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                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           12
 
                               Third Extraordinary Session
 
                   IN ASSEMBLY
 
                                    November 29, 2010
                                       ___________
 
        Introduced by COMMITTEE ON RULES -- (at request of the Governor) -- read
          once and referred to the Committee on Ways and Means
 
        AN  ACT  to  amend  the energy law and the executive law, in relation to
          updating the state energy conservation construction  code  to  address
          the requirements of the American Recovery and Reinvestment Act of 2009
 

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1.  Section 11-102 of the energy law, as added by chapter  397
     2  of  the laws of 1978, subdivision 3 as amended, subdivisions 4, 5, 6 and
     3  7 as renumbered and subdivisions 8 and 9 as added by chapter 516 of  the
     4  laws of 1984, is amended to read as follows:
     5    §  11-102. Definitions.  For the purposes of this article, the follow-
     6  ing words and phrases shall have the following meanings unless a differ-
     7  ent meaning is plainly required by the context:
     8    1. "Addition." An extension or increase in the conditioned space floor
     9  area or height of any building.
    10    2. "Alteration." Any renovation, reconstruction or renewal of or to an

    11  existing building, or portion thereof, other than an addition. The  word
    12  "alteration"  shall  include  any  change  in equipment that involves an
    13  extension, addition or change to the arrangement, type or purpose of the
    14  original installation.
    15    3. "ASHRAE 90.1-2007." ANSI/ASHRAE/IESNA Standard 90.1-2007,  entitled
    16  "Energy  Standards for Buildings Except Low-Rise Residential Buildings,"
    17  published by American Society of Heating, Refrigerating  and  Air-Condi-
    18  tioning Engineers, Inc.
    19    4.  "Building."  Any  [combination  of  materials, whether portable or
    20  fixed, having a roof to form a structure which is heated  or  cooled  in
    21  the  normal  course  affording shelter for persons, animals or property,

    22  including any equipment therein, provided however that the term  "build-
    23  ing"  shall not include any structure which is heated and cooled without
    24  the use of electricity or fossil fuel. The word "building" shall include

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD12237-03-0
        A. 12                               2

     1  "factory manufactured homes" as defined in  section  four  hundred-c  of
     2  article  eighteen-B of the executive law] structure used or intended for
     3  supporting or sheltering any use or occupancy or for  affording  shelter

     4  to persons, animals or property, including any equipment therein.
     5    [2.]  5.  "Code."  The  state  energy  conservation  construction code
     6  provided for in this article, or any portion thereof,  any  modification
     7  of or amendments thereto.
     8    [3.  "Construction."  The construction of a new building, or any addi-
     9  tion to, or substantial renovation of, an existing building.
    10    4.] 6. "Commercial building."  Any building that is not a  residential
    11  building.
    12    7. "Conditioned space." An area or room which is within a building and
    13  which  is (a) being heated or cooled, (b) contains uninsulated ducts, or
    14  (c) has a fixed opening directly into an adjacent conditioned space.

    15    8. "Equipment." Plumbing, heating, electrical,  lighting,  insulating,
    16  ventilating,  air  conditioning, and refrigerating equipment, elevators,
    17  escalators, and other mechanical additions or installations but does not
    18  include any items constituting an industrial or commercial process.
    19    [5.] 9. "Historic building."  Any building that is (a) listed  on  the
    20  national register of historic places or on the state register of histor-
    21  ic  places,  (b) determined by the commissioner of parks, recreation and
    22  historic preservation to be eligible for listing on the  state  register
    23  of  historic places, (c) determined by the commissioner of parks, recre-
    24  ation and historic preservation to be  a  contributing  building  to  an

    25  historic district that is listed or eligible for listing on the state or
    26  national  registers  of  historic places, or (d) otherwise defined as an
    27  historic building in regulations adopted by the  state  fire  prevention
    28  and building code council.
    29    10.  "IECC"  or "International Energy Conservation Code." The Interna-
    30  tional Energy Conservation Code, published by International  Code  Coun-
    31  cil, Inc.
    32    11.  "Local  government."  Any  village, town (outside the area of any
    33  incorporated village) or city.
    34    12. "Municipality." Any county, city, town, village,  school  district
    35  or district corporation.
    36    [6.] 13. "Owner." The owner or owners of the freehold of a premises or

