PRELIMINARY DRAFT
Report on Building Energy Codes
Presented by the Maine Public Utilities Commission
To the Joint Standing Committee on Utilities and
Energy January 12, 2004
Executive Summary
Background
P.L.
2003 ch. 497 requires the Maine Public Utilities Commission (Commission) to
examine building energy codes and standards and to report its findings and
recommendations to the Joint Standing Committee on Utilities and Energy by
February 1, 2004. The Commission is
issuing this “preliminary draft” report containing its findings, but omitting
portions of background and explanation, to assist the Utilities and Energy
Committee and the Business, Research and Economic Development Committee as they
consider, during January 2004, bills related to building codes.
Our investigation parallels other statewide
investigations of a wider spectrum of building construction and operation
practices. We have monitored some, but
not all, of these investigations, but we have not contributed to their
recommendations. We believe that the
Legislature expects us to develop findings that are independent from the
findings of the broader investigations, and we have generally done so.
The
Commission has significant expertise in energy policy and its impacts on
Maine’s electric and natural gas ratepayers.
We have a more limited level of expertise in the impacts of energy use
associated with building construction and operations. We present our findings within the context of our own unique
expertise. We expect that the Legislature
will consider our findings in the context of the broader investigation and that
decisions regarding energy codes will complement and be consistent with these
broader decisions.
With
this perspective in mind, we viewed our first task as identifying the goals
that energy codes can achieve, to assist the Legislature in deciding whether
some form of energy codes should be adopted in Maine. We next identified the issues to address and the advantages of
available approaches in meeting energy-related goals, to assist the Legislature
in establishing the most effective procedures in the event it decides to pursue
energy code adoption.
Findings
The
Commission finds that, by reducing the energy and thereby the electricity, oil,
or natural gas used in a building, energy codes provide the following
advantages:
·
Environmental
improvement
·
Guaranteed “reasonable”
minimal building practices
·
Reduced need for public
incentives
·
Improved overall state
economy
·
Financial savings for
building owner
·
Financial savings for
future building owner
·
Consistency for
contactors
·
Contractor equity
The Commission finds that the International Energy
Conservation Code (IECC) – the energy component of the I-Codes - is an
effective, useable, and widely adopted energy code that results in reasonably
efficient energy use in buildings constructed according to its specifications.[1]
The I-Codes and the IECC have the following advantages:
·
The I-Codes are
supported by the majority of Maine’s stakeholders, including the Statewide
Building Code Working Group (although the Group did not explicitly address the
energy component of the I-Codes)
·
The I-Codes or their
predecessors (including the MEC, which is the energy component of the BOCA
codes) have been adopted for residential construction in most other states and
many municipalities in Maine
·
The I-Codes adopt
ASHRAE 90.1 standards for commercial construction, which is the standard
currently established in Maine law and the requirements of most other states
·
Other national codes
offer no apparently significant improvement over the IECC
·
The Department of
Energy supports the IECC and offers funding and support to assist compliance
The report summarizes three models of code adoption:
·
Mandatory (codes are
applicable in all locations in the State)
·
Voluntary (a
municipality may choose to adopt or not, but it may only adopt the
state-sanctioned code)
·
No codes
Six
enforcement models are discussed and adoption in other states is summarized:
·
Local building code
inspectors
·
State agency
enforcement
·
Privatization
·
Self-certification and
disclosure to homeowner
·
Self-certification to a
state agency
·
Civil penalties
Beyond all else, the
Commission recommends against the current state model, under which energy codes
are mandatory, but no enforcement occurs and many builders may be unaware of
statutory requirements.
Finally, the Commission makes the following findings:
· If the Legislature concludes that building energy codes should be adopted, the Commission finds that mandatory energy codes – i.e., codes that are required in all municipalities in the State – are most effective at realizing the advantages that codes produce. To the extent that codes apply to only a portion of construction projects, environmental benefits are diluted, some citizens may not benefit from the financial advantages, the advantage to contractors of consistency is diminished, and there is less positive market effect of economies of scale.
However, the ideal practice
will not be successful if it cannot be implemented effectively, and there is a
financial cost to mandatory adoption.
It is not within the Commission’s authority to decide how best to spend
the State’s or municipalities’ limited funds.
However, mandatory codes should only be adopted if an effective
enforcement method is established.
·
The Commission finds
that, if available State and municipal funds for new programs are not adequate
to support enforcement of mandatory energy codes, alternative enforcement
models exist that could result in relatively effective enforcement at a lower
cost.
·
The Commission finds
that privatizing enforcement procedures may be an effective way to reduce the
level of public funds and resources needed to provide adequate enforcement of
building energy codes. Under this enforcement
model, a municipality could choose one of four options: support a codes enforcement officer at town
expense (as many do now), consolidate with a group of municipalities to hire or
contract with a single enforcement officer, use the state-certified enforcement
officers for a fee paid through municipal funds, or require its citizens to
obtain, at their own expense, the services of a state-certified inspector.
