ERD-51-09-00024-A Green Residential Buildings Program

9/22/10 N.Y. St. Reg. ERD-51-09-00024-A

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 38

September 22, 2010

RULE MAKING ACTIVITIES

NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY

NOTICE OF ADOPTION

 

I.D No. ERD-51-09-00024-A

Filing No. 917

Filing Date. Sept. 03, 2010

Effective Date. Sept. 22, 2010

Green Residential Buildings Program

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Addition of Part 508 to Title 21 NYCRR.

Statutory authority:

Public Authorities Law, sections 1855 and 1872(4)

Subject:

Green Residential Buildings Program.

Purpose:

To establish incentives for new and substantially renovated residential buildings meeting green building criteria.

Substance of final rule:

New Part 508 would establish a Green Residential Building Program. Under Section 508.1, the Part applies to the construction and substantial renovation of residential buildings with less than twelve dwelling units incorporating design and building techniques intended to: (i) promote smart growth and smart site planning; (ii) reduce greenhouse gas emissions; (iii) achieve energy efficiency and reduce energy consumption; (iv) facilitate the incorporation of environmentally responsible products; (v) promote the efficient use of natural resources; (vi) promote the conservation of materials and resources; (vii) reduce waste; and (viii) create a healthy indoor living environment.

The purpose of this Part is to promote the construction and renovation of “green” or “sustainable” residential buildings by providing incentives.

Section 508.2 prescribes definitions for the various technical requirements included in the building standards. In addition, substantial renovations is defined to mean significant improvements or restorations to, or substantial replacement of, materials, systems, or components of, a residential building, which shall include installation or replacement necessary to effect aligned, continuous, and complete air and thermal barriers and must include installation or replacement, of two of the three following building systems: electrical; heating, ventilation, and air conditioning; and plumbing.

Section 508.3 prescribes the eligibility requirements. An Owner is eligible for a Program incentive, upon submission of a complete Application for a structure meeting the green residential building standards and is either a new residential building that has completed construction or an existing residential building that has completed substantial renovation and has received a Certificate of Occupancy or Certificate of Completion, or other comparable documentation, on or after January 1, 2010, but before October 31, 2013.

Section 508.4 prescribes the Green Residential Building Standards. For purposes of the Program, green residential building standards shall mean the use of design and building techniques sufficient: (a) (1) to receive a second level or higher Leadership in Energy and Environmental Design (LEED) certification using the LEED for Homes Rating System, or using the LEED 2009 for New Construction and Major Renovations; or (2) to receive a second level or higher level certification using the National Green Building Standard - ICC 700-2008 (NGBS); and (b) (1) to achieve at least 500 kilowatt hour (kWh) annual electrical savings per dwelling unit, by installing equipment, lighting and household appliances meeting or exceeding the minimum efficiency standards set forth in the regulations and which exceed applicable minimum efficiency standards prescribed in 10 Code of Federal Regulations (CFR) Part 430, for CFLs and other lighting fixtures and lamps in high usage areas, including primary living spaces, finished basements, walk-in closets, and outdoor areas, but excluding non-walk-in closets and unfinished basements; any dishwashers; refrigerators, refrigerator-freezers, and freezers; furnace(s) and heat pumps, and central air conditioners.

Section 508.5 prescribes additional requirements for residential buildings of not more than 3 stories, containing 4 or fewer dwelling units: energy efficiency specifications and performance specifications. Such residential buildings must achieve either an Expanded Home Energy Rating System (HERS) Score of 86 or higher or a HERS Index of 70 or lower, using a rating software tool that has been approved by the Authority. Minimum efficiency requirements are also prescribed for ceiling fans, light kits, central air conditioners, domestic water heaters, heat pumps, furnaces, and ventilation fans.

Performance specifications are also prescribed with respect to the building envelope, duct leakage, and automatically controlled mechanical ventilation systems.

Section 508.6 prescribes the Program Incentives, subject to the availability of funds:

Program Incentive by Number of Dwelling Units
Number of Dwelling Units	Program Incentive Award/ Qualified Occupied Sq. Ft.	Maximum Program Incentive Award
1	$3.75/sq. ft.	$5,125
2	$3.75/sq. ft.	$6,125
3	$3.75/sq. ft.	$7,125
4	$3.75/sq. ft.	$8,125
5	$3.75/sq. ft.	$8,875
6	$3.75/sq. ft.	$9,625
7	$3.75/sq. ft.	$10,375
8	$3.75/sq. ft.	$11,125
9	$3.75/sq. ft.	$11,875
10	$3.75/sq. ft.	$12,625
11	$3.75/sq. ft.	$13,375

No Owner may receive more than one hundred twenty thousand dollars in Program incentive payments during any calendar year.

