts 433 and 435. If made final, the proposed rule would not supersede other applicable legal requirements for new Federal buildings or major renovations to Federal buildings.Show citation box

II. Discussion of Proposed Rule Back to Top

A. Overview

The proposed rule would establish revised Federal building energy efficiency performance standards for achieving the reductions in fossil fuel-generated energy consumption as listed in ECPA as amended by EISA (42 U.S.C. 6834(a)(3)(D)(i)(I)). The proposed rule would also clarify which building types are covered by the standards and which building types are excluded. The proposed rule establishes a methodology for compliance, including calculation of the maximum allowable fossil fuel-generated energy consumption based on building type, and how fossil fuel consumption resulting from electricity usage should be considered. Today’s proposed rule would also establish procedures for agencies to petition DOE for downward adjustment of the applicable percentage reduction requirement.Show citation box

B. Scope of Proposed Rule

Section 305(a)(3) of ECPA as amended directs DOE to establish regulations that require fossil fuel-generated energy consumption reductions be applied to a subset of new Federal buildings and Federal buildings undergoing major renovation. (42 U.S.C. 6834(a)(3)(D)(i)(I)) A building is in the subset of new Federal buildings and Federal buildings undergoing major renovations if the building is:Show citation box

  • A public building as defined in 40 U.S.C. 3301, [1] for which the Administrator of General Services is required to transmit a prospectus to Congress under U.S.C. Title 40, section 3307, orShow citation box
  • A building and major renovation for which the construction project cost is at least $2,500,000 (in 2007 dollars, adjusted for inflation using U.S. Department of Labor Producer Price Indexes).Show citation box

DOE notes that the definition of “Federal building” was changed in statute, and DOE is addressing that definition and the definition of “new Federal building” in a separate rulemaking. (42 U.S.C. 6832(6)) The statute now defines “Federal building” to mean any building to be constructed by, or for the use of, any Federal agency. In the separate rulemaking DOE is proposing that the term include buildings built for the purpose of being leased by a Federal agency, and privatized military housing.Show citation box

For the purpose of this rulemaking, DOE would consider public buildings to include buildings leased by a Federal agency. DOE recognizes, however, that a Federal agency may not have control over the design of a renovation of a leased building in which the agency is a tenant. For the purpose of this rulemaking, DOE considers major renovations to be limited to those renovations for which a Federal agency has significant control over the renovation design.Show citation box

Additionally, DOE would consider construction project costs to be those costs for which the agency currently has funding. That is, the $2,500,000 threshold would not include renovation activities that potentially could occur in future fiscal years. Generally, construction project costs include design, permitting, construction (materials and labor), and commissioning costs. Land and legal costs would generally not be included. DOE requests comment on this definition of construction costs.Show citation box

DOE is proposing that Federal agencies would be required to comply with the final rule starting one year from the date of the final rule. As proposed, covered buildings for which design for construction begins on or after that effective date must meet the requirements established in this rule. The one year period would provide Federal agencies sufficient time to revise new building designs prior to the start of construction and would be consistent with that the lead time provided for the energy efficiency performance standards for the construction of all new Federal buildings.Show citation box

C. Fiscal Year Percentage Reductions

Section 305 of ECPA as amended by EISA mandates that buildings subject to this proposed rule be designed to reduce fossil fuel-generated energy consumption by 55 percent beginning in fiscal year 2010, 65 percent beginning in fiscal year 2015, 80 percent beginning in fiscal year 2020, 90 percent beginning in fiscal year 2025, and 100 percent beginning in fiscal year 2030 (42 U.S.C. 6834(a)(3)(D)(i)(I)). DOE interprets this table in the statute to mean that any building whose design for construction begins in the fiscal year specified in the statute must be designed to achieve the fossil fuel-generated energy consumption reductions for that fiscal year. DOE welcomes comments on this interpretation. DOE interprets the fiscal years listed in the statute as spans of years for which the fossil fuel-generated energy consumption reductions would apply. For instance, the applicable percentage reduction for fiscal year 2010 would apply for the time span of fiscal year 2010 through fiscal year 2014. The applicable percentage reduction for fiscal year 2015 would apply for the time span of fiscal year 2015 through fiscal year 2019, and so on. DOE welcomes comments on this interpretation. Congress directed DOE to establish a rule addressing these fossil fuel-generated energy consumption reductions beginning in fiscal year 2010. DOE believes that the fossil fuel-generated energy consumption reductions do not apply to Federal agencies until the regulations implementing the reductions are finalized. Today’s proposed rule would apply to buildings for which design for construction begins at least one year after the final rule is issued.Show citation box

D. Methodology To Determine Compliance

Section 305 of ECPA as amended by EISA in part requires that the buildings that are the subject of today’s proposed rule be designed so that the fossil fuel-generated energy consumption of the buildings is reduced, as compared with such energy consumption by a similar building in fiscal year 2003 (as measured by Commercial Buildings Energy Consumption Survey or Residential Energy Consumption Survey data from the Energy Information Agency), by the percentages specified in Section 305 of ECPA. (42 U.S.C. 6834(a)(3)(D)(i)(I)).Show citation box

Determine Baseline Fossil Fuel-Generated Energy Consumption of Similar Building

To determine whether a building meets the numeric fossil fuel reduction requirements specified by ECPA as amended by EISA, it is necessary to establish a baseline against which the reductions can be measured. For purposes of this proposed rulemaking, the statute establishes the baseline to be energy consumption data from Commercial Buildings Energy Consumption Survey (CBECS) for commercial buildings and Residential Buildings Energy Consumption Survey (RECS) for residential buildings. The CBECS and RECS data, which can be found at http://www.eia.doe.gov/emeu/cbecs/contents.html and at http://www.eia.doe.gov/emeu/recs/contents.html, are based on actual reported energy use over a large sample of buildings, normalized for size to thousands of British thermal units per square foot of floor space (kBtu/ft [2] ).Show citation box

ECPA as amended by EISA requires that the buildings subject to this proposed rule be designed so that the fossil fuel-generated energy consumption of the buildings is reduced as compared with energy consumption data of a similar building in fiscal year 2003 as measured by CBECS or RECS (42 U.S.C. 6834(a)(3)(D)(i)(I)). The limited number of buildings surveyed by CBECS and RECS data does not always allow for a direct estimate of building energy use by climate zone and building type because there are only a few surveyed buildings that fit into some building type/climate zone groups. DOE believes, however, that a climate adjustment is necessary to provide reasonable baselines. Therefore, DOE is developing fossil fuel-generated energy requirements based on building type using CBECS or RECS data, and then applying a climate adjustment using the climate zones defined in the baseline energy efficiency standards at 10 CFR parts 433 and 435. This ensures that new Federal buildings will have to achieve reductions commensurate to a baseline appropriate for their respective climate zone, rather than to a national average that does not account for the impacts of the local climate on the energy use of a specific building. DOE solicits comment on the best technique for calculating the climate adjustment for the different building types.Show citation box

Note that ECPA as amended by EISA makes no distinction between fossil fuels such as natural gas, petroleum, and coal for purposes of the required fossil fuel-generated reductions addressed in today’s rule. DOE recognizes that some fossil fuels have higher CO 2 emission factors than other fossil fuels, with coal being the highest and natural gas being the lowest. While the statute does not specifically direct DOE to consider variation in fossil fuels for purposes of this rulemaking, it does not prohibit DOE from doing so. With this in mind, DOE seeks public comment on whether all fossil fuels should be treated equally or whether each should be treated differently based on CO 2 emission factors or some other factor.Show citation box

Commercial Buildings Baseline—CBECS

ECPA as amended by EISA requires that the fossil fuel-generated energy consumption of new Federal buildings and Federal buildings undergoing major renovations be compared to that of similar buildings in fiscal year 2003 as measured by CBECS or RECS data (42 U.S.C. 6834(a)(3)(D)(i)(I)). The most recent available CBECS data is from a CBECS survey that was conducted in 2003.Show citation box

As discussed in the previous section, for purposes of establishing a baseline, DOE is developing a baseline based on building type, as defined by CBECS, with a climate adjustment as discussed previously. In the CBECS data, Column G of the following table, http://www.eia.doe.gov/emeu/cbecs/cbecs2003/detailed_tables_2003/2003set9/2003excel/c3.xls, lists the energy use per square foot of various groups of buildings. Note that in CBECS documents, the phrases building type and principal building activity are used interchangeably. For the sake of consistency, this document only uses the phrase building type. Show citation box

It should be noted that DOE has commissioned an analysis of the 2003 CBECS data by building type and climate zone, and the results may be found in the report Methodology for Modeling Building Energy Performance Across the Commercial Sector by the National Renewable Energy Laboratory (NREL/TP-550-41956 2008) at http://apps1.eere.energy.gov/buildings/publications/pdfs/commercial_initiative/energy_use_intensity_targets.pdf. Examination of Table 4 in the analysis DOE commissioned indicates the insufficient sample size of the CBECS data when both building type and climate zone are used to characterize building energy consumption. DOE’s analysis produced often erratic and large variation in kBtu/ft [2] by building type across the different climate zones and even across similar climate zones, indicating an insufficient sample size. For this reason, DOE is performing additional analysis and processing of the CBECS data with the goal of producing CBECS-based requirements by building type and climate zone, with the climate zones as defined in the baseline standard for 10 CFR part 433 (ANSI/ASHRAE/IESNA Standard 90.1-2004).Show citation box

One issue that arises with the use of this CBECS data is what to do with buildings that are split into multiple building types. It is quite common to find buildings that are a combination of warehouse and office, or warehouse and retail, or education and office, or laboratory and office, or some other combination of building types. Today’s proposed rule will offer agencies the option to perform a building area-weighted average in order to determine the appropriate baseline level of fossil fuel-generated energy consumption. This process is described in 10 CFR 433.4(e) of the proposed rule.Show citation box

CBECS does not provide data on total fossil fuel-generated energy consumption in buildings. However, fossil fuel-generated energy consumption can be calculated from CBECS data by using the following equation:Show citation box