·
The Commission finds
that, if the adoption of voluntary codes is the only means of attaining
acceptance among the entities that must support and implement energy codes,
some limited benefits will result.
However, current municipal practices suggest that municipalities would
often adopt health and safety codes while not adopting energy codes, making
this approach less effective in introducing energy codes than in introducing
other building codes to Maine.
I.
Background
Legislative
Activity
During
the First Regular Session of the 121st Legislature, the Legislature
enacted P.L. 2003 ch. 497, “An Act to Promote Energy Conservation.” Section 4 of Chapter 497 requires the Maine
Public Utilities Commission (Commission) to examine building energy codes and
standards, including above-standard guidelines, and to report its findings and
recommendations to the Joint Standing Committee on Utilities and Energy
(U&E) by February 1, 2004.
Concurrently,
the Joint Standing Committee on Business, Research and Economic Development
(BRED) considered bills that would govern other issues associated with building construction. Two bills – one that would establish
State-licensed building code inspectors and one that would require residential
construction contractors to be licensed by the State - have been held over for
consideration during 2004.
As
a result of discussions before the BRED committee, persons with interest in the
State’s building codes formed the Statewide Building Code Working Group (BCWG)
to consider and recommend a family of codes that would govern a wide range of
building operations, including areas as diverse as accessibility, elevators,
fire, and plumbing. The BCWG voted to
recommend that Maine adopt the International Residential Code (IRC) and the
International Building Code (IBC), which are part of the so-called family of
I-Codes. In addition, the BCWG recommended
that building codes be mandatory only if the State provides adequate funding
for enforcement. The full text of the
recommendation may be found on the Commission’s web site: www/state/me/mpuc/legislat.
Finally,
the Department of Professional and Financial Regulation is conducting a review,
pursuant to its statutory authority and procedures, of the advantages and
impacts of requiring contractors to be licensed.
Existing
State and Federal Energy Code Laws
Maine
law, at 10 M.R.S.A. Chapter 214,[2]
contains requirements that govern energy efficiency standards that must be
attained during the construction of certain new residential buildings and all
new commercial buildings. The
residential standards are quite limited.
Chapter 214 establishes prescriptive standards governing new residential
building envelope insulation levels, but contains no standards for other
building practices, such as heating and insulation, that influence energy
use. In addition, it exempts from the
requirements new single-family residential buildings constructed under contract
with the resident and new log cabins.
The Chapter’s requirements are more comprehensive for commercial
structures, in that it requires new construction and renovation of these
buildings to conform to ASHRAE energy conservation and ventilation standards.[3]
Chapter
214 also establishes administrative procedures for implementing these energy
standards. It requires the Department
of Economic and Community Development (DECD) to administer and enforce the
standards and to revise a Manual of Accepted Practices for residential energy
efficiency practices, and it allows the “Director of the Energy Conservation
Division” to adopt rules establishing performance-based compliance procedures
for residential buildings. It does not,
however, explicitly establish procedures for enforcing the energy
standards.
Since 1980, the State has maintained a Manual of Accepted
Practices that contains practical descriptions of construction practices that
will result in compliance with the residential standards contained in Chapter
214 as well as practices that go beyond those standards. These practices are based on commonly
accepted approaches that currently are effective in Maine.
However,
enforcement of these statutory energy codes has been problematic. Prior to the First Session of the 121st
Legislature, limited resources
prohibited DECD from implementing meaningful enforcement procedures. Through P.L. 2003 ch. 20, the Energy
Conservation Division and its “powers, duties and functions” were transferred
to the Public Utilities Commission, but some of Chapter 214 remained unchanged,
thereby apparently leaving DECD with the responsibility for enforcing
standards. This ambiguity must be
resolved during the upcoming Legislative Session.
Approximately
15% of Maine’s municipalities (representing more than 50% of Maine’s citizens)
have voluntarily adopted and enforce building codes. These municipalities have generally adopted BOCA codes (which
will be discussed later in this report) and generally enforce the codes with
local or shared building code enforcement officers that perform
post-construction inspections. However,
municipalities generally do not enforce the energy component of their
adopted family of codes, but focus on health and safety codes. Thus, there is generally no current
municipal infrastructure that is addressing energy standards and their
enforcement.
Finally, the federal Energy Policy Act (EPAct) of
1992[4]
authorizes the federal Department of Energy (DOE) to determine an energy code
that will improve efficiency in residential buildings. Each state must determine whether it is
appropriate to revise its residential code to meet the DOE designated standard. DOE designated the energy component of the I-Codes,
called the International Energy Conservation Code (IECC), as its designated
standard. Maine is considered to be one
of only ten states that have not explicitly complied with the EPAct requirement
to review and revise their residential energy codes.
II.