Section 508.7 prescribes the inspection and compliance procedures. Inspections are required with respect to combustion boilers and furnaces, that at least 500 kilowatt hour (kWh) annual electrical savings per dwelling unit are achieved or that only equipment, lighting, and household appliances meeting or exceeding the minimum efficiency standards required by Section 508.4 are installed; that a Technician determines if all minimum LEED or NGBS measures required to be installed prior to installation of drywall or interior wall surfaces or prior to re-enclosure on insulated building cavities have been installed; if air sealing measures are complete, if insulation is aligned properly within the air barrier, and if the air barrier and thermal envelope are continuous; if insulation is installed in the building envelope and uniformly fills each cavity without gaps, voids, or compressions, has a continuous air barrier in contact with its surface, and is in substantial contact with either the interior or exterior sheathing material; and determine the number of LEED or NGBS points attributable to foundation and framing materials; insulation; windows; doors; heating, ventilating, and air conditioning system; plumbing system; and site planning and preparation construction techniques used, including clearing, grading, soils management, and erosion and sedimentation control; and to efficient use of natural resources, conservation of materials and resources, waste reduction, installation of environmentally responsible products, including, but not limited to, interior finish materials and trim, including paints and coatings; cabinets, casework, and carpets; yearly heating, ventilation, and air conditioning and hot water heating equipment efficiency; household appliances and lighting efficiency; and plumbing fixture efficiency.

For a newly constructed residential building of 3 or fewer stories containing 4 or fewer dwelling units (not including a manufactured home or modular home), after construction of the building envelope is complete and after installation of all heating, ventilating and, if applicable, central air conditioners and associated pipes and ducts, a Technician must inspect such residential building to determine if the energy efficiency specifications and performance specifications prescribed by Section 508.5 have been met.

For all newly constructed residential buildings, a Technician must determine if air sealing measures are complete, the insulation is aligned properly with the air barrier; the air barrier and thermal envelope are continuous; determine if insulation is installed in the building envelope and uniformly fills each cavity without gaps, voids, or compressions, has a continuous air barrier in contact with its surface, and is in substantial contact with either the interior or exterior sheathing material; and determine if factory-installed measures qualify for LEED or NGBS points, including measures prescribed by Section 508.5. At the site of permanent installation of the various types of residential buildings, a Technician must determine if minimum LEED or NGBS requirements and the minimum site development activities with respect to the foundation and field-completed framing materials; heating, ventilating, and air conditioning system; plumbing system; and site preparation construction techniques used, including clearing, grading, soils management, and erosion and sedimentation control have been met; and, for components and seams not inspected at the manufacturing factory, determine if air sealing measures are complete, the insulation is aligned properly with the air barrier, and thermal envelope are continuous; and excluding measures inspected at the manufacturing factory, determine if any additional energy efficiency and performance specifications prescribed by Section 508.5 have been met.

For a substantially renovated residential building, a Technician must, after any removal or replacement of electrical, plumbing, or heating, ventilation, and air-conditioning systems, and after any removal of interior wall surfaces but prior to re-enclosure of insulated building cavities determine if all minimum LEED or NGBS measures required to be installed prior to re-enclosure of insulated building cavities have been met; determine if air sealing measures are complete, the insulation is aligned properly with the air barrier; and the air barrier and thermal envelope are continuous; determine if insulation, if installed in the building envelope, uniformly fills each cavity without gaps, voids, or compressions, has a continuous air barrier in contact with its surface, and is in substantial contact with either the interior or exterior sheathing material; determine if the energy efficiency specifications and performance specifications prescribed by Section 508.5 have been met, if applicable; and determine the number of LEED or NGBS points attributable to, including but not limited to, the following: repair or replacement of foundation and framing materials; windows; doors; electrical; heating, ventilating, and air conditioning systems; and plumbing systems. After re-enclosure of insulated building cavities, and any installation or replacement of flooring, household appliances, heating, ventilation, and air conditioning equipment, plumbing, and electrical wiring, determine if all minimum LEED or NGBS requirements have been met, and the number of LEED or NGBS points attributable to efficient use of natural resources, conservation of materials and resources, waste reduction, installation of environmentally responsible products, including, but not limited to, interior finish materials and trim, including paints and coatings; cabinets, casework, and carpets; and yearly heating, ventilation, and air conditioning and hot water heating equipment efficiency; household appliances and lighting efficiency; and plumbing and irrigation fixture efficiency.