Fossil fuel-generated energy consumption = Direct consumption of fossil fuels in the building plus the amount of electrical energy consumption that is generated from fossil fuelsShow citation box

The 2003 CBECS lists direct consumption of fossil fuels in Table C1 (http://www.eia.doe.gov/emeu/cbecs/cbecs2003/detailed_tables_2003/2003set9/2003excel/c1.xls) in columns labeled natural gas and fuel oil. The 2003 CBECS also identifies both the primary electrical energy, which is the total energy used to generate and transmit electricity to a building, and the energy content of the electricity consumed in the building. In CBECS energy consumption data, the primary electrical energy required to generate and transmit electricity to the point of use in a building is roughly three times the energy content of the electricity itself. The fraction of electricity generated from fossil fuels on a nationwide basis, referred to in this document as the fossil fuel generation ratio, is calculated from data in Table 2.1 of the Energy Information Administration (EIA) 2008 Electric Power Annual Report (http://www.eia.doe.gov/cneaf/electricity/epa/epat2p1.html) by summing the electric generation from coal, petroleum, natural gas, and other gases (derived from fossil fuels) and then dividing by the total electric generation. The fossil fuel generation ratio changes each year. Because ECPA as amended by EISA requires that the fossil fuel-generated energy consumption in new buildings and those undergoing major renovations be compared to that of similar buildings in fiscal year 2003, the 2003 fossil fuel generation ratio must be used in order to calculate the baseline fossil fuel-generated energy consumption levels. For 2003, the fossil fuel generation ratio was 0.71, meaning that about 71% of all electricity in the United States is generated from fossil fuels.Show citation box

The approach taken in today’s rulemaking to estimate the fossil fuel consumption associated with electricity consumption applies the national average contribution of fossil fuel to electricity generation. This approach would result in reductions in electricity consumption being treated the same across all geographic areas, and would not reflect regional variations in the contribution of fossil fuels to electricity generation. DOE is considering a regional approach to establishing the average fossil fuel fraction associated with building energy use. Prior to reaching a conclusion regarding the use of national or regional averages of fossil fuel inputs to the electric sector, DOE will evaluate both approaches and both average and marginal factors to determine their likely effects on agency decision-making and their ability to provide an accurate indication of the likely impacts of reductions in Federal agency electricity use on the use of fossil fuels in the electric sector. For example, the use of national average fossil fuel inputs to electric sector (rather than regional averages) may provide a better indication of the actual fossil fuel reductions likely to result from reductions in electricity use. Reductions in future electricity demand are likely to cause electric utilities to reduce the power supplied by those electricity generation units or sources that have the highest marginal costs. Over both the short and long run, the types of power generation that have the highest marginal costs are more likely to be fossil fuel units than those powered by nuclear, hydropower or other renewable energy sources. This is likely to be true in all regions of the country, regardless of their current or projected reliance on fossil fuels to generate electricity. Regional marginal fossil fuel reduction factors may also be appropriate. DOE invites comments on whether it should use a national or regional approach and average or marginal factors to estimate the fossil fuel consumption associated with electricity consumption, taking into consideration the potential implications on agency decision-making and actual fossil fuel use.Show citation box

The fossil fuel-generated energy consumption baseline column in Table 1 below is calculated directly from Table C1 in the 2003 CBECS. For each building type, the primary electrical energy is multiplied by the fossil fuel generation ratio then added to the direct fossil fuel consumption to get the total fossil fuel-generated consumption for that particular building type. The total fossil fuel consumption is then divided by the total floorspace for that building type to get the fossil fuel-generated energy consumption, as reported in Table 1 below. DOE is proposing building type definitions based largely on the CBECS glossary, with some minimal modifications for regulatory clarity. DOE requests comment on the building type definitions.Show citation box

The baselines provided in Table 1 do not currently reflect any adjustment for climate-related variations in building energy use. As discussed elsewhere in this proposed rule, DOE believes a climate adjustment is necessary to provide reasonable baselines, and DOE is seeking comment on this issue. In a final rule, DOE intends to update the values provided in Table 1 for climate.Show citation box

Residential Buildings Baseline—RECS

ECPA as amended by EISA requires that the fossil fuel-generated energy consumption of new Federal buildings and Federal buildings undergoing major renovations be compared to that of similar buildings in fiscal year 2003 as measured by CBECS or RECS data (42 U.S.C. 6834(a)(3)(D)(i)(I)). Residential Energy Consumption Surveys (RECS) were conducted in 2001 and 2005; there is no data for 2003. Because the 2005 RECS data is the most recently available data at the time of this proposed rulemaking, DOE expects to use the 2005 RECS data as a baseline.Show citation box

As with the CBECS data for commercial buildings, the limited number of buildings surveyed by RECS data does not always allow for a direct calculation of building energy use by climate zone and building type without additional analysis. DOE believes, however, that a climate adjustment is necessary to provide more reasonable baselines. DOE, therefore, proposes to establish fossil fuel-generated energy requirements based on building type using RECS data, and then apply a climate adjustment using the climate zones defined in the baseline energy efficiency standard at 10 CFR part 435 (the 2004 IECC). This ensures that new Federal buildings will have to achieve reductions commensurate to a baseline appropriate for their respective climate zone, rather than to a national average baseline that is either too cold or too warm for their particular needs. DOE solicits comment on the best technique for calculating the climate adjustment for the different building types.Show citation box

The 2005 RECS lists direct consumption of fossil fuels by households in Table US9 available at http://www.eia.doe.gov/emeu/recs/recs2005/hc2005_tables/c&e/excel/tableus9.xls in columns labeled natural gas, fuel oil, kerosene, and LPG. To calculate the total fossil fuel-generated energy consumption per household for each type of housing unit, the direct fossil fuel consumption per household and fossil fuel consumption for electricity consumption per household are summed, using the same factors to determine the fossil fuel fraction of residential electricity consumption that was used for commercial buildings. The total fossil fuel-generated energy consumption per household is then divided by the average floorspace for each type of housing unit. The average floor space for each type of housing unit can be found at http://www.eia.doe.gov/emeu/recs/recs2005/c&e/summary/excel/tableus1part1.xls. This calculation produces the fossil fuel use per square foot for each type of housing unit. The results can be found in the baseline column of Table 2 below. DOE is proposing building type definitions based largely on the RECS glossary, with some minimal modifications for regulatory clarity. For example, the 2005 RECS data includes values for “manufactured homes” although the RECS glossary does not define “manufactured homes” but does define “mobile home.” DOE requests comment on the building type definitions.Show citation box

The baselines provided in Table 2 do not currently reflect any adjustment for climate-related variations in building energy use. As discussed elsewhere in this proposed rule, DOE believes a climate adjustment is necessary to provide reasonable baselines, and DOE is seeking comment on this issue. In a final rule, DOE intends to update the values provided in Table 2 for climate.Show citation box

When using Table 2, it is important to note a shortcoming of RECS data for use in performance standards for Federal buildings. The shortcoming is that RECS data is collected on a per household basis and does not include energy use in common areas. As a result, the value for fossil fuel-generated energy consumption per square foot of floorspace shown in Table 2 only accounts for the non-common areas of these buildings. DOE considered accounting for common area energy use in the requirements, but RECS does not collect that data. To resolve this issue, DOE proposes applying the RECS-derived fossil fuel requirements to all applicable floorspace, including common and non-common areas. The benefits of this approach are that it is relatively simple and will not make it more difficult for building designers to show compliance. Because common areas account for a small fraction of floorspace, the effect on the requirement will be minimal. Also, common areas often have a lower energy intensity, so by using only non-common areas the maximum allowable fossil fuel-generated energy requirement will, if anything, be slightly higher. DOE welcomes comments on this approach or other specific approaches that could be used to develop the RECS-derived requirements.Show citation box

Calculation of Maximum Allowable Fossil Fuel-Generated Energy Consumption

Once the baseline fossil fuel-generated energy consumption from the 2003 CBECS and 2005 RECS has been determined, the consumption reduction requirements as specified in ECPA as amended by EISA should be calculated. Again, although the baselines provided in Tables 1 and 2 do not currently reflect any adjustment for climate-related variations in building energy use, DOE is developing fossil fuel-generated energy requirements based on building type using CBECS or RECS data, and then applying a climate adjustment. In a final rule, DOE intends to update the values provided in Tables 1 and 2 for climate.Show citation box

The requirements derived from CBECS, which apply to commercial buildings, are shown in Table 1. The consumption reduction requirements derived from RECS, which apply to both multi-family high-rise residential buildings and low-rise residential buildings, are found in Table 2. In this rulemaking DOE is proposing a revised definition of “Multi-family high-rise residential building,” largely based on the definition at 10 CFR 434.201, although the proposed definition clarifies that multi-family high-rise residential buildings are designed to be four or more stories above grade.Show citation box

As discussed above, Tables 1 and 2 show data only at the national level, with national average values used for the fossil fuel generation ratio of 0.71. As discussed elsewhere in this rule, DOE is considering and invites comments on whether it should use a national or regional approach and average or marginal factors to estimate the fossil fuel consumption associated with electricity consumption.Show citation box

For purposes of simplification, values in these tables have been truncated to the nearest kBtu/ft [2] . In today’s notice, the fossil fuel-generated energy consumption percentage reductions are presented as maximum allowable fossil fuel-generated energy consumption levels. Because the figures are premised on the proposed baseline values, the percentage reductions equate to the absolute values which are presented as the maximum allowable values. For ease of agency interpretation, the maximum allowable approach was used in today’s notice. Show citation box