Process
To
carry out its directive, the Commission first monitored the meetings of the
BCWG. It was our belief that the
decisions made in that group regarding the complete family of building codes
would form a basis upon which to consider the narrower category of energy
codes. Upon the conclusion of that
group’s activities, the Commission opened a formal inquiry of energy codes,
solicited written comments from interested persons, and held a public hearing. Appendix A lists the persons who provided
comments.[5] This list indicates that we received
significant input from groups interested in accomplishing the environmental
improvements that can be attained with building codes and from persons
representing commercial building constructors, but we received no input from
residential building constructors.[6]
In
addition, we researched other states’ activities, believing that maintaining
consistency among states would result in more effective and less costly
implementation of codes ultimately adopted in Maine.
III.
Goals of Building
Energy Codes
Most
building codes address health and safety concerns such as fire protection and
electrical safety. Energy codes
reduce the use of energy used in a building, thereby reducing the consumption
of electricity, oil, or natural gas.
The advantages of reducing energy can be categorized into two broad
categories – environmental and financial.
Some of the advantages (e.g., environmental improvement or consumer
protection) may form policy goals that drive the adoption of codes. Other advantages (e.g., long-term financial
benefit to a building owner) may not, in themselves, provide the basis for
adopting codes, but may make imposing codes on Maine’s citizens more attractive
and acceptable.
Environmental improvement. Burning or using fuels to produce energy
creates emissions that can be harmful to human health. According to the Natural Resources Council
of Maine (NRCM), 30% of US greenhouse gases come from buildings and building construction.[7] In response to a question by the Commission,
the representative of the Building Codes Assistance Project (BCAP) estimated
that 1.25 Million metric tons of CO2 emissions could be saved in Maine if
construction followed the I-Codes as opposed to likely current construction
practices.[8] The Independent System Operator in New
England (ISO-NE), estimates that 1393.9 pounds of CO2, 1.7 pounds of
Nox, and 4.9 pounds of SOX emissions[9]
are created when one incremental MWh of electricity is generated, and fuel oil
and natural gas consumption also create harmful emissions. Saving energy through more efficient
building construction results in a reduction in these harmful emissions.
Guaranteed “reasonable” minimal building practices. Many
homeowners or commercial building tenants have minimal expertise in
construction practices and are thus dependent upon their builder for good
decision-making. If policy makers
believe that homeowners have an expectation and assumption that buildings are
constructed to some “reasonable” standard, just as electricity and plumbing is
installed safely,[10]
codes are a way to ensure that this occurs.
Furthermore, should a consumer believe that a building has been
constructed in a shoddy or unacceptable manner, the existence of codes will
facilitate evaluation of the complaint by the consumer and by enforcement
agencies.
Reduced need for public incentives. In contrast
to publicly-funded programs that offer financial incentives to citizens who
construct efficient buildings, codes internalize energy efficiency into the
building market. Once enacted, their
consistency ensures that appropriate products are manufactured and sold and
procedures followed. The cost of these
products and procedures reduces through economies of scale, and the market is
transformed faster than through a rebate incentive approach. Not only is the result more consistent, but
the costs are borne by the “right” people, namely those that benefit from the
lower energy costs, rather than by the body of ratepayers or the public as a
whole, many of whom will not benefit because they have not constructed a
building themselves or because the public funding comes from taxing one type of
fuel (e.g., electricity) to save another (e.g., oil).
Improved over-all state economy. An inferior commercial or residential building stock may
contribute to making Maine a less attractive location for new businesses or
families.
Financial savings for the building owner or tenant. Constructing
a building using energy-efficient design and materials usually costs more than
constructing a less efficient building.[11] However, over the lifetime of the building,
energy savings usually offset the higher construction costs. High up-front costs and lack of customer
knowledge or focus on life cycle financial analysis may be leading causes of
inefficient practices by consumers.
This effect is magnified when the building is constructed on speculation
or is a rental unit, and the developer does not pay the energy bill. The fact
that many consumers make short-term decisions is the basis for many government
programs whose goals are to increase the efficiency of the public’s energy
practices.
Financial savings for future building owners. The
short-term decision to build a less-efficient building affects all future
owners of the home. The financial harm
to future owners is magnified because they did not benefit from the lower
construction costs. Housing stock turns
over rapidly.[12] Renovating a building to improve its
efficiency is more costly than building it efficiently to begin with, and all
future homeowners are dependent on the decisions made by the original builder.
Simplicity for contractors. When codes differ from town to town,
contractors must investigate and learn the applicable requirements each time
they construct a building, adding time and expense and risking
misinterpretation.
Contractor equity. More experienced or progressive contractors
are more likely to have expertise in efficient practices and to build more
efficient buildings. If there are
codes, all contractors will at least be required to meet a basic standard. Furthermore, under the current condition in
which codes exist but are not enforced, contractors are placed in a difficult
position – if they build to code, they may lose jobs to contractors who do not
because of higher up-front quotes, and if they do not build to code they are in
conflict with Maine Law. Well-enforced
codes level the playing field for contractors for both these reasons.
IV. Existing Building Energy Codes
There
are two generally-accepted families of current building codes and a variety of
older codes that are merging to various degrees into the two current
codes. If policy makers decide to adopt
codes, it is reasonable to choose between the first two; however, the fact that some municipalities
currently operate under the older codes must be considered in implementation of
required codes.