Section 508.8 prescribes builder and Technician training and qualifications. A Technician is an individual who has at least 12 hours of design or installation training by an accredited education institution or a professional builders association or affiliate, or other comparable and Authority approved training course, in one or more of the following: site planning and development for building green; heating systems, cooling systems, creating healthful indoor air quality environments; building envelopes, building materials; water use reduction techniques, green construction techniques, multi-family green construction techniques, multi-family energy analysis, building energy analysis, energy modeling and building performance testing; has professional experience with respect to the construction or substantial renovation of a residential building meeting these green residential building standards within the last 3 years and has participated, or agrees to participate, in at least 15 hours of training every 2 years since completion of such construction or substantial renovation; has one year management and supervisory builder experience in green residential building construction; or has 5 years of field experience in green or sustainable residential construction, or in a combination of both.

A builder must have 15 hours of green building training by an accredited education institution or a professional builders association or affiliate, or other comparable and Authority-approved training course, which shall include a review of the National Green Building Standard or LEED Rating Systems and one or more of the following: site planning and development for building green, principles of energy, water and resource efficiency; indoor air and environmental quality; building performance and building performance testing; or is the builder of record for constructing residential buildings that have met the green residential building standards meeting this Part for at least 2 years or is the builder of record for constructing a minimum of two residential buildings meeting the requirements of this Part; and has agreed to participate, and participates, in at least 8 additional hours of green building or energy efficiency training by an accredited education institution or a professional builders association or affiliate, or other Authority-approved comparable organization for every 2 years of Program participation.

Section 508.9 prescribes the process for submitting an application in order to receive a Program incentive and requires documentation showing compliance with the regulations.

Section 508.10 lists exceptions to specific requirements contained in this Part that may be obtained from the Authority on a limited and case-by-case basis, if compliance would be inconsistent with public health or safety; would not be in compliance with Federal, State, or local law, rule or regulation, administrative or judicial order, or other such requirement; or, with respect to an historic building eligible for or listed on the State or National Register of Historic Places, would be incompatible or significantly inconsistent with the historic, aesthetic, cultural, or archeological character of the building.

Section 508.11 prescribes the Authority's reporting process on the Program and includes furnishing annual written reports to the Governor, the Temporary President of the Senate, and the Speaker of the Assembly concerning specified activities under this Part.

Section 508.12 lists the regulation's referenced materials and where they may be obtained.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 508.2, 508.4, 508.5, 508.7 and 508.12.

Text of rule and any required statements and analyses may be obtained from:

Jacquelyn L. Jerry, New York State Energy Research and Development Authority, 17 Columbia Circle, Albany, New York 12203, [phone], email: [e-mail]

Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

No changes to the Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement are required because the changes that have been made since the publication of the proposed regulations are typographical and grammatical corrections, clarifying and consistency changes, and technical amendments such as conforming titles and references to the titles and references requested by, or consistent with, the publisher’s designations and allowing the purchase of energy efficient water heaters more closely aligned with market availability.

Assessment of Public Comment

1. Section 508.5(b)(2)(ii) of the proposed regulations states that air leakage from ducts and air handling equipment in conditioned space must be 3 air changes per hour (ACH) or less, but new homes constructed by builders can often have less than half an ACH, and the building airflow standard (BAS) as stated by the Building Performance Institute (BPI) is 0.35 ACH. In the Home Performance with ENERGY STAR® residential program few buildings have more than 3 ACH, and ACH is often reduced post-project to less than 1 ACH. A more aggressive target for air leakage reduction at least for new buildings of less than 4 units is recommended.

Response: The 0.35 ACH Building Airflow Standard referenced from the Building Performance Institute (BPI) is the minimum building air leakage rate at natural (atmospheric) air pressure for existing residential buildings undergoing energy-efficiency retrofits.

The three air changes per hour (3 ACH50) maximum leakage requirement is applicable to residential buildings with three or fewer stories and 1-4 dwelling units. It applies only when the ducts and air handling equipment are located within the building's conditioned space, and is measured while the building is depressurized to 50 Pascals with respect to outside air pressure using a blower door. This requirement is consistent with both the Federal ENERGY STAR® Homes Program and the New York ENERGY STAR® Homes (NYESH) Program. In addition, a menu of options can be used to meet the energy efficiency requirements thus allowing an Owner to tailor construction techniques based on individual needs.