Table 1—2003 CBECS Fossil Fuel-Generated Energy Consumption Baseline and Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Type and Fiscal Year (FY), kBtu/ft 2 Back to Top
Building type Baseline(kBtu/ft2) FY 2012-2014 FY 2015-2019 FY 2020-2024 FY 2025-2029 FY 2030 and beyond
55%reduction (kBtu/ft2) 65%reduction (kBtu/ft2) 80%reduction (kBtu/ft2) 90%reduction (kBtu/ft2) 100%reduction (kBtu/ft2)
Education 126 57 44 25 13 0
Food Sales 387 174 135 77 39 0
Food Service 404 182 141 81 40 0
Health Care (Inpatient) 313 141 109 63 31 0
Health Care (Outpatient) 148 67 52 30 15 0
Lodging 148 67 52 30 15 0
Retail (Other Than Mall) 126 57 44 25 13 0
Office 160 72 56 32 16 0
Public Assembly 125 56 44 25 12 0
Public Order and Safety 146 66 51 29 15 0
Religious Worship 62 28 22 12 6 0
Service 113 51 40 23 11 0
Warehouse and Storage 66 30 23 13 7 0
Table 2—2005 RECS Fossil Fuel-Generated Energy Consumption Baseline and Maximum Allowable Fossil Fuel-Generated Energy Consumption by Type of High-Rise or Low-Rise Housing Unit, kBtu/ft 2 Back to Top
Building type Baseline(kBtu/ft2) FY 2012-2014 FY 2015-2019 FY 2020-2024 FY 2025-2029 FY 2030 and beyond
55%reduction (kBtu/ft2) 65%reduction (kBtu/ft2) 80%reduction (kBtu/ft2) 90%reduction (kBtu/ft2) 100%reduction (kBtu/ft2)
Single-Family Detached 59 27 21 12 6 0
Single-Family Attached 66 30 23 13 7 0
Multi-Family in 2-4 Unit Buildings 105 47 37 21 11 0
Multi-Family in 5 or More Unit Buildings 94 42 33 19 9 0
Manufactured Homes 115 52 40 23 12 0

DOE recognizes that the required reductions identified in the above tables for the years preceding FY 2030 may change based on how climate and fossil fuels are considered and characterized. However, the FY 2030 requirement for buildings to be designed such that the fossil fuel-generated energy consumption is zero would remain unchanged.Show citation box

Although ECPA as amended by EISA requires that new Federal buildings and Federal buildings undergoing major renovations be designed so that fossil fuel-generated energy consumption of the buildings is reduced as compared with such energy consumption by a similar building in fiscal year 2003 (as measured by CBECS and RECS), there are some building types for which no amount of processing of CBECS and RECS data will yield an appropriate baseline for comparison. Examples might include industrialized or research facilities. For purpose of determining the Maximum Allowable Fossil Fuel Energy Consumption for these buildings not addressed by CBECS or RECS, DOE proposes to use the ASHRAE’s Performance Rating Method to determine the baseline energy consumption for a new Federal commercial or multi-family high-rise residential building, and the IECC’s Simulated Performance Alternative to determine the baseline energy consumption for a new Federal low-rise residential building. DOE welcomes input on this approach.Show citation box

Calculation of Proposed Building Fossil Fuel-Generated Energy Consumption

To determine compliance, DOE is proposing that the fossil fuel-generated energy consumption of the proposed new Federal building or Federal building undergoing major renovation should be estimated using the Performance Rating Method found in Appendix G of ANSI/ASHRAE/IESNA Standard 90.1-2004 for commercial and multi-family high-rise residential buildings, and the ICC International Energy Conservation Code 2004 Supplement for low-rise residential buildings. These are the same methods already prescribed at 10 CFR parts 433 and 435, respectively. Because of the complexity involved in estimating fossil fuel-generated energy consumption, this compliance requirement effectively requires the use of a whole building simulation tool. Whole building simulations are already performed today for most medium- and large-sized buildings to accurately estimate loads for purposes of sizing HVAC equipment for evaluating buildings under voluntary industry building codes. The outputs from these tools typically include site energy usage for both electricity and fossil fuel.Show citation box

To compare the estimated fossil fuel-generated energy consumption from the whole-building simulation tool to the maximum allowable fossil fuel-generated energy consumption under the statute, the designer should first calculate the primary electrical energy by multiplying the site electrical energy (from the whole building simulation), including receptacle and process loads, by the electricity source energy factor. The designer then calculates the fossil fuel-generated electrical consumption by multiplying the primary electrical energy by the fossil fuel-generation ratio. Finally, the designer must then sum up the fossil fuel-generated electrical consumption and any non- electrical fossil fuels directly used in the proposed building (such as gas furnaces, gas cooking stoves, gas water heaters, etc.). The sum should be less than or equal to the required fossil fuel-generated energy consumption value for the appropriate building type.Show citation box

The electricity source energy factor is the ratio of primary electrical energy consumed to generate and deliver energy to a site to the electrical energy consumed on site. DOE is proposing that the electricity source energy factor would be calculated by dividing the average utility delivery ratio in Table 6.2.4 of the DOE Building Energy Data Book (http://buildingsdatabook.eren.doe.gov/docs/xls_pdf/6.2.4.xls) by 3412 to convert the value from Btu/kWh to kWh/kWh. The fossil fuel generation ratio would be calculated using the EIA’s latest Electric Power Annual report by summing the electric generation from coal, petroleum, natural gas, and other gases (derived from fossil fuels) and then dividing by the total electric generation.Show citation box

DOE notes that the simulation analysis requirement may be burdensome for designers of some buildings, particularly small buildings. DOE also acknowledges that the Advanced Energy Design Guides (AEDGs) have been completed for a few building types, including the most significant commercial building types and sizes, but the AEDGS are not designed to achieve the reduction levels necessary under this rule. DOE welcomes comments on alternatives to a whole building simulation to demonstrate compliance of these buildings with the requirements of this proposed rulemaking. DOE also welcomes comments on the calculations methods discussed in this section.Show citation box

Plug and Process Energy Consumption

EPACT 2005 as amended by EISA requires that building be designed so that the fossil fuel-generated energy consumption of the buildings is reduced as compared with such energy consumption by a similar building as measured by CBECS and RECS. All building energy consumption, including plug and process energy consumption, is included in baseline CBECS and RECS data, and thus is also factored into the maximum allowable fossil fuel-generated energy consumption. Therefore, it is necessary that plug and process loads also be included in the fossil fuel-generated energy consumption of the new Federal building or Federal building undergoing major renovations. This is consistent with Table G3.1.12 in Appendix G, Performance Rating Method, ASHRAE Standard 90.1-2004. DOE acknowledges the difficulty of estimating plug and process loads and that their inclusion may make it more difficult to achieve the mandated fossil fuel-generated energy consumption reductions. DOE welcomes comments on how the proposed rule can be designed such that the assumptions used in the whole building simulations accurately reflect, to the best degree possible, the final building design and the operation of the building, including plug and process loads.Show citation box

Purchase of Offsite Renewable Energy

In order to meet the maximum allowable fossil fuel-generated energy consumption requirements mandated by ECPA as amended by EISA, fossil fuel-generated energy consumption could be offset with use of energy created from other sources, including renewable energy sources. DOE also recognizes there may be physical limitations to the amount of on-site renewable electricity that can be produced, and it may be more affordable in some cases for an agency to purchase electricity from centralized renewable energy-generation facilities. As an example, ASHRAE Standard 189.1-2009, “The Standard for High-Performance Green Buildings,” has an on-site renewable energy requirement, but allows the use of Renewable Energy Certificates as an alternative to meet the requirement.Show citation box

DOE is concerned however, that purchase of renewable energy-generated electricity via Renewable Energy Certificates or direct Power Purchase Agreements may simply reduce the amount of renewable energy available for purchase by other entities within the U.S. and may not necessarily lead to an overall decrease in domestic fossil fuel-generated energy consumption. In addition, unlike Power Purchase Agreements, the purchase of Renewable Energy Certificates does not involve a long-term binding agreement and can readily be cancelled. It should also be noted that the use of Renewable Energy Certificates is being phased out by January 2012, as a way to meet the renewable energy consumption levels established under section 203 of EPACT 2005 and Executive Order 13423 (see“Renewable Energy Requirement Guidance for EPACT 2005 and Executive Order 13423,” available at: http://www1.eere.energy.gov/femp/pdfs/epact05_fedrenewenergyguid.pdf).Show citation box

DOE is leaning toward allowing Power Purchase Agreements with a long-term contract to count toward meeting the fossil fuel-generated energy consumption reduction requirements, but not allowing Renewable Energy Certificates. Under this approach, agencies would be allowed to subtract the annual electricity generated by the renewable energy-generation facility from the building’s annual site electrical energy consumption. The building designer would use this quantity, the net site electrical energy consumption, when calculating the building’s fossil fuel-generated energy consumption. In effect, the Power Purchase Agreements would help agencies meet the fossil fuel consumption requirements. DOE invites comments on how Renewable Energy Certificates and Power Purchase Agreements should be addressed in the context of this rulemaking. DOE also invites comments on the proposed approach with respect to Power Purchase Agreements.Show citation box

Potential Impact on Onsite Electrical Generation From Natural Gas

DOE is interested in the effect of fossil fuel-generated energy consumption reduction requirements on distributed energy technologies that provide onsite electrical generation from natural gas such as in power plants and combined heat and power (CHP) systems. At power plants and in CHP systems, natural gas is used to generate both heat and electricity. A building with a CHP system could potentially be an all-gas building in terms of utility purchases and would therefore be required to reduce natural gas consumption in accordance with the fossil fuel-generated energy consumption reduction requirements. DOE’s intent is to ensure the rule does not penalize or discourage the use of on-site CHP systems, and invites comments how appropriate credit may be given for CHP systems through the compliance determination methodology.Show citation box

E. Cost Analysis

Given the significant reductions in fossil fuel-generated energy consumption that would be required in today’s proposed rulemaking, one obvious question is how much will compliance with this proposed rule impact the cost of new Federal construction and major renovations. The answer to that question depends both on the building type and type of housing unit being constructed and the level of fossil fuel-generated energy consumption reduction that is required. DOE commissioned a study by Pacific Northwest National Laboratory in 2008 to look at the incremental costs of high performance buildings. Cost data for high performance buildings is fairly rare and many times the costs for achieving high levels of energy efficiency are intermingled with the costs to achieve more sustainable design. That report entitled, “Literature Review of Data on the Incremental Costs to Design and Build Low-Energy Buildings (Hunt, WD, 2008, PNNL-17502 and available at http://www.pnl.gov/main/publications/external/technical_reports/PNNL-17502.pdf) came to the following key findings as noted in the summary of the document:Show citation box