ICC I-Codes. The International Code Council (ICC) is an
organization composed of a variety of stakeholders, that establishes widely
used building standards called the I-Codes.
The I-Codes may be considered a family of codes that addresses
functional areas of building construction and operation, including fire
protection, elevator safety, mechanical systems, and energy. Codes exist for each functional area
separately, but consistency in approach and practices exists across the
functional areas. In the area of
energy, the I-Codes contain the International Energy Conservation Code (IECC),
which in turn incorporates ASHRAE 90.1[13]
(adopted in Statute as Maine’s energy standards for commercial buildings) and
ASHRAE 90.2 (energy standards for residential buildings).[14] The IECC adds flexibility to builders’ means
of complying with the ASHRAE standards by including prescriptive standards
(e.g., specific R-values) and performance standards (e.g., maximum kWh use for
buildings of a particular size). IECC
standards are differentiated into climate zones. The I-Codes are described in a series of publications.
NFPA Codes. Like ICC, the National Fire Protection
Association (NFPA) is a group of stakeholders that has developed a family of
codes addressing many functional areas of building construction and
operation. The NFPA codes exist
separately but are consistent in approach and practices across the functional
areas. The NFPA codes contain the NFPA
5000 Building and Construction Code, which in turn incorporates but expands
upon ASHRAE 90.1 and ASHRAE 90.2.
Earlier Versions of Codes. Finally, a nationally accepted codes exist
that are being superceded by IECC or NFPA, but that were adopted years ago by
various states and municipalities.
These include the widely used Model Energy Code or MEC (produced by the
Council of American Building Officials, or CABO), the Southern Building Codes
(SBC), the National Building Codes (codes produced by the Building Officials
and Code Administrators International or BOCA), and the Uniform Building Codes
(UBC). In turn, BOCA (which is the code
adopted by most Maine communities that have adopted codes) incorporates the
MEC. All these codes are described as
being similar to, or consistent with, the more recently-emerging I-Codes. BOCA, SBC and UBC have merged to become the
ICC. The MEC, which is still the
adopted energy code in approximately 16 states, may be considered simply an
earlier version of the IECC energy code.
Comments Related to all Codes. All the codes we studied are
developed through some sort of consensus process. Stakeholders consider only technical efficiency, practicality,
and cost-effectiveness. Because of
these facts, adopted codes are not state-of-the-art. Commenters in our investigation pointed out that codes tend to
produce the worst building that can be considered reasonable, or at any rate a
mediocre one. Above-code practices like
Energy Star, E-Benchmark, and LEED standards, often funded through public
programs such as federal DOE grants, act to identify the next generation of
efficiency practices that, after considerable experimentation and adoption,
become code.
In
addition, codes generally are living documents, with a process whereby
stakeholders can recommend changes and all interested persons comment before
incorporation into the codes. The Model
Energy Codes (MEC) and now the I-Codes are on a three-year revision cycle,
whereby the adopting organization amends the codes and states in turn decide
whether to adopt the newest version.
MEC has 1995 and 1998 versions.
The I-Codes have 2000 and 2003 versions.
The
table below displays the residential codes adopted by other states. It shows that 40 states have adopted, at
some level, a nationally recognized energy code that is either a version of
IECC or its predecessor, the MEC.
V.
Cost
Effectiveness of Energy Codes
The Commission has discovered
a number of credible studies indicating that, over the life of a residential
building, the savings in energy costs outweigh the higher construction cost
associated with code compliance. At
this time, we have not studied analyses of whether commercial codes are
cost-beneficial to consumers, although we have heard verbal assertions that
this is so. These studies include:
1.
An economic analysis of
the Maine Residential Energy Standards (Maine RES), May 2002, performed by R.
J. Karg Associates for the Maine State Planning Office. The study analyzed the costs and benefits of
building residential homes compliant with Maine’s voluntary efficiency
standards as opposed to Maine’s statutory residential efficiency
requirements. The study modeled 24
houses in Portland and Caribou. With a
few exceptions, all individual energy efficiency improvements resulted in
savings that exceeded cost over time.
2.
The Karg study cites
other studies that have determined that energy efficiency improvements typical
of those included in IECC are cost effective.
These include studies by the Energy Efficiency and Renewable Energy
Network (EREN) and the federal Department of Energy.
3.
The Karg study also
concluded that the energy savings associated with code compliance increases the
resale value of residential homes.
The Commission will supply additional discussion of cost
effectiveness in its final report.
A familiar question arises –
if building an energy efficient building saves money, why doesn’t everyone do
it? The likely answer is also familiar:
consumers make short-term decisions, thus choosing less costly upfront
construction cost (and thus less efficient buildings); they focus on other
building features; and the savings from energy efficiency are perceived as
small compared with the magnitude of dollars being considered for construction
overall.