    37  any  lesser  estate  therein,  a  mortgagee  or  vendee in possession, a
    38  contract vendee, assignee of rents, receiver, executor, trustee, lessee,
    39  or any other person, firm or corporation in control of a building.
    40    [7.] 14. "Residential building." Any building which is designed or  is
    41  to  be used primarily as a dwelling or household as defined by the state
    42  fire prevention and building code council, including any  factory  manu-
    43  factured  home  as defined in subdivision eight of section three hundred
    44  seventy-two of the executive law and  any  mobile  home  as  defined  in
    45  subdivision  thirteen of section three hundred seventy-two of the execu-
    46  tive law.
    47    [8. "Substantial renovation." The alteration of any existing  building

    48  in which more than fifty percent of any building subsystem is replaced.
    49    9. "Subsystem."  A  building  assembly  made  up of various components
    50  which serve a specific function, including but not limited  to  exterior
    51  walls,  roof and ceiling, floors, lighting, piping, ductwork, and equip-
    52  ment as defined in subdivision four of this section.]
    53    15. "Uniform code." The New York state  uniform  fire  prevention  and
    54  building  code adopted, and as may be amended, pursuant to article eigh-
    55  teen of the executive law.
        A. 12                               3
 
     1    § 2. Subdivision 1 of section 11-103 of the energy law, as amended  by
     2  chapter 292 of the laws of 1998, is amended to read as follows:

     3    1.  (a)  [The  code  relating to the construction of all buildings, or
     4  classes of buildings in  the  state,  for  purposes  of  minimizing  the
     5  consumption of energy and providing for the efficient utilization of the
     6  energy  expended  in  the  use  and occupancy of buildings is continued.
     7  Such code shall be at least equal to the standards specified in standard
     8  90-75 of the American Society of Heating, Refrigerating and  Air  Condi-
     9  tioning  Engineers,  Inc., entitled "Energy Conservation in New Building
    10  Design", known hereafter as ASHRAE Standard 90-75; and to the  reference
    11  standards upon which the ASHRAE Standard 90-75 is based; provided howev-
    12  er,  that  in addition any portion of the code which applies to residen-

    13  tial construction shall be at least equivalent to the  requirements  set
    14  forth in the public service commission opinions, PSC 76-16 (C) dated May
    15  fifteenth  and sixteenth, nineteen hundred seventy-seven, and appendices
    16  thereto. The code shall apply to all buildings for which application for
    17  a building permit is made and plans are filed in this state on or  after
    18  January  first,  nineteen  hundred seventy-nine, which date shall be the
    19  effective date of the code.
    20    (b) The rules and regulations relating specifically to the substantial
    21  renovation of all buildings, or classes of buildings in the  state,  for
    22  purposes  of  minimizing the consumption of energy and providing for the
    23  efficient utilization of the energy expended in the use and occupancy of

    24  such buildings are continued.  Such rules and  regulations  shall  apply
    25  only  to  that  portion  of  a building subsystem or subsystems which is
    26  replaced; provided that fifty percent or more of such building subsystem
    27  or subsystems is replaced.] The state energy  conservation  construction
    28  code  adopted by the state fire prevention and building code council and
    29  consisting of a building energy code for residential buildings  through-
    30  out  the  state  and  a  building  energy  code for commercial buildings
    31  throughout the state is continued until amended or a new code is adopted
    32  and effective.
    33    (b) The code shall apply to the construction of any new building.  The

    34  code shall also apply to an addition to, and alteration of, any existing
    35  building  or building system; provided, however, that the code shall not
    36  be interpreted to require any unaltered portion of the existing building
    37  or building system to comply with the code.  The code shall not apply to
    38  the following provided that the  energy  use  of  the  building  is  not
    39  increased:
    40    (1) storm windows installed over existing fenestration;
    41    (2) glass only replacements in an existing sash and frame;
    42    (3)   existing   ceiling,   wall  or  floor  cavities  exposed  during
    43  construction provided that these cavities are filled with insulation;
    44    (4) construction where the existing roof, wall or floor cavity is  not
    45  exposed;