Key findings of this literature review are as follows:Show citation box

1. Objectively-developed and verifiable data on the cost premium for low-energy (high efficiency) buildings are very limited. Most of the literature focused on green or sustainable buildings, not on low-energy buildings.Show citation box

2. In cases where energy efficiency cost data were available, the cost premiums ranged from 1% to 7%. In most cases, the cost premium was less than 4%.Show citation box

3. Technology solutions are available right now to achieve savings on the order of 30% and more over ASHRAE Standard 90.1-2004; however, cost-effectiveness of these technology solutions is often not addressed.Show citation box

4. Independent surveys administered to assess the perceptions of building owners and designers regarding the costs to build and operate green/energy-efficient buildings, and the willingness of owners/developers to invest in green/energy-efficient buildings, reveal some interesting common threads.Show citation box

i. There is a perception that energy-efficient/green buildings cost significantly more to design (starting at a 5% premium) and represent a key barrier with decision makers.Show citation box

ii. There seems to be a potential willingness (as implied or measured through survey responses) to build more energy-efficient buildings for cost premiums below 5%.Show citation box

In response to the third key finding listed in the report, DOE began calculating cost impacts for their work associated with AEDGs. Cost impact data are available in the technical support document (TSD) of one published ASHRAE AEDG for small warehouses that are 30% better than Standard 90.1-2004 and four TSDs prepared by DOE for support of future AEDGs that will achieve 50% savings over Standard 90.1-2004. The four TSDs are for medium offices, roadside lodging, general retail, and grocery stores. DOE expects to develop six additional TSDs for small offices, large offices, quick service restaurants, large hospitals, university dormitories, and K-12 schools in FY10. These additional TSDs were not available at the time this notice was prepared.Show citation box

The available TSDs may be found at: Small Warehouse (30% savings)—http://www.pnl.gov/main/publications/external/technical_reports/PNNL-17056.pdf. General Merchandise (50% savings)—http://www.nrel.gov/docs/fy09osti/46100.pdf. Grocery Stores (50% savings)—http://www.nrel.gov/docs/fy09osti/46101.pdf. Highway Lodging Buildings (50% savings)—http://www.pnl.gov/main/publications/external/technical_reports/PNNL-18773.pdf. Medium Office (50% savings)—http://www.pnl.gov/main/publications/external/technical_reports/PNNL-19004.pdf.Show citation box

Results from the cost analyses in three of these TSDs—small warehouse, highway lodging, and medium office—are shown below in Table 3. Ranges in the results are a function of climate zone, with buildings in some climates zones costing more or generating less energy savings. Multiple HVAC systems were evaluated for the 50% medium office—a more efficient but more expensive radiant system and a more standard variable air volume (VAV) system. It should be noted that all of the buildings analyzed for the TSDs did have increased first costs, but that the energy savings provided relatively good payback periods.Show citation box

Table 3—Cost Effectiveness Analysis of Highly Energy Efficient Buildings Back to Top
TSD Building square footage Incremental cost ($ per ft2) Incremental cost (percentage increase) Simple payback on energy savings (years)
Warehouse 50,000 ft2 1.88 to 3.56 2.6% to 7% 6.0 to 13.5.
Highway Lodging 43,000 ft2 7.58 to 10.85 8.4% to 8.7% 9.6 to 15.9.
Medium Office 53,600 ft2 5.47 to 9.03 (Radiant) 2.37 to 4.22 (VAV) 5.4% to 7.0% (Radiant) 2.7% to 3.9% (VAV) 5.6 to 11.1 (Radiant) 3.3 to 6.2 (VAV).

Consideration of the graduated levels of fossil fuel-generated energy consumption reduction listed in the statute (55%, 65%, 80%, 90%, and 100%), coupled with the fact that a percentage reduction is not directly comparable to a 30% or 50% savings over ASHRAE Standard 90.1-2004, makes it hard to determine what level of savings is associated with the 1% to 7% cost premiums cited in the PNNL study (“Literature Review of Data on the Incremental Costs to Design and Build Low-Energy Buildings,” Hunt, WD, 2008, PNNL-17502). Converting both the requirements of this proposed rulemaking and the simulated performance of buildings built to 30% better than ASHRAE Standard 90.1-2004 to a common Energy Use Intensity basis provides a better method of comparison. Also note that the comparison must be made on a similar energy basis. Today’s proposed rulemaking applies to fossil fuel-generated energy consumption, which is close to source energy, while results from the TSDs are typically expressed in site energy.Show citation box

Table 4 shows the comparison of the fossil fuel-generated energy consumption reductions proposed in this rulemaking to the fossil fuel reductions achieved in the simulations associated with two of the TSDs, the medium office and highway lodging.Show citation box

Table 4—Fossil Fuel-Generated Energy Consumption Proposed in Today’s Rulemaking and Calculated in Selected AEDGs Back to Top
Building type 55% Fossil fuel reduction from CBECS kBtu/ft2 65% Fossil fuel reduction from CBECS kBtu/ft2 80% Fossil fuel reduction from CBECS kBtu/ft2 Fossil fuelreduction calculated in TSD kBtu/ft2 Incremental cost(percentage increase)
Medium Office (Rad) 72 56 32 49.2 5.4% to 7.0%.
Medium Office (VAV) 72 56 32 63.6 2.7% to 3.9%.
Highway Lodging 67 52 30 56.4 8.4% to 8.7%.

Table 4 indicates that the estimated cost savings from the 50% TSDs can be used to support the fact that 55% fossil fuel-generated energy consumption reductions and perhaps even 65% fossil fuel-generated energy consumption reductions from CBECS will require cost increases of no more than 8.7%. None of the savings achieved in the 50% TSDs approach the reduction mandated at the 80% fossil fuel-generated energy consumption reduction level, so the cost estimates for that level of savings and higher levels cannot be estimated.Show citation box

With respect to residential buildings, DOE does not anticipate that there will be many low-rise residential buildings that will fall under today’s proposed rulemaking as most Federal low-rise residential buildings are not likely to be public buildings or buildings for which construction costs are at least $2.5 million in 2007 dollars, which are criteria that determine whether buildings are subject to the requirements in today’s proposed rule. The only low-rise residential buildings that might be considered to fall under today’s proposed rule would be low-rise military barracks, and those barracks are best considered to be similar to the dormitory or lodging building types found in CBECS.Show citation box

Using CBECS and RECS baselines without a climate adjustment puts buildings in colder climate zones at a cost disadvantage because the non-adjusted baseline would be lower than for one adjusted for climate. A non-adjusted baseline for colder climates would require larger, more costly fossil fuel-generated energy consumption reductions. Conversely, using CBECS and RECS baselines without a climate adjustment provides a cost advantage to buildings in warmer climate zones because the baseline would be greater than for one adjusted for climate. A non-adjusted baseline for warmer climates would require smaller, less costly fossil fuel-generated energy consumption reductions.Show citation box

However, adjusting for climate in both the baseline and the required reduction level would be expected to eliminate potential regional inequity that could result from climate variation and help ensure that the fossil fuel-generated energy consumption reductions are commensurate to the climate zone. Similarly, consideration of regional variations in the fossil fuel contribution to electricity is not expected to result in substantial differences in the compliance burden for buildings across regions so long as regional variations are also reflected in the baseline buildings. If the regional values were used for both the baseline building and the required reduction level, the burden of meeting the percentage reductions would remain roughly the same in all regions (although regions with low fossil fuel use in the electric sector might have to find more savings in non-electric end-uses).Show citation box

DOE is seeking comment on a number of issues related to the cost-effectiveness of today’s proposed rule, especially any construction cost increases for buildings Federal agencies are in the process of designing or have already built. DOE is seeking comment on these cost impacts.Show citation box

F. Agency Petitions for Adjustment to the Percentage Reduction Requirement

ECPA as amended by EISA permits DOE upon petition by an agency subject to the statutory requirements to adjust the applicable numeric fossil fuel-generated energy consumption percentage reduction requirement “downward with respect to a specific building, if the head of the agency designing the building certifies in writing that meeting such requirement would be technically impracticable in light of the agency’s specified functional needs for the building” and DOE concurs with the agency’s conclusion. (42 U.S.C. 6834(a)(3)(D)(i)(II)) ECPA as amended by EISA further directs that such an adjustment does not apply to GSA.Show citation box

Today’s action proposes that a petition for downward adjustment of the numeric requirement should include an explanation of what measures would be required to meet the fossil fuel-generated energy consumption reduction requirement, and why those measures would be technically impracticable in light of the agency’s specified functional needs for the building. DOE proposes that the petition should also demonstrate that the adjustment requested by the agency represents the largest feasible reduction in fossil fuel-generated energy consumption that can reasonably be achieved. DOE welcomes comments on that proposal. Although the downward adjustment provision of ECPA as amended by EISA does not expressly include cost considerations, DOE is considering incorporating cost considerations as part of a “technically impracticable” determination. Cost would not be the sole rationale for a determination of “technically impracticable,” but high costs could be part of the evaluation. (42 U.S.C. 6834(a)(3)(D)). DOE also invites comments that would help clarify what kind of technical impracticability would constitute grounds for a petition for downward adjustment.Show citation box

The petition pursuant to ECPA as amended by EISA should also include a written certification statement by the head of the agency designing the building that meeting the fossil fuel-generated energy consumption reduction requirements would be technically impracticable in light of the agency’s specified functional needs for that building. 42 U.S.C. 6834(D)(i)(II).Show citation box