In our investigation, some
parties asserted that many consumers are not aware of the tradeoffs in costs
and benefits and that codes would provide value to such consumers in the long
run. An opposing point of view is that
consumers should have the freedom to make such a personal financial decision
for themselves. The latter point of
view might argue for developing a means to guarantee that, at the time a
consumer makes a construction decision, he or she is made aware of the life
cycle impact of construction alternatives.
VI. Commission Findings and Analysis - Energy Codes
The Commission finds that the IECC is an effective,
useable, and widely adopted energy code that results in reasonably efficient
energy use in buildings constructed according to its specifications.[15]
The I-Codes and their energy component, the IECC, have the following
advantages:
I-Codes are supported by the majority of Maine’s
stakeholders, including the BCWG. Most commenters in the Commission’s
investigation endorsed the IECC as the
most appropriate code for Maine. The
NFPA supported its NFPA code, and some commenters objected to specific,
non-energy portions of the I-Codes. It
has been difficult for us to determine the position of codes enforcement officers,
as comments have varied. This group was
represented on the BCWG, which endorsed the I-Codes. However, officers in our investigation have commented that the
I-Codes are complicated, that towns should be free to adopt codes of their own
choice, or that the I-Codes are acceptable but funds must be available for
enforcement.
In addition, as described in the first section of
this report, the statewide Building Code Working Group reached a consensus
recommendation to support the I-Codes as Maine’s building standards. The BCWG did not focus on the energy codes
specifically, and it is our understanding that members intentionally concluded
that energy codes should be addressed at a later date. However, their support for the I-Codes
lends credence to our opinion that the I-Codes are the most appropriate family
of codes to adopt. Finally, the federal
Department of Energy supports the IECC, adding another strong endorsement.
The I-Codes or their predecessors have been adopted
for residential construction in most other states and many municipalities in
Maine. As displayed earlier in this report, 25 states have adopted the
IECC for residential buildings, 15 have adopted MEC codes (which are
predecessors to IECC), and all New England and Middle Atlantic states except
Maine have adopted either IECC or MEC.
As discussed earlier, although Maine has not adopted a statewide
comprehensive residential code, the municipalities that have adopted codes
generally follow BOCA codes, whose MEC energy component is similar to IECC
codes (although, as discussed earlier, municipalities have generally not
enforced the energy component). Our
investigation leads us to believe that a movement toward the I-Codes is
generally pervasive nationally.
Consistency across states will result in manufacturers producing only
materials that comply with the prevailing code, will lower the cost of
materials through the effect of high volume production, and will allow
contractors to operate across state lines without the additional cost of
differing construction practices. This
advantage is especially important in a small state like Maine.
The I-Codes incorporate ASHRAE 90.1 for commercial
construction. Maine statute requires commercial construction to
comply with ASHRAE 90.1 energy requirements.
Most states accept the ASHRAE 90.1 standards for commercial buildings,
rather than expand their requirements to include the IECC. We suspect that this is because commercial
buildings are typically designed by engineers who are accustomed to dealing
with codes developed with engineers in mind, whereas residential construction
is performed by a wider variety of individuals who are well-served by the less
technical and more flexible performance compliance procedures that the IECC
provides. We believe that Maine could
follow this approach and retain its current adoption of ASHRAE 90.1 for
commercial buildings, but that adoption of the IECC would be equally
appropriate and would offer more flexibility and assistance to designers of
smaller commercial buildings.
Other national codes apparently offer no significant
improvements. When asked during the course of our
investigation, no commenter, including the NFPA, could describe any significant
differences between the IECC and NFPA energy codes. Indeed, both incorporate ASHRAE 90.1 and ASHRAE 90.2 as core
energy standards. Thus, we could find
no compelling reason to follow a course that differed from virtually every
state in the northeast.
NFPA appears to claim that their consensus
decision-making process is more open than is ICC’s process, and that the codes
thus reflect a less biased view of building construction. We did not find this claim to be compelling.
DOE provides support and compliance tools. The federal
government’s support has resulted in DOE’s development of resources to assist
builders in meeting IECC requirements, including training, computer software
(the RESCHECK program is widely used to measure building performance), and
financial assistance.
VII. Compliance and Enforcement
Perhaps the more difficult
decision to make regarding energy code adoption is the enforcement method the
State should use to ensure their use.
Ths decision encompasses two issues:
(1) whether codes are “mandatory” or “voluntary,” and (2) how compliance
is enforced.
Mandatory vs. Voluntary
Adoption. For those unfamiliar with the building code
lexicon, the commonly used terms “mandatory” and “voluntary” have misleading
definitions. Three primary code
adoption models exist:
1.
Mandatory: Under mandatory adoption, a state adopts a
code that applies to all locations in the state. Enforcement may be done by municipalities, by a state agency,
through private but licensed officials, or through self-certification, as
discussed later in this report.
2.