    46    (5) reroofing for roofs where neither the sheathing nor the insulation
    47  is exposed; roofs without insulation in the cavity and where the sheath-
    48  ing  or insulation is exposed during reroofing shall be insulated either
    49  above or below the sheathing;
    50    (6) replacement of existing doors that separate conditioned space from
    51  the exterior shall not  require  the  installation  of  a  vestibule  or
    52  revolving door, provided, however, that an existing vestibule that sepa-
    53  rates such conditioned space from the exterior shall not be removed;
    54    (7) alterations that replace less than fifty percent of the luminaires
    55  in a space, provided that such alterations do not increase the installed
    56  interior lighting power;

        A. 12                               4
 
     1    (8)  alterations  that  replace  only  the bulb and ballast within the
     2  existing luminaires in a space provided that  the  alteration  does  not
     3  increase the installed interior lighting power; and
     4    (9)  any  other  exception  adopted  by  the state fire prevention and
     5  building code council provided that such exception will not prevent  the
     6  attainment of the compliance goals set forth in section 410(2)(c) of the
     7  American Recovery and Reinvestment Act of 2009.
     8    §  3. Subdivision 2 of section 11-103 of the energy law, as amended by
     9  chapter 292 of the laws of 1998, is amended to read as follows:
    10    2.  The state fire prevention and building code council is authorized,
    11  from time to time as  it  deems  appropriate  and  consistent  with  the

    12  purposes  of  this article, to review and amend the code, or adopt a new
    13  code, through rules and regulations provided that the code remains  cost
    14  effective  with  respect to building construction in the state. [The] In
    15  determining whether the code remains cost effective,  the  code  council
    16  shall [be deemed cost effective if] consider whether the cost of materi-
    17  als  and  their  installation to meet its standards would be equal to or
    18  less than the present value of energy savings  that  could  be  expected
    19  over  a  ten  year  period  in  the building in which such materials are
    20  installed. For residential buildings, the code shall meet or exceed  the
    21  then  most recently published International Energy Conservation Code, or

    22  achieve equivalent or greater energy savings; and for commercial  build-
    23  ings,  the code shall meet or exceed ASHRAE 90.1-2007, or achieve equiv-
    24  alent or greater energy savings.
    25    § 4. Subdivision 5 of section 11-104 of the energy law,  as  added  by
    26  chapter 516 of the laws of 1984, is amended to read as follows:
    27    5.  The code shall exempt from such uniform standards and requirements
    28  [property that is listed on the national register  of  historic  places,
    29  property  that  is  listed  on  the state register of historic places or
    30  property that is determined to be eligible  for  listing  on  the  state
    31  register by the commissioner of parks, recreation and historic preserva-
    32  tion]  any  historic  building  as  defined  in  section  11-102 of this

    33  article.
    34    § 5. Section 11-105 of the energy law, as amended by  chapter  292  of
    35  the laws of 1998, is amended to read as follows:
    36    §  11-105.  Limitation of application.  Notwithstanding the provisions
    37  of subdivision one of section 11-103 of this  article,  the  state  fire
    38  prevention  and  building  code  council,  by  regulation, may limit the
    39  application of any portion of the code  so  as  to  include  or  exclude
    40  classes  or types of buildings, according to the use thereof or the cost
    41  effectiveness of the code with respect to any  such  class  or  type  of
    42  building,  or  according  to any other distinction as may make differen-
    43  tiation or separate classification or regulation  necessary,  proper  or
    44  desirable,  [so long as any] provided however, that such limitation: (1)

    45  is consistent with the purposes of this article  and  the  criteria  set
    46  forth  in  section  11-104 of this article, (2) does not render the code
    47  inconsistent with the energy savings requirements of subdivision two  of
    48  section  11-103 of this article, and (3) whether considered individually
    49  or collectively with other limitations, will not prevent the  attainment
    50  of  the  compliance goals set forth in section 410(2)(c) of the American
    51  Recovery and Reinvestment Act of 2009.
    52    § 6. Section 11-107 of the energy law, as amended by  chapter  517  of
    53  the laws of 1984, is amended to read as follows:
    54    §  11-107.  Administration  and  enforcement.    Except  as  otherwise
    55  [expressly provided herein] provided in regulations adopted pursuant  to

    56  section  three  hundred  eighty-one  of  the executive law, the adminis-
        A. 12                               5
 
     1  tration and enforcement of the provisions of the code [within any  muni-
     2  cipality]  with  respect  to any building shall be the responsibility of
     3  that governmental entity which is responsible for the administration and
     4  enforcement of the provisions of the [building construction code or the]
     5  uniform   code   or   other  applicable  fire  prevention  and  building
     6  construction code [applicable within such municipality] with respect  to
     7  such  building.    The  code  shall  be administered and enforced in the
     8  manner prescribed by applicable local law or ordinance [or the] consist-