DOE notes that the statute exempts GSA from the option to petition DOE for a downward adjustment of the applicable percentage reduction requirement. However, DOE proposes that a new Federal building or a Federal building undergoing major renovations for which a Federal agency is providing substantive and significant design criteria may be the subject of a petition. Under this approach, a GSA building that is designed to meet the specifications provided by a tenant agency may be considered for a downward adjustment if a petition is submitted by the head of the tenant agency.Show citation box

DOE will review petitions in a timely manner. If the petitioning agency has successfully demonstrated the need for a downward adjustment per the discussion above, DOE will concur with the agency’s conclusion and notify the agency in writing. If DOE does not concur, it will forward its reasons to the petitioning agency with suggestions as to how the fossil fuel-generated energy consumption percentage reduction requirement may be achieved.Show citation box

A petition for downward adjustment of the numeric reduction, including any supporting information, would be addressed to: Margo Appel, Building Technologies Program, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585.Show citation box

G. Guidance on Measures To Reduce Fossil Fuel-Generated Energy Consumption

Building energy efficiency solutions involve advanced technologies, integrated design principles, control strategies and other tools. The appropriate solution and the effectiveness of each solution will vary based on building type, building size, and location. To successfully design a high performance building, Federal agencies must use a reputable, experienced design team. There are an increasing number of firms in all locations that have designed high performance buildings. The key to successful design is identifying firms with the requisite experience and skills, adopting an integrated design process that begins at the first phase of the building project, and providing clear direction and quality control over the firm’s work. DOE invites comment from agencies as to what additional training in this area might be helpful.Show citation box

Numerous tools are available to help Federal agencies achieve the required fossil fuel reductions. DOE, in conjunction with ASHRAE, has developed a series of Advanced Energy Design Guides to achieve 30 percent reductions in energy use for several types of small buildings (small office buildings, small retail buildings, K-12 school buildings, small warehouses and self-storage buildings, highway lodging, and small hospitals and healthcare facilities). DOE and ASHRAE are working on 50 percent reduction guidelines for several building types. Additional tools and resources are available through the EERE Web site. DOE’s Building Technologies Program maintains a database of high-performance buildings (available at http://eere.buildinggreen.com).Show citation box

Other resources include: The National Institute of Building Sciences’Whole Building Design Guide; the U.S. Green Building Council’s Leadership in Energy and Environmental Design (LEED) system; ASHRAE Standard 189.1-2009, Standard for the Design of High Performance Green Buildings Except Low-Rise Residential Buildings; and the International Code Council’s International Green Construction Code Public Version 1.0. DOE’s Federal Energy Management Program (FEMP) Web site provides access to these and other resources and tools that can help Federal agencies improve the energy efficiency of new and existing buildings (available at http://www1.eere.energy.gov/femp/). DOE has also published a cool roof resource guide for Federal agencies, available at http://www1.eere.energy.gov/femp/features/cool_roof_resources.html. DOE is also developing additional guidance that provides technical and cost data related to the installation of cool roofs.Show citation box

H. Post-Construction Monitoring and Reporting

ECPA as amended by EISA does not contain any explicit post-construction monitoring and reporting requirements. Federal agencies, however, are reminded of the monitoring, reporting, and benchmarking requirements in section 103 of the Energy Policy Act of 2005 (EPAct 2005) and section 432 of EISA. FEMP has issued guidance for the metering requirements in section 103 of EPAct 2005 (available at http://www1.eere.energy.gov/femp/pdfs/adv_metering.pdf). FEMP has also developed guidance for meeting EISA section 432 requirements (available at http://www1.eere.energy.gov/femp/pdfs/eisa_s432_guidelines.pdf). Finally, FEMP has also issued additional guidance on EISA section 432 benchmarking (available at http://www.eere.energy.gov/femp/pdfs/eisa_s432_guidelines.pdf).Show citation box

FEMP has selected the Energy Star Portfolio Manager as the required building energy use benchmarking system for Federal agencies. Additional information on the use of Energy Star Portfolio Manager, energy management, and benchmarking in general may be found on the EPA Energy Star Web site at http://www.energystar.gov/index.cfm?c=business.bus_index. Show citation box

III. Reference Resources Back to Top

DOE has prepared a list of resources to help Federal agencies address the reduction of fossil fuel-generated energy consumption. The interim final rule on energy efficiency published in the Federal Register on December 4, 2006 (71 FR 70275) contains reference resources for energy efficiency improvement in building design. These resources come in many forms such as design guidance, case studies and in a variety of media such as printed documents or on Web sites. The resources for energy efficiency improvement will also provide guidance for fossil fuel-based energy consumption reduction.Show citation box

IV. Regulatory Review Back to Top

A. Review Under Executive Order 12866

Today’s notice of proposed rulemaking has been determined to be a significant regulatory action under section 3(f)(1) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, today’s action was reviewed by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).Show citation box

B. Review Under the Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of General Counsel’s Web site: http://www.gc.doe.gov. Show citation box

DOE has reviewed today’s proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. Today’s proposed rulemaking applies only to the fossil fuel-generated energy consumption of new Federal buildings and Federal buildings undergoing major renovation. As such, the only entities impacted by this rulemaking would be Federal agencies. DOE does not believe that there will be any impacts on small entities such as small businesses, small organizations, or small governmental jurisdictions.Show citation box

On the basis of the foregoing, DOE certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE’s certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b).Show citation box

C. Review Under the Paperwork Reduction Act of 1995

This proposed rule will impose no new information or record keeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et seq.)Show citation box

D. Review Under the National Environmental Policy Act

The Department prepared a draft Environmental Assessment (EA) (DOE/EA-1463) pursuant to the Council on Environmental Quality’s (CEQ) Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act (40 CFR parts 1500-1508), the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), and DOE’s NEPA Implementing Procedures (10 CFR part 1021).Show citation box

The draft EA addresses the potential incremental environmental effects attributable to the application of the proposed rules. The draft EA has been added to the docket for this rulemaking.Show citation box

E. Review Under Executive Order 13132

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined the proposed rule and determined that it would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of Government. No further action is required by Executive Order 13132.Show citation box

F. Review Under Executive Order 12988

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct, rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.Show citation box

G. Review Under the Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and Tribal governments. For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a) and (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA (62 FR 12820) (also available at http://www.gc.doe.gov). This notice of proposed rulemaking contains neither an intergovernmental mandate nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements under the Unfunded Mandates Reform Act do not apply.Show citation box

H. Review Under the Treasury and General Government Appropriations Act, 1999

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well-being. This proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.Show citation box

I. Review Under Executive Order 12630

DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this notice of proposed rulemaking would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution.Show citation box

J. Review Under the Treasury and General Government Appropriations Act, 2001

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB’s guidelines were published at 67 FR 8452 (February 22, 2002), and DOE’s guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today’s proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.Show citation box

K. Review Under Executive Order 13211

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today’s proposed rule would not have a significant adverse effect on the supply, distribution, or use of energy and, therefore, is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.Show citation box

V. Approval of the Office of the Secretary Back to Top

The Secretary of Energy has approved publication of today’s notice of proposed rulemaking.Show citation box

List of Subjects in 10 CFR Parts 433 and 435 Back to Top

Buildings and facilities, Energy conservation, Engineers, Federal buildings and facilities, Housing.Show citation box

Issued in Washington, DC, on September 30, 2010.

Cathy Zoi,

Assistant Secretary, Energy Efficiency and Renewable Energy.

For the reasons set forth in the preamble, DOE proposes to amend chapter II of title 10 of the Code of Federal Regulations as set forth below:Show citation box

PART 433—ENERGY EFFICIENCY AND FOSSIL FUEL-GENERATED ENERGY CONSUMPTION REDUCTION DESIGN STANDARDS FOR NEW AND MAJOR RENOVATIONS TO FEDERAL COMMERCIAL AND MULTI-FAMILY HIGH-RISE RESIDENTIAL BUILDINGS Back to Top

1. The authority citation for part 433 continues to read as follows:Show citation box

Authority: Back to Top

42 U.S.C. 6831-6832, 6834-6835; 42 U.S.C. 7101 et seq. Show citation box

2. The heading for part 433 is revised to read as set forth above.Show citation box

3. Section 433.1 is revised to read as follows:Show citation box

§ 433.1 Purpose and scope.

This part establishes an energy efficiency performance and maximum allowable fossil fuel-generated energy consumption standard for new Federal commercial and multi-family high-rise residential buildings, for which design for construction began on or after January 3, 2007 (except as otherwise indicated: fossil fuel-generated energy consumption requirements are applicable one year after publication of the final rule), as required by section 305(a) of the Energy Conservation and Production Act, as amended (42 U.S.C. 6834(a)). Additionally, this part establishes certain requirements applicable to major renovations of Federal commercial and multi-family high-rise residential buildings, as indicated. For renovated buildings, those requirements apply only to the portions of the building or building systems that are being renovated and to the extent that the scope of the renovation permits compliance with the applicable requirements in this part. Unaltered portions of the building or building systems are not required to comply with this part.Show citation box

4. Section 433.2 is amended by adding in alphabetical order new definitions for “Direct fossil fuel consumption,” “District Energy System,” “Electricity fossil fuel-generation ratio,” “Electricity source energy factor,” “Fossil fuel,” “Fossil fuel consumption for electricity generation,” “Fossil fuel-generated energy consumption,” “Multi-family high-rise residential building,” and “Primary electrical energy consumption” to read as follows:Show citation box

§ 433.2 Definitions.