Voluntary: Under voluntary adoption, each municipality
may choose to adopt or not adopt a code, but if it adopts a code it may only
adopt the state’s chosen code. In most
states, if a municipality adopts a code, it must enforce the code. However, state or private enforcement and
self-certification are also options. In
many states, municipalities may adopt features that are more stringent than the
state code. In no instance may an
individual builder choose which code (if any) to adopt.
3.
No codes: Under this model, each builder chooses the
practices that will be followed during building construction. In some states, municipalities choose to
adopt codes, but the code is not consistent among adopting towns.
Most commenters in the
Commission investigation support mandatory adoption in theory. They believe that allowing towns the
discretion to refuse to adopt a code weakens the effectiveness of the code and
maintains the inconsistency that builders face now. However, members of the BCWG and many of those who commented in
our investigation recognize that mandatory adoption would require enforcement
infrastructure and cost that far exceeds current levels. In particular, the Maine Municipal
Association has made it clear that imposing an enforcement function on towns
that do not now have one, or significantly increasing enforcement requirements
for towns, is unacceptably costly. In
response to this concern, the BCWG conditioned its support for mandatory code
adoption on the existence of funding for enforcement, and commenters in our
investigation suggested enforcement models that would ease municipalities’ and
the state’s administrative and financial burden. These suggestions are discussed later in this report.
Enforcement Methods. There are
six methods typically used for enforcement of a state’s building codes. They
are not mutually exclusive, are used in combination in some states, and each
can be used with either mandatory or voluntary codes.
Local code enforcement
officers: This approach is used in the vast majority of states and in Maine
today among municipalities that have adopted building codes. Virtually all states that adopt voluntary
codes use this compliance method. A
municipality employs (or contracts with) a code enforcement official. Communities may consolidate their
enforcement responsibility and share a single official, or statewide officials
may serve all communities upon request.
Typically, a builder provides the building design to the official, who
must approve the design before construction may begin. The official then inspects the building
after construction and must approve before the owner may occupy.
State agency enforcement: A State
agency carries out the role of the local building inspector. Under this model, the agency reviews the
design and may or may not perform a post-construction inspection. The agency usually oversees code development
and revision and provides information to builders.
Privatization: A State
agency or some other entity certifies private individuals (or a privately-owned
company) to carry out design review and inspection. The builder or a municipality employs these private individuals,
usually at his/her own expense.
Self-certification or
disclosure to homeowner: The builder affixes a sticker in the
building, certifying that the building complies with code or explaining the
extent to which it does not. The
builder informs the building owner if the building does not comply with code.
Self-certification to
government agency: The builder sends a certification to the
enforcing agency, certifying that the building complies with code. The government agency has the authority to
inspect, and does so at its discretion.
Civil penalties for
non-compliance: The owner of a substandard building may take
the builder to court. Damages may be
increased beyond the cost to bring the building to code and may include court
costs.
It is unclear from our
research what actions most typically occur if a builder has constructed a
building that does not comply with codes.
The following table
summarizes the features of each compliance method:
|
Local Building Inspector |
State Agency |
Privatization |
Self-certification to homeowner |
Self-certification to state agency |
Civil penalties |
|
Local
inspectors responsible for other codes and know what is happening in their
towns |
Significant
government infrastructure must be established |
State-supported
certification process must be established |
No
administration required |
Some
government infrastructure must be established. |
Court
involvement required |
|
Significant
cost, borne by town (local taxes) |
Significant
cost, borne by State (state taxes) |
Cost,
borne by builder/owner |
No cost
unless homeowner wants to verify |
Lower
cost than other state-supported methods |
Significant
effort required by owner |
|
Inspection
quality varies |
Consistent
inspection quality |
Consistent
inspection quality |
Requires
knowledgeable builders |
Requires
knowledgeable builders |
Requires
knowledgeable owners |
|
High
likelihood of compliance: procedures already in place |
Likelihood
of compliance |
Likelihood
of compliance |
Risk of
intentional non-compliance if homeowner does not desire efficient building
and no oversite |
Some risk
of intentional non-compliance |
Risk of
consumer difficulty in bringing and winning suit |
|
Responsibility
borne by town |
Responsibility
borne by State |
Responsibility
borne by State |
Responsibility
borne by builder |
Responsibility
borne primarily by builder |
Responsibility
borne by building owner |
Additional methods for
improving energy efficiency in building construction. If codes are
adopted voluntarily, or not at all, the need to have consumers who are educated
in and focused on building practices is more pronounced. There are a variety of tools for raising the
level of consumer knowledge. Policy
makers could fund some or all of these tools, or could establish some of these
tools as legally acceptable means of verifying compliance. The are described in the following
table.
|
Consumer education |
Builder/designer education |
Verification using HERS |
Builder/designer certification or licensing |
|
Difficult
and costly to reach all homeowners |
Finite
number of builders makes this method more effective than educating consumers |
Builders
may voluntarily use this method to improve their service |
Ensures
knowledgeable builders throughout the State |
|
Responsibility
borne by building owner |
Responsibility
borne by builders` |
|
|
|
|
Education
opportunities are well-developed by DOE and others |
Software
and training are well-developed and available |
Significant
State infrastructure must be developed. |
Compliance and
Enforcement Procedures in Other States.