     9  ent with the standards and procedures adopted pursuant to section  three
    10  hundred  eighty-one  of  the  executive  law [for the administration and
    11  enforcement  of  the  state  uniform  fire   prevention   and   building
    12  construction code].
    13    §  7. Subdivision 1 of section 11-108 of the energy law, as amended by
    14  chapter 516 of the laws of 1984, is amended to read as follows:
    15    1. Any person having been served with an order to remedy  a  violation
    16  of the code pursuant to the provisions of any local law or ordinance, or
    17  the  procedures  adopted pursuant to section three hundred eighty-one of
    18  the executive law [for the administration and enforcement of  the  state
    19  uniform  fire prevention and building construction code], who shall fail

    20  to comply with such order within thirty days after such service or with-
    21  in the time fixed by such order for compliance,  whichever  is  greater,
    22  and any owner, builder, architect, engineer, contractor or subcontractor
    23  taking  part or assisting in the construction or use of any building who
    24  shall knowingly violate any applicable provisions of  the  code  or  any
    25  lawful  order  of  the  governmental entity responsible for the adminis-
    26  tration and enforcement thereof shall be punishable by  a  fine  of  not
    27  more  than [five hundred] one thousand dollars or by imprisonment of not
    28  more than thirty days in jail, or both.
    29    § 8. Section 11-109 of the energy law, as added by chapter 397 of  the
    30  laws  of  1978,  subdivision  1 as amended by chapter 516 of the laws of
    31  1984 and subdivision 2 as amended by chapter 292 of the laws of 1998, is

    32  amended to read as follows:
    33    § 11-109. Municipal regulations.  1. Nothing in this article shall  be
    34  construed  as  abrogating  or impairing the power of any municipality or
    35  the secretary of state to enforce the provisions of any  local  building
    36  regulations   or   the   state  uniform  fire  prevention  and  building
    37  [construction] code, provided that such local building  regulations  are
    38  not  inconsistent  with  the code. Nor shall anything in this article be
    39  construed as abrogating or impairing the power of  any  municipality  to
    40  promulgate  a local energy conservation construction code more stringent
    41  than the code, including but not limited to requirements  for  mandatory
    42  energy efficiency testing and ratings.
    43    2.   Any   municipality  which  adopts  a  local  energy  conservation

    44  construction code in accordance with this section shall file a  copy  of
    45  such  code  and  any amendments or revisions thereof with the state fire
    46  prevention and building code council within thirty days after  promulga-
    47  tion  or  adoption  of such local code[,] or any amendments or revisions
    48  thereof.  [The failure to comply with the provisions of this subdivision
    49  shall not impair or otherwise affect the validity of such local code  or
    50  amendment  or  revision] If the municipality files such copy within such
    51  thirty day time period, the municipality may enforce  such  local  code,
    52  amendment  or  revision  until  and unless the state fire prevention and
    53  building code council shall determine that such local code, amendment or

    54  revision is not more restrictive than  the  code.  If  the  municipality
    55  fails  to file such copy within such thirty day time period, the munici-
    56  pality may not enforce such local code, amendment or revision until  and
        A. 12                               6
 
     1  unless  the state fire prevention and building code council shall deter-
     2  mine that such local code, amendment or  revision  is  more  restrictive
     3  than the code.
     4    §  9  Subdivision 2 of section 11-110 of the energy law, as amended by
     5  chapter 292 of the laws of 1998, is amended to read as follows:
     6    2. Agencies and municipalities of the state shall provide  the  secre-
     7  tary of state with such cooperation and assistance as he or she may deem
     8  necessary to carry out the purposes of this article.