* * * * *

Direct fossil fuel consumption means the total fossil fuel consumption in a building excluding fossil fuel consumption for electricity generation. This includes any fossil fuel consumption resulting from a district energy system used in a building.Show citation box

District Energy System means a central energy conversion plant and transmission and distribution system that provides thermal energy to a group of buildings (heating via hot water or steam, and/or cooling via chilled water). This definition includes only thermal energy systems; central energy supply systems that provide only electricity are excluded from this definition.Show citation box

* * * * *

Electricity fossil fuel-generation ratio means the fraction of national U.S. electricity generation from fossil fuel sources as provided by the Energy Information Administration Electric Power Annual report for the appropriate year.Show citation box

Electricity source energy factor is the ratio of primary electrical energy consumed to generate and deliver energy to a site relative to electrical energy consumed on site. The electricity source energy factor may be calculated by dividing the average utility delivery ratio in Table 6.2.4 of the DOE Building Energy Data Book for the appropriate year by 3412 to convert the value from Btu/kWh to kWh/kWh.Show citation box

* * * * *

Fossil fuel means a fuel formed in the earth from plant or animal remains. Fossil fuels include coal, oil, natural gas, kerosene, and liquefied petroleum gas (LPG).Show citation box

Fossil fuel consumption for electricity generation means the primary electrical energy consumption in a building supplied from the national power grid multiplied by the electricity fossil fuel-generation ratio. Electricity generated completely from non-fossil fuel sources or from a dedicated source not connected to the national power grid is excluded from this definition.Show citation box

Fossil fuel generated-energy consumption means the sum of direct fossil fuel consumption plus fossil fuel consumption for electricity generation.Show citation box

* * * * *

Multi-family high-rise residential building means a residential building that contains three or more dwelling units and that is designed to be 4 or more stories above grade.Show citation box

* * * * *

Primary electrical energy consumption means the total amount of energy used to generate and deliver electrical energy to a building from the national power grid.Show citation box

* * * * *

5. Section 433.4 is amended by adding new paragraphs (d), (e), and (f) to read as follows:Show citation box

§ 433.4 Energy efficiency performance standard.

* * * * *

(d) All Federal agencies shall design new Federal commercial and multi-family high-rise residential buildings and major renovations to Federal commercial and multi-family high-rise residential buildings, for which design for construction began at least one year after publication of the final rule, to meet the requirements of paragraph (e) of this section if:Show citation box

(1) The subject building is a public building as defined in 40 U.S.C. 3301 and for which transmittal of a prospectus to Congress is required under 40 U.S.C. 3307; orShow citation box

(2) The cost of the building or major renovation is at least $2,500,000 (in 2007 dollars, adjusted for inflation).Show citation box

(e)(1) All Federal agencies shall design new Federal commercial and multi-family high-rise residential buildings and major renovations of Federal commercial and multi-family high-rise residential buildings for which design for construction began at least one year after publication of the final rule and that are classified in paragraph (d) of this section, to meet fossil fuel-generated energy consumption values equal to or lesser than the values shown in Table 1. The maximum allowable fossil fuel generated energy consumption values in Table 1 are a function of building type and fiscal year for which design for construction began.Show citation box

(2) For the purpose of this paragraph (e), the following definitions apply:Show citation box

(i) Education means buildings used for academic or technical classroom instruction, such as elementary, middle, or high schools, and classroom buildings on college or university campuses. Buildings on education campuses for which the main use is not classroom are included in the category relating to their use. For example, administration buildings are part of “Office,” dormitories are “Lodging,” and libraries are “Public Assembly.”Show citation box

(ii) Food sales means buildings used for retail or wholesale of food. For example, grocery stores are “Food Sales.”Show citation box

(iii) Food service means buildings used for preparation and sale of food and beverages for consumption. For example, restaurants are “Food Service.” Show citation box

(iv) Health care (inpatient) means buildings used as diagnostic and treatment facilities for inpatient care.Show citation box

(v) Health care (outpatient) means buildings used as diagnostic and treatment facilities for outpatient care. Medical offices are included here if they use any type of diagnostic medical equipment (if they do not, they are categorized as an office building).Show citation box

(vi) Lodging means buildings used to offer multiple accommodations for short-term or long-term residents, including skilled nursing and other residential care buildings.Show citation box

(vii) Multi-family in 2-4 unit buildings means a unit in a building with two to four housing units—a structure that is divided into living quarters for two, three, or four families or households in which one household lives above or beside another. This category also includes houses originally intended for occupancy by one family (or for some other use) that have since been converted to separate dwellings for two to four families.Show citation box

(viii) Multi-family in 5 or more unit buildings means a unit in a building with five or more housing units—a structure that contains living quarters for five or more households or families and in which one household lives above or beside another.Show citation box

(ix) Public assembly means public or private buildings, or spaces therein, in which people gather for social or recreational activities.Show citation box

(x) Public order and safety means buildings used for the preservation of law and order or public safety.Show citation box

(xi) Religious worship means buildings in which people gather for religious activities, (such as chapels, churches, mosques, synagogues, and temples).Show citation box

(xii) Retail (other than mall) means buildings used for the sale and display of goods other than food.Show citation box

(xiii) Service means buildings in which some type of service is provided, other than food service or retail sales of goods.Show citation box

(xiv) Warehouse and storage means buildings used to store goods, manufactured products, merchandise, raw materials, or personal belongings (such as self-storage).Show citation box

Table 1—Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Type, Commercial Buildings, kBtu/ft 2 Back to Top
Building type kBtu/ft2by fiscal year for which design for construction began
FY 2012-2014 FY 2015-2019 FY 2020-2024 FY 2025-2029 FY 2030 and beyond
Education 57 44 25 13 0
Food Sales 174 135 77 39 0
Food Service 182 141 81 40 0
Health Care (Inpatient) 141 109 63 31 0
Health Care (Outpatient) 67 52 30 15 0
Lodging 67 52 30 15 0
Retail (Other Than Mall) 57 44 25 13 0
Office 72 56 32 16 0
Public Assembly 56 44 25 12 0
Public Order and Safety 66 51 29 15 0
Religious Worship 28 22 12 6 0
Service 51 40 23 11 0
Warehouse and Storage 30 23 13 7 0

(3) For multi-family high-rise residential buildings, the maximum allowable fossil fuel-generated energy consumption in kBtu per ft [2] is listed in Table 2.Show citation box

Table 2—Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Type, Multi-Family High-Rise Residential Buildings, kBtu/ft 2 Back to Top
Building type kBtu/ft2by fiscal year for which design for construction began
FY 2012-2014 FY 2015-2019 FY 2020-2024 FY 2025-2029 FY 2030 and beyond
Multi-Family in 2-4 Unit Buildings 47 37 21 11 0
Multi-Family in 5 or More Unit Buildings 42 33 19 9 0

(4) For buildings that combine one or more building types within or between Tables 1 and 2, area-weighted fossil fuel-generated energy consumption may be calculated by multiplying the floor area of each building type by the consumption value from the appropriate table for that building type, then dividing by the total floor area of the combined building types.Show citation box

(5) For Federal buildings that do not fit into any of the building type categories listed in Table 1 or Table 2 of § 433.4, a baseline fossil fuel-generated energy consumption shall be calculated using the Performance Rating Method, Appendix G of ASHRAE Standard 90.1-2004, as outlined in § 433.5. The maximum allowable fossil fuel-generated energy consumption for the proposed design shall be calculated by using the following formula:Show citation box

Maximum Allowable Fossil Fuel-Generated Energy Consumption = ((Baseline Design Electricity Consumption × Electricity Source Energy Factor × Electricity Fossil Fuel-Generation Ratio) + Baseline Design Direct Fossil Fuel Consumption) × Fossil Fuel Reduction MultiplierShow citation box

(6) The fossil fuel reduction multiplier in the formula above shall be taken from Table 3.Show citation box

Table 3—Fossil Fuel Reduction Multiplier by Fiscal Year for Which Design for Construction Began Back to Top
Fiscal year Reduction multiplier
2012-2014 0.45
2015-2019 0.35
2020-2024 0.20
2025-2029 0.10
2030 and beyond 0.00

(7) All building energy usage, including estimated receptacle and plug loads, must be included in the calculation in Table 3 of this section.Show citation box

(f)(1) Upon petition by an agency subject to this section, the Secretary may adjust the applicable numeric requirement in paragraph (e) of this section with respect to a specific building if:Show citation box

(i) The head of the agency designing the building certifies in writing that meeting such requirement would be technically impracticable in light of the agency’s specified functional needs for that building;Show citation box

(ii) The head of the agency designing the building demonstrates that the requested adjustment is the largest feasible reduction in fossil fuel-generated consumption that can reasonably be achieved; andShow citation box

(iii) The Secretary concurs with the agency’s conclusion.Show citation box

(2) This adjustment shall not apply to the General Services Administration.Show citation box

6. Section 433.5 is revised to read as follows:Show citation box

§ 433.5 Performance level determination.

(a) For new Federal commercial and multi-family high-rise residential buildings whose design for construction began on or after January 3, 2007, each Federal agency shall determine energy consumption levels for both the baseline and proposed building by using the Performance Rating Method found in Appendix G of ANSI/ASHRAE/IESNA Standard 90.1-2004, (incorporated by reference; see§ 433.3), except the formula for calculating the Performance Rating in paragraph G1.2 shall read as follows:Show citation box

Percentage improvement = 100 × (Baseline building consumption−Proposed building consumption)/(Baseline building consumption−Receptacle and process loads)Show citation box

(b) Each Federal agency shall consider laboratory fume hoods and kitchen ventilation systems as part of the ASHRAE-covered HVAC loads subject to the 30 percent savings requirements in this section, rather than as process loads.Show citation box

(c) Subject to § 433.4(d), each Federal agency shall calculate the fossil fuel-generated energy consumption of a proposed design by the following formula:Show citation box

Proposed Design Fossil Fuel-Generated Energy Consumption = (Proposed Design Electricity Consumption × Electricity Source Energy Factor × Electricity Fossil Fuel-Generation Ratio) + Direct Fossil Fuel Consumption of Proposed DesignShow citation box

(d) Subject to § 433.4(d), if the fossil fuel-generated energy consumption of the proposed design is equal to or less than the applicable maximum allowable fossil fuel-generated energy consumption value in § 433.4(e), the proposed design complies with the fossil fuel-generated consumption reduction requirement in § 433.4. If the fossil fuel-generated energy consumption of the proposed design is greater than the applicable maximum allowable fossil fuel-generated energy consumption value in § 433.4(e), the proposed design does not comply with the fossil fuel-generated energy consumption reduction requirement in § 433.4, and the agency must either modify the design until the design complies with the requirement, or request and receive approval from the Secretary for a downward adjustment of the requirement.Show citation box

PART 435—ENERGY EFFICIENCY AND FOSSIL FUEL-GENERATED ENERGY CONSUMPTION REDUCTION DESIGN STANDARDS FOR NEW AND MAJOR RENOVATIONS TO FEDERAL LOW-RISE RESIDENTIAL BUILDNGS Back to Top

7. The authority citation for part 435 continues to read as follows:Show citation box

Authority: Back to Top

42 U.S.C. 6831-6832; 6834-6836; 42 U.S.C. 8253-54; 42 U.S.C. 7101 et seq. Show citation box

Subpart A—Mandatory Energy Efficiency and Fossil Fuel-Generated Energy Consumption Reduction Design Standards for Federal Low-Rise Residential Buildings Back to Top

8. The headings for part 435 and subpart A are revised to read as set forth above.Show citation box

9. Section 435.1 is revised to read as follows:Show citation box

§ 435.1 Purpose and scope.