Appendix B displays enforcement models used in
other states.
VIII. Commission Findings and Analysis - Enforcement Mechanisms
The Commission recommends
against the current state model, under which energy codes are mandatory, but no
enforcement occurs and many builders may be unaware of statutory requirements.
Mandatory Adoption
If the Legislature
concludes that building energy codes should be adopted, the Commission finds
that mandatory energy codes – i.e., codes that are required in all
municipalities in the State – are most effective at realizing the advantages
that codes produce.
The advantages of energy
codes, discussed earlier in this report, are most effectively achieved if codes
apply throughout Maine. The
environmental benefit, which is a policy goal that some believe to be the most
important basis for energy codes, is diluted for all citizens if codes
encompass fewer construction sites.
Financial and consumer protection advantages are equally relevant in all
communities. The advantage to
contractors of known and consistent requirements is significantly reduced if
required practices are not uniform, and the economies of scale that will
encourage manufacturers, retailers, and designers to provide only compliant
materials and procedures will be diminished.
The most common agents of
enforcement are State agencies or a combination of municipal and State
inspection procedures – procedures that are not now in place at the state or
municipal levels in Maine.
The ideal practice will not
be successful if it cannot be implemented effectively, and there is a financial
cost to mandatory adoption. It is not
within the Commission’s authority to decide how best to spend the State’s or
municipalities’ limited funds.[16] However, mandatory codes should only be
adopted if an effective enforcement method is established.
The Commission finds that,
if available State and municipal funds for new programs are not adequate to
support enforcement of mandatory energy codes, alternative enforcement models
exist that could result in relatively effective enforcement at a lower cost.
Privatized enforcement
The Commission finds that
privatizing enforcement procedures may be an effective way to reduce the level of
public funds and resources needed to provide adequate enforcement of building
energy codes.
Privatization of the
enforcement function may avoid the problem of imposing an unfounded mandate on
local building code enforcement offices and municipalities. Under this model, the State would certify
individuals to approve construction designs and perform post-construction
inspections.[17] Building inspection would be done in one of
four ways, at the option of the municipality:
1. a municipality could support a codes enforcement officer at
town expense, as they do now;
2. a group of municipalities could hire or contract with a
single enforcement officer, as they may now;
3. a municipality could use the state-certified enforcement
officers, paying a fee for this service through municipal funds; or
4. a municipality could require its citizens to obtain the
services of a state-certified inspector at their own expense.
Privatization also mitigates,
but does not avoid, the problem that Maine currently lacks a State agency that
oversees code or building policy, and that would logically carry out
enforcement of building codes. Creating
an agency infrastructure to enforce codes throughout the state would require a
significant amount of effort and funds.
Funding could come from the general fund or from an assessment on fuel
industries (e.g., an assessment on electric ratepayers and on oil sales), but
would require an infrastructure not currently in existence outside the electric
industry. The cost of developing a
program to certify private inspectors would be more manageable. A State agency would oversee certification,
monitor private companies’ activities, perform quality control, resolve
disputes, and perhaps provide for training. If the I-Codes are adopted, the
existing ICC certification process could be used, as it is in Massachusetts and
Ohio, minimizing the state’s effort for that function. The Legislature would have to determine
which agency would best perform that function and provide a modest level of funding
and resources in the form of at least one additional person.
When the cost is borne by the
builder, this model adds to the cost of constructing the building. Commenters have quoted $250-$300 as likely
fees for residential inspections, with commercial construction inspection being
higher. We are investigating whether
these estimates are reasonable. While
charging a fee may be unpopular with building owners, placing the cost on the
individual incurring it rather than on all Maine’s citizens is good economics
and is consistent with efforts to send the proper price signals associated with
sprawling construction practices.
Voluntary Adoption.
The Commission finds that,
if the adoption of voluntary codes is the only means of attaining acceptance
among the entities that must support and implement energy codes, some limited
benefits will result.
If privatization (or any
other enforcement mechanism) cannot be funded at this time, voluntary adoption
of energy codes would be a reasonable alternative. Under this model, a town may adopt the energy code or not. If it adopts a code, it must adopt IECC and
it must enforce the codes.[18]
This approach is consistent with the BCWG recommendation,
and the Legislature could endorse it for the same reasons we understand the
BCWG to have endorsed it. It directly
solves the difficulty of enforcement funding, by making the activity elective
instead of mandatory. When compared
with mandatory adoption, it will produce slower statewide adoption of efficient
building practices and will retain some level of inconsistency for designers
and builders. Smaller towns within
driving distance of business communities, where the construction of homes
raises the concern of “sprawl,” are unlikely to have code enforcement officials
(and indeed, this option may in a perverse sense increase the problem of
sprawl). However, the existence of a
single code statewide that is well enforced in towns that choose to do so
would, in a lesser way, encourage more consistent building practices and
attract more consistent manufactured materials. It would facilitate training programs by agencies such as DOE and
ICC, allow builders to all learn similar practices, and establish a definition
of “good practices” that can be used to judge substandard construction. While a second-best option in the long run,
a voluntary approach is an improvement over today’s circumstances and may
provide a basis upon which improvements can be made in the future.