2. Section 508.5(b)(1) The proposed regulations prescribe 5 Air Changes Per Hour (ACH) at 50 Pascals of pressure (5 ACH 50) as a requirement for building envelope air leakage. This allows too much air leakage, and some buildings are tighter. Basements in existing homes are typically unconditioned or partially conditioned, generally not well insulated, and poorly air-sealed from the rest of the building. A basement cannot be separated from the house and should be considered conditioned, which increases the total air volume in the house, typically by ½ to 1/3. This makes the current standard for tightness measured in ACH inaccurate. A more accurate measurement would be cubic feet per minute (cfm) at 50 Pascals per square foot (sf) of living space, where an unfinished basement is not "living space," even though it may be "conditioned space." A tight building could then be defined as less than or equal to 0.8 cfm50/sf, an average building as less than or equal to 1 cfm50/sf, and a leaky building as anything over 1 cfm50/sf.

Response: The Program applies to the construction of new and substantially renovated residential buildings. The Authority assumes that this comment primarily relates to substantially renovated residential buildings, but these buildings must also meet LEED or NGBS certification requirements as well as the energy efficiency requirements of newly constructed structures, so that the residential building will be well insulated and air-sealed at completion. Further, neither the New York State Residential Building Code, nor the guidelines for Residential Energy Services Network's (RESNET's) Home Energy Rating System (HERS) allow the use of "living space" for energy use evaluations of a residential building (both refer to "conditioned space" for this purpose). In addition, the 5 ACH50 requirement is consistent with the Federal ENERGY STAR® Homes Program and the NYESH Program.

Section 508.4(b)(1)(4) Heating, ventilation, and air-conditioning (HVAC) equipment should not be installed in garages or in attics unless the space is conditioned space.

The Authority agrees that this is one technique that may increase the energy efficiency of residential buildings. However, this is not required by the New York State Residential Building Code, the NYESH Program, LEED, or NGBS.

3. General. Commenter operates a home performance contracting company that participates in the Home Performance with ENERGY STAR® Program, and is concerned that the proposed regulations take market-based Comprehensive Home Assessment work away from small contractors. The commenter also states that Davis-Bacon wage regulations would not serve the home performance contracting industry in the New York City metropolitan area.

Response: These comments appear to apply to the Green Jobs - Green New York Act of 2009. Accordingly, no changes were made as a result of the comment.

4. Section 508.4 Change this section to read:

"For purposes of the Program, green residential building standards shall mean the use of design and building techniques "leading to award certification from an approved third party rating system including" [sufficient]:

(a)(1) [to receive] a second level or higher LEED certification using the LEED for Homes Rating System, or using the LEED for New Construction Rating System; or

(2) [to receive] a second level or higher level certification using the NGBS; and

"(b) meets all requirements of and attains ENERGY STAR® Certification; and"

Response: The Authority has revised Section 508.4 to make clear that a certification must be received.

The suggested language "…from an approved third party rating system including" is unnecessary since the process for receiving a certification is prescribed by LEED and NGBS, they both include a third-party rating system.

The specific efficiency requirements for appliances and lighting established by the Federal ENERGY STAR® program are included in the proposed regulations. However, the Program is to be offered Statewide, and the NYESH Program, which provides ENERGY STAR® certification, is available only in utility service territories where the System Benefits Charge is assessed.

Section 508.7 Change this section to read:

An Owner of a residential building being newly constructed or a residential building undergoing substantial renovation shall have such residential building inspected by a Technician, "of appropriate background for each inspection," and a written record of such inspections obtained by such Owner from such Technician, during and after such construction or renovation.

Response: Since LEED and NGBS certifications must be obtained, and LEED and NGBS determine who is qualified to perform their required inspections as a Technician, this change is not needed. In addition, the Technician is not required to conduct all inspections, but may verify compliance from tests performed by other professionals.

5. Section 508.5(a)(2) Clarify that ceiling fan requirements are applicable at the time of the inspection/rating/closing so that if the Owner modifies the residential building after completion, this does not affect eligibility retroactively.