This part establishes an energy efficiency performance and maximum allowable fossil fuel-generated energy consumption standard for new Federal low-rise residential buildings, for which design for construction began on or after January 3, 2007 (except as otherwise indicated: fossil fuel-generated energy requirements are applicable one year after publication of the final rule, as required by section 305(a) of the Energy Conservation and Production Act, as amended (42 U.S.C. 6834(a)). Additionally, this part establishes certain requirements applicable to major renovations of Federal low-rise buildings, as indicated. For renovated buildings, those requirements apply only to the portions of the building or building systems that are being renovated and to the extent that the scope of the renovation permits compliance with the applicable requirements in this rule. Unaltered portions of the building or building systems are not required to comply with this rule.Show citation box

10. Section 435.2 is amended by adding in alphabetical order new definitions for “Direct fossil fuel consumption,” “District Energy System,” “Electricity fossil fuel-generation ratio,” “Electricity source energy factor,” “Fossil fuel,” “Fossil fuel consumption for electricity generation,” “Fossil fuel-generated energy consumption,” and “Primary electrical energy consumption” to read as follows:Show citation box

§ 435.2 Definitions.

* * * * *

Direct fossil fuel consumption means the total fossil fuel consumption in a building excluding primary electrical energy consumption. This includes any fossil fuel consumption resulting from a district energy system used in a building.Show citation box

District Energy System means a central energy conversion plant and transmission and distribution system that provides thermal energy to a group of buildings (heating via hot water or steam, and/or cooling via chilled water). This definition includes only thermal energy systems; central energy supply systems that provide only electricity are excluded from this definition.Show citation box

* * * * *

Electricity fossil fuel-generation ratio means the fraction of national U.S. electricity generation from fossil fuel as provided by the Energy Information Administration Electric Power report for the appropriate year.Show citation box

Electricity source energy factor is the ratio of primary electrical energy consumed to generate and deliver energy to a site to the electrical energy consumed on site. Electricity source energy factor may be calculated by dividing the average utility delivery ratio in Table 6.2.4 of the DOE Building Energy Data Book for the appropriate year by 3412 to convert the value from Btu/kWh to kWh/kWh.Show citation box

* * * * *

Fossil fuel means a fuel formed in the earth from plant or animal remains. Fossil fuels include coal, oil, natural gas, kerosene, and liquefied petroleum gas (LPG).Show citation box

Fossil fuel consumption for electricity generation means the primary electrical energy consumption in a building supplied from the national power grid multiplied by the electricity fossil fuel-generation ratio. Electricity generated completely from non-fossil fuel sources or from a dedicated source not connected to the national power grid is excluded from this definition.Show citation box

Fossil fuel-generated energy consumption means the sum of direct fossil fuel consumption plus fossil fuel consumption for electricity generation.Show citation box

* * * * *

Primary electrical energy consumption means the total amount of energy used to generate and deliver electrical energy to a building from the national power grid.Show citation box

* * * * *

11. Section 435.4 is amended by adding new paragraphs (d), (e), and (f) to read as follows:Show citation box

§ 435.4 Energy efficiency performance standard.

* * * * *

(d) All Federal agencies shall design new Federal low-rise residential buildings and major renovations to Federal low-rise residential buildings, for which design for construction began at least one year after publication of the final rule, to meet the requirements of paragraph (e) of this section if:Show citation box

(1) The subject building is a public building as defined in 40 U.S.C. 3301 and for which transmittal of a prospectus to Congress is required under 40 U.S.C. 3307; orShow citation box

(2) The cost of the building or major renovation is at least $2,500,000 (in 2007 dollars, adjusted for inflation).Show citation box

(e)(1) All Federal agencies shall design new Federal low-rise residential buildings or major renovations of Federal low-rise residential buildings for which design for renovation began at least one year after publication of the final rule and that are classified in paragraph (d) of this section, to meet fossil fuel-generated energy consumption values equal to or lesser than the values shown in Table 1. The maximum allowable fossil fuel-generated energy consumption values in Table 1 area function of housing type and fiscal year for which design for construction began.Show citation box

(2) For the purpose of this paragraph (e), the following definitions apply:Show citation box

(i) Manufactured home means a housing unit built to the Federal Manufactured Home Construction and Safety Standards in 24 CFR part 3280, that is built on a permanent chassis and moved to a site. It may be placed on a permanent or temporary foundation and may contain one or more rooms.Show citation box

(ii) Multi-family in 2-4 unit buildings means a unit in a building with two to four housing units—a structure that is divided into living quarters for two, three, or four families or households in which one household lives above or beside another. This category also includes houses originally intended for occupancy by one family (or for some other use) that have since been converted to separate dwellings for two to four families. This includes modular homes but does not include manufactured homes.Show citation box

(iii) Multi-family in 5 or more unit buildings means a unit in a building with five or more housing units—a structure that contains living quarters for five or more households or families and in which one household lives above or beside another. This includes modular homes but does not include manufactured homes.Show citation box

(iv) Single-family attached means a housing unit connected to another housing unit, generally with a shared wall, that provides living space for one household or family. Attached houses are considered single-family houses as long as they are not divided into more than one housing unit and they have an independent outside entrance. A single-family house is contained within walls extending from the basement (or the ground floor, if there is no basement) to the roof. Townhouses, rowhouses, and duplexes are considered single-family attached housing units, as long as there is no household living above another one within the walls extending from the basement to the roof to separate the units. This includes modular homes but does not include manufactured homes.Show citation box

(v) Single-family detached means a separate, unconnected housing unit, not sharing a wall with any other building or housing unit, that provides living space for one household or family. A single-family house is contained within walls extending from the basement (or the ground floor, if there is no basement) to the roof. This includes modular homes but does not include manufactured homes.Show citation box

Table 1—Maximum Allowable Fossil Fuel-Generated Energy Consumption by Building Type, Low-Rise Residential Buildings, kBtu/ft 2 Back to Top
Building type kBtu/ft2by Fiscal year for which design for construction began
FY 2012-2014 FY 2015-2019 FY 2020-2024 FY 2025-2029 FY2030 and beyond
Single-Family Detached 27 21 12 6 0
Single-Family Attached 30 23 13 7 0
Multi-Family in 2-4 Unit Buildings 47 37 21 11 0
Multi-Family in 5 or More Unit Buildings 42 33 19 9 0
Manufactured Homes 52 40 23 12 0

(3) For Federal buildings that do not fit into any of the building type categories listed in Table 1 of § 435.4, a baseline fossil fuel-generated energy consumption shall be calculated using the Simulated Performance Alternative outlined in § 435.5. The maximum allowable fossil fuel-generated energy consumption for the proposed design shall be calculated by using the following formula:Show citation box

Maximum Allowable Fossil Fuel-Generated Energy Consumption = ((Baseline Design Electricity Consumption × Electricity Source Energy Factor × Electricity Fossil Fuel-Generation Ratio) + Baseline Design Direct Fossil Fuel Consumption) × Fossil Fuel Reduction MultiplierShow citation box

(4) The fossil fuel reduction multiplier in the formula above shall be taken from Table 2. Show citation box

Table 2—Fossil Fuel Reduction Multiplier by Fiscal Year for which Design for Construction Began Back to Top
Fiscal year Reduction multiplier
2012-2014 0.45
2015-2019 0.35
2020-2024 0.20
2025-2029 0.10
2030 and beyond 0.00

(5) All building energy usage, including estimated receptacle and plug loads, must be included in the calculation in Table 2 of this section.Show citation box

(f)(1) Upon petition by an agency subject to this section, the Secretary may adjust the applicable numeric requirement in paragraph (e) of this section with respect to a specific building, if:Show citation box

(i) The head of the agency designing the building certifies in writing that meeting such requirement would be technically impracticable in light of the agency’s specified functional needs for that building;Show citation box

(ii) The head of the agency designing the building demonstrates that the requested adjustment is the largest feasible reduction in fossil fuel-generated consumption that can reasonably be achieved; andShow citation box

(iii) The Secretary concurs with the agency’s conclusion.Show citation box

(2) This adjustment shall not apply to the General Services Administration.Show citation box

12. Section 435.5 is revised to read as follows:Show citation box

§ 435.5 Performance level determination.