On the other hand, we have no reason to believe that municipalities
would change their current practice of adopting health and safety codes but not
energy codes. If energy codes are
voluntary, municipalities that currently enforce building (but not energy)
codes are unlikely to add energy codes
because of the expense of doing so.
Thus, voluntary adoption may be far less effective in introducing energy
codes into statewide practice than in introducing health and safety codes.
Additional Actions. Regardless of whether the Legislature chooses mandatory or
voluntary adoption or no codes at all, additional actions or requirements could
improve the efficiency of Maine’s newly constructed buildings.
Training. The State
could support or provide training for designers. The Commission, through
Efficiency Maine and through its recently obtained Energy Programs staff, is
supporting some construction training now and DOE funding is available for such
training. Examples are:
·
Training in the
state-endorsed code. R.J. Karg
Associates will conduct training for residential designers during February.
·
Training of school
designers and administrative decision makers.
Efficiency Maine’s new school construction program currently supports
such training.
·
Training in above-code
standards offered by organizations such as LEED and the DOE.
·
Support of the MAP, a
useful tool for designers that should be maintained.
·
Training in the HERS
rating system, a widely used method for displaying to homeowners that they will
save money.
Disclosure to building
owner. The model in which designers and contractors must affix a sticker
in the building asserting compliance with energy codes as well as provide a
disclosure statement to building owners when construction does not meet some
specified level of efficiency appears to be a reasonable practice regardless of
the enforcement method chosen (if any). As the only means of enforcement, this
method is unlikely to be effective because it provides no means of ensuring the
validity of the sticker. In addition, a
homeowner may prefer that the builder construct a sub-standard building, a fact
that the sticker would not address.
However, the practice goes a long way to meeting consumer protection
goals, by ensuring that current and future
building owners are made aware of the efficiency of the building.
Treble damages for
non-compliance. Increasing
the damages awarded a building owner who is deemed through the court system to
be the victim of shoddy practices could add an additional incentive to
construct efficient buildings. As the
only means of enforcement, this method is unlikely to be effective. Building practices are apparently difficult
to address in court because codes are open to interpretation and a successful
suit is difficult to attain. In
addition, a homeowner may prefer that the builder construct a sub-standard
building and would therefore clearly not initiate a suit. However, this method may be an easily
implemented additional incentive for builders to follow state code.
IX. Construction to which Codes Apply
If the Legislature concludes
that building energy codes should be adopted, the Commission finds that energy
codes that apply to all types of construction in the State are most effective
at realizing the advantages that codes produce, for all the reasons discussed
in the section of this report that addresses mandatory adoption. However, the Commission’s expertise does not
encompass the issues or problems that differentiate commercial from residential
construction, or the construction of single-family homes from multi-family or manufactured
homes. The Commission anticipates that
such issues will be presented during the broader statewide working groups’ and
participants’ discussions.
Current statutory residential
energy codes apply to multi-family homes and homes built “on spec” (i.e., by
builders who are not contracted by the peron who will subsequently live in the
home). Statutory commercial energy
codes apply to all non-residential construction. We have been presented with no policy reason for changing the
applicability of the commercial codes, and participants in our investigation
did not explicitly address problems associated with building single-family
homes.
X. Draft
Legislation
The Commission will work with
the Joint Standing Committee on Utilities and Energy to draft legislation to
accomplish the actions that the Committee wishes to enact
XI. Above-Code Standards
To assist the Legislature in
considering above-code standards as required by statute, the Commission
contracted with the Northeast Energy Efficiency Partnership, Inc. (NEEP) to
summarize, compare, and contrast standards and to discuss their use in other
states. That study is complete. We will submit the study and our conclusions
with the final report.
Appendix A
The
following interested persons submitted written or oral comments in the
Commission’s investigation:
American Plastics Council
Associated Constructors of Maine
Atofina Chemicals
Building Codes Assistance Project
Daniel Thayer, P.E. (Thayer Corporation and ASHRAE)
Helen Watts, P.E.
International Code Council
International Association of Plumbing and Mechanical
Officials
Maine Codes Administrators Association
Maine Indoor Air Quality Council
Maine Municipal Association
Maine State Housing Authority
Mid-Maine Code Enforcement Officers Association
Natural Resources Council of Maine
New Buildings Institute
NFPA
Northeast Energy Efficiency Partnerships, Inc.
Pilkington
Responsible Energy Codes Alliance
R. J. Karg Associates
Town of Greenville
Appendix B
Enforcement of Building Codes in Other States
Source: DOE
Web Page
Appendix B (Continued)
Enforcement of Building Codes in Other States
Appendix B (Continued)
Enforcement of Building Codes in Other States