Response: The Authority agrees that, under the proposed regulations, compliance with ceiling fan requirements is determined at the time of inspection by the Technician and a subsequent Owner is not precluded from replacing a ceiling fan after inspection, nor would such action retroactively affect eligibility. Section 508.5(a)(3) It is not reasonable to purchase water heaters that meet the calculated peak hour demand within one-to-two gallons. First, water heaters are available only in select sizes/performances. Second, more efficient equipment is available in even fewer sizes and the greater efficiency should more than offset the sizing benefits. Third, client needs may dictate varied capacity. Fourth, typical boiler packages would use a high-efficiency indirect water heater and the price for larger or smaller units will vary significantly based on what the distributors stock, with minimal benefit.

Response: The Authority agrees that water heaters are only available in select sizes and has added language to the proposed regulations stating that, if it is not feasible to size the domestic hot water heating system within one to two hours of calculated peak hour demand, based on the Owner's needs, then the next larger capacity may be used. The Authority's research indicates that a wide range of energy efficient systems are available throughout New York State, but that the proposed additional language should mitigate this concern as well. Although prices may be somewhat higher for more efficient equipment, incentives are available through this Program to help offset the higher costs in addition to the homeowner receiving energy cost savings from installation of the more efficient equipment.

Section 508.5(4) Have a requirement that the temperature of the water heater be set to the minimum temperature possible to provide the necessary capacity.

Response: The minimum efficiency factors provided in the proposed regulations are consistent with the requirements of the NYESH Program.

Section 508.5(4) Clarify between tank, direct vent tank, power vent tank, super-high efficiency tank, tankless, and indirect units.

Response: Section 508.5(4) is consistent with the requirements of the Federal ENERGY STAR® Homes Program and the NYESH Program and establishes minimum energy factors for all types of domestic water heaters.

Section 508.5(5) Provide additional credit for sealed combustion appliances and for condensing and/or modulating gas boilers, not just based on AFUE.

Response: This section of the proposed regulations merely establishes the minimum efficiency requirements. Section 508.5(6) Mechanical vent fans that are always on (remote switch) should be an approved "automatic control." If a fan runs continuously, the circuit breaker should be acceptable.

Response: Under ASHRAE Standard 62.2-2007, the designated compliance standard, when a mechanical vent fan is always on, it can qualify as having an "automatic control," if there is a variable speed control, a multi-speed fan, or a timer to vary the run-time; a circuit breaker is not an acceptable control. Section 508.5(6)(b)(3) The "readily available and accessible override control" should be clarified as to purpose.

Response: The Authority agrees and has revised the regulation to state that the purpose of the "readily available and accessible override control" is to "allow the unit to be easily shut off for servicing or replacement."

Section 508.7 A statement from the manufacturer of a manufactured home, with photos, should be sufficient evidence of items that will not be possible to visually inspect on site by the third-party reviewer.

For inspections done in a modular factory, inspections done by an individual qualified to perform inspections under the New York Department of State approved Quality Control procedures should also be qualified for Program inspections. Where a practice is a standard practice as part of the DOS approved procedures, such as sealing penetrations in the plates, a written statement from the manufacturer should qualify as an inspection.

Response: A goal of the Program is to provide third-party review of installed measures. The intent is to ensure that the Program's inspection requirements are consistent with LEED and NGBS requirements so that certification is possible. The Authority will work with LEED and NGBS program administrators to ensure consistency of Technician review. In addition, recognizing that the inspection procedures will be different for modular and manufactured structures, the proposed regulations have also been clarified to delineate the type of inspections that need to occur at the manufacturing facility and those inspections that can occur after the residential building is permanently sited.

If the Department of State quality control individual meets the qualification of a Technician, the proposed regulations do not prohibit such an individual from serving in both capacities.

Section 508.8 The NAHB Certified Green Professional should be considered a qualification under the Builder and Technician training section.

Provide a central registration or certificate issued to applicable Technicians to simplify documentation and provide the Owner confidence that the relevant individual is qualified under the Program.

Response: The Authority is not referencing specific courses or certifications required of builders and Technicians in order to accommodate new educational and apprenticeship opportunities that may be developed over the term of the Program. A list of educational and training courses that meet the subject matter and training requirements will be provided in the Program Guidelines and updated as appropriate.

The Authority will also be maintaining a list of Technicians and builders that meet Program requirements and this list will be made available to the public. The Authority expects that NAHB Certified Green Professionals will be included on both lists.

Section 508.9 If the application is incomplete, allow additional time to provide the necessary documentation.

Response: The Authority will inform the Owner within 45 days of receipt of the original application what is missing and needed to complete the Application. If funds are available to pay an incentive once the Application is complete, an incentive will be paid.