(a) For new Federal low-rise residential buildings whose design for construction started on or after January 3, 2007, each Federal agency shall determine energy consumption levels for both the baseline building and proposed building by using the Simulated Performance Alternative found in section 404 of the ICC International Energy Conservation Code, 2004 Supplement Edition, January 2005 (incorporated by reference; see§ 435.3).Show citation box

(b) Subject to § 435.4(d), each Federal agency shall calculate the fossil fuel-generated energy consumption of a proposed design by the following formula:Show citation box

Proposed Design Fossil Fuel-Generated Energy Consumption = (Proposed Design Electricity Consumption × Electricity Source Energy Factor × Electricity Fossil Fuel-Generation Ratio) + Direct Fossil Fuel Consumption of Proposed DesignShow citation box

(c) Subject to § 435.4(d), if the fossil fuel-generated energy consumption of the proposed design is equal to or less than the applicable maximum allowable fossil fuel-generated energy consumption value in § 435.4(e), the proposed design complies with the fossil fuel-generated energy consumption reduction requirement in § 435.4. If the fossil fuel-generated energy consumption of the proposed design is greater than the applicable maximum allowable fossil fuel-generated energy consumption value in § 435.4(e), the building does not comply with the fossil fuel-generated energy consumption reduction requirement in § 435.4, and the agency must either modify the design until the design complies with the requirement, or request and receive approval from the Secretary for a downward adjustment of the requirement.Show citation box

[FR Doc. 2010-25852 Filed 10-14-10; 8:45 am]

Footnotes Back to Top

1. Under 40 U.S.C. 3301(5) “public building” is a building, whether for single or multitenant occupancy, and its grounds, approaches, and appurtenances, which is generally suitable for use as office or storage space or both by one or more Federal agencies or mixed-ownership Government corporations.

“Public building” includes Federal office buildings, post offices, customhouses, courthouses, appraisers stores, border inspection facilities, warehouses, record centers, relocation facilities, telecommuting centers, similar Federal facilities, and any other buildings or construction projects the inclusion of which the President considers to be justified in the public interest.

The definition does not include a building or construction project that is on the public domain (including that reserved for national forests and other purposes); that is on property of the Government in foreign countries; that is on Indian and native Eskimo property held in trust by the Government; that is on land used in connection with Federal programs for agricultural, recreational, and conservation purposes, including research in connection with the programs; that is on or used in connection with river, harbor, flood control, reclamation or power projects, for chemical manufacturing or development projects, or for nuclear production, research, or development projects; that is on or used in connection with housing and residential projects; that is on military installations (including any fort, camp, post, naval training station, airfield, proving ground, military supply depot, military school, or any similar facility of the Department of Defense); that is on installations of the Department of Veterans Affairs used for hospital or domiciliary purposes; or the exclusion of which the President considers to be justified in the public interest.

USGBC – LEED – At Center of Legal Action

USGBC, LEED Targeted by Class-Action Suit

 

Henry Gifford, whose lawyer filed a class-action lawsuit against USGBC, has been an outspoken LEED critic since 2008. 

SOURCE: BUILDINGGREEN.COM

The U.S. Green Building Council (USGBC) and its founders have been named as defendants in a class action lawsuit filed in federal court. Filed on behalf of mechanical systems designer Henry Gifford, owner of Gifford Fuel Saving, the lawsuit was stamped on October 8, 2010 at the U.S. District Court for the Southern District of New York. Among other allegations, the suit argues that USGBC is fraudulently misleading consumers and fraudulently misrepresenting energy performance of buildings certified under its LEED rating systems, and that LEED is harming the environment by leading consumers away from using proven energy-saving strategies.

Alleged fraud and deceptive practices

The suit alleges that USGBC’s claim that it verifies efficient design and construction is “false and intended to mislead the consumer and monopolize the market for energy-efficient building design.” To support this allegation Gifford relies heavily on his critique of a 2008 study from New Buildings Institute (NBI) and USGBC that is, to date, the most comprehensive look at the actual energy performance of buildings certified under LEED for New Construction and Major Renovations (LEED-NC). While the NBI study makes the case that LEED buildings are, on average, 25%–30% more efficient than the national average, Gifford published his own analysis in 2008 concluding that LEED buildings are, on average, 29% less efficient. A subsequent analysis of the NBI data by National Research Council Canada supported NBI’s findings, if not its methods. (Commentary questioning the respective statistical approaches of both the original study and Gifford’s analysis appears in this BuildingGreen.com blog post by Nadav Malin, president of EBN’s publisher BuildingGreen.)

Using that study and USGBC’s promotion of it, the suit alleges fraud under the Sherman Anti-Trust Act, among other statutes. Gifford’s suit demands that USGBC cease deceptive practices and pay $100 million in compensation to victims, in addition to legal fees. Under the Lanham Act, the suit repeats the same concerns in alleging deceptive marketing and unfair competition. Other allegations include deceptive business practices and false advertising under New York State law, as well as wire fraud and unjust enrichment.

Class-action suit

By having his lawyer, Norah Hart of Treuhaft and Zakarin, file a class-action lawsuit, Gifford is not only claiming that he has been harmed by USGBC, but that he is one of a class of plaintiffs that have been harmed. According to the suit, those plaintiffs include owners who paid for LEED certification on false premises, professionals like Gifford whose livelihoods have allegedly been harmed by LEED, and taxpayers whose money has subsidized LEED buildings.

The class action approach may be technically difficult to pursue in this case, says lawyer Shari Shapiro in an article on her green building law blog. Among other things, Shapiro notes that in a class action suit it is relevant whether, among other things, “the plaintiffs are enough alike so that their claims can be adjudicated together” and “whether the lead plaintiffs adequately represent members of the class.” Given the variety of plaintiffs Gifford is trying to represent, that may be hard, she says.

Shapiro, assuming that Gifford has benefited from the green building wave, even questions whether Gifford has even been harmed, as he would have to be to take part in the lawsuit. However, Gifford told EBN that there’s no question about that. “Nobody hires me to fix their buildings,” he said. Though not an engineer, Gifford is respected in energy efficiency circles for his technical knowledge. He told EBN that he has lost out because owners are fixated on earning LEED points, and he doesn’t participate: “Unless you’re a LEED AP you’re not going to get work.” That’s unfair, he claims, because while USGBC says that its product saves energy, it doesn’t. Gifford says that his services actually save energy, and he’s prepared to prove it by sharing energy bills from buildings he has worked on.

Whether many other building professionals feel the way Gifford does, and whether they’re willing to go on the record, will be one aspect of this case to watch. Gifford indicated that the response so far has been mixed. As he told EBN, “Everybody has the same response: thank you, thank you… let me know how it goes.”

Was there fraud?

If the case does move ahead, Stephen Del Percio, a lawyer and author of the blog GreenRealEstateLaw.com, told EBN that it will be challenging to litigate. “You can’t prove fraud just by circumstantial evidence,” he said. Even if the NBI study is false, that may not be enough. “You have to intend to mislead people,” he said. Gifford told EBN that he doesn’t have evidence that anyone at USGBC tried to mislead the public, but if the suit proceeds the discovery process could, in theory, turn up emails or other communications that support Gifford’s case.

USGBC performance initatives

Gifford’s complaints focus on the 2008 study and how USGBC publicized it, but they don’t appear to account for other aspects of LEED. Gifford focuses on buildings certified under LEED for New Construction (LEED-NC), but the scope of LEED-NC and other LEED rating systems is clearly distinct. LEED for Existing Buildings, launched in 2004, looks at actual building performance, and in 2006, USGBC announced that buildings certified under LEED-NC would have the option of being enrolled at no charge in LEED for Existing Buildings. In 2007 USGBC launched LEED for Homes. While that system focuses on design and construction of new homes, it requires on-site verification including blower-door testing during construction, helping ensure that construction practices follow the design intent.

Although this final piece may be too late for Gifford and the contentions of his lawsuit, in 2009 USGBC began requiring reporting of energy and water data for new buildings certified under the newer LEED 2009, and it set up infrastructure to invite sharing of information from all LEED-certified buildings (see “USGBC Expands Data Collection from LEED Buildings,” EBN Aug. 2010).

Through this effort, the Building Performance Partnership, USGBC hopes to offer special help to LEED-certified buildings that are not living up to expected performance, according to Brendan Owens, P.E., vice president for LEED technical development at USGBC. Although USGBC has generally played down the possibility because it doesn’t want to discourage participation in LEED, and energy reporting, CEO Rick Fedrizzi has suggested that non-performing buildings may lose LEED certification in one form or another.

Despite these efforts, Gifford complained to EBN that “the green label gives the designer, the developer, the contractor and the owner the right to hold a press conference staying that their building is energy-efficient, while the LEED system guarantees anonymity” when it comes to reporting actual energy use.

Why sue?

Asked by EBN why he was motivated to go to court, Gifford said, “I’m afraid that in a few years somebody really evil will publicize the fact that green buildings don’t save energy and argue that the only solution [to resource constraints] is more guns to shoot at the people who have oil underneath their sand.” In other words, he says he’s hoping to make the green building movement more honest so that it’s not embarrassed down the road.

USGBC told EBN that it was reviewing the litigation and would respond in due course. In addition to USGBC, other named defendants are David Gottfried, a USGBC founder; Rob Watson, who helped start LEED in the 1990s while working for the Natural Resources Defense Council; and Rick Fedrizzi, a co-founder and currently CEO. Responding to EBN’s request for comment, Watson said, “I can’t comment on ongoing litigation except to say that USGBC is examining the complaint. USGBC has confidence in LEED and in our role in stimulating positive market change.”

Michael Italiano, the only key USGBC founder not named as a defendant, told EBN that while he hadn’t reviewed the case, “To me it sounds frivolous and it doesn’t have much chance.” He noted, “LEED doesn’t guarantee anything, and I think LEED gives people the tools to understand that.” Owners who want to verify performance can enroll in LEED for Existing Buildings, monitor their energy bills, and take other actions, he noted. A lawyer and currently CEO of Market Transformation to Sustainability, a nonprofit behind green standards, Italiano said that lawsuits targeting standards that have allegedly constrained trade typically focus on lack of a bona fide consensus process of standard-setting. In the case of LEED, he said, a broad array of stakeholders has been involved in writing and reviewing LEED standards.

Russell Perry, FAIA, of SmithGroup, agreed that if anyone thinks LEED for New Construction guarantees higher energy performance, they have the wrong idea. “LEED-NC is saying that a building has been designed to meet a certain standard, but there are many variables that go into the actual performance, only one of which is design.” Perry also noted that LEED includes a broad array of topics, only one of which is energy. Referring to climate change and other environmental and health issues, Perry added, “I don’t think that this kind of distraction helps us move the ball down the field.”

– Tristan Roberts

October 14, 2010