     9    §  10.  The section heading and subdivisions 1 and 2 of section 381 of
    10  the executive law, as added by chapter 707 of the laws of 1981  and  the
    11  closing paragraph of subdivision 1 as amended by chapter 159 of the laws
    12  of 2007, are amended to read as follows:
    13    Administration  and  enforcement  of  the  New York state uniform fire
    14  prevention and building code and the New York state energy  conservation
    15  construction  code.  1.  The  secretary shall promulgate rules and regu-
    16  lations prescribing minimum standards for administration and enforcement
    17  of the uniform fire prevention and building code promulgated in  accord-
    18  ance  with sections three hundred seventy-seven and three hundred seven-
    19  ty-eight of this article and the state energy conservation  construction

    20  code  adopted  in accordance with article eleven of the energy law. Such
    21  rules and regulations shall become effective not later  than  the  first
    22  day  of  January,  nineteen  hundred  eighty-five.  The  secretary shall
    23  promulgate such regulations after public hearing and  after  considering
    24  reaction to initial administration and enforcement of the uniform build-
    25  ing  and  fire  prevention  code,  including  how local governments have
    26  organized to provide for such initial  administration  and  enforcement.
    27  Such  rules  and  regulations  shall  address  the nature and quality of
    28  enforcement and shall include, but not be limited to the following:
    29    a. frequency of mandatory inspections for compliance with the  uniform
    30  code and the state energy conservation construction code,

    31    b.  number  and  qualifications  of staff, including requirements that
    32  inspectors be certified pursuant to this chapter,
    33    c. required minimum fees for administration and enforcement,
    34    d. adequacy of inspections,
    35    e. adequacy of means for insuring compliance with the uniform code and
    36  the state energy conservation construction  code,  including  provisions
    37  intended  to  achieve  compliance  with  the  state  energy conservation
    38  construction code consistent with the  compliance  goals  set  forth  in
    39  section 410(2)(C) of the American Recovery and Reinvestment Act of 2009,
    40    f.  establishment  of a procedure whereby any provision or requirement
    41  of the uniform code may be varied or  modified  in  cases  where  strict
    42  compliance  with  such  provision  or requirement would entail practical

    43  difficulties or unnecessary hardship or would otherwise be  unwarranted.
    44  Such  procedure  shall  be  designed to insure that any such variance or
    45  modification shall not substantially  affect  adversely  provisions  for
    46  health,  safety  and security, and that equally safe and proper alterna-
    47  tives may be prescribed. Requests for a variance shall be resolved with-
    48  in sixty days of the date of  application  unless  a  longer  period  is
    49  required for good cause shown, [and]
    50    g.  procedures  for  inspection  of certain classes of buildings based
    51  upon design, construction, ownership, occupancy or use,  including,  but
    52  not limited to, mobile homes, factory manufactured homes and state-owned
    53  buildings[.],
    54    h.  minimum  basic  training  and in-service training requirements for

    55  personnel charged with administration and enforcement of the state ener-
    56  gy conservation construction code; and
        A. 12                               7
 
     1    i. standards and procedures for measuring the rate of compliance  with
     2  the  state energy conservation construction code, and provisions requir-
     3  ing that such rate of compliance be measured on an annual basis.
     4    Nothing in the rules shall require or be construed to require regular,
     5  periodic inspections of (A) owner-occupied one and two-family dwellings,
     6  or  (B) agricultural buildings used directly and solely for agricultural
     7  purposes, provided, however that this  shall  not  be  a  limitation  on
     8  inspections conducted at the invitation of the owner or where conditions

     9  on  the  premises threaten or present a hazard to public health, safety,
    10  or welfare.
    11    2. Except as may be provided in regulations of the secretary  pursuant
    12  to  subdivision one of this section, every local government shall admin-
    13  ister and enforce the uniform fire prevention and building code and  the
    14  state  energy  conservation construction code on and after the first day
    15  of January, nineteen hundred  eighty-four,  provided,  however,  that  a
    16  local government may enact a local law prior to the first day of July in
    17  any  year  providing  that  it  will not enforce [the uniform code] such
    18  codes on and after the first day of January  next  succeeding.  In  such
    19  event the county in which said local government is situated shall admin-

    20  ister  and  enforce  [the  uniform  code]  such  codes within such local
    21  government from and after the first day of January next  succeeding  the
    22  effective  date  of such local law, in accordance with the provisions of
    23  paragraph b of subdivision five of this section unless the county  shall
    24  have enacted a local law providing that it will not enforce [the uniform
    25  code]  such codes within that county. In such event the secretary in the
    26  place and stead of the local government shall, directly or by  contract,
    27  administer  and  enforce the uniform code and the state energy conserva-
    28  tion construction code. A local government or  a  county  may  repeal  a
    29  local  law  which  provides  that it will not enforce [the uniform code]

    30  such codes and shall thereafter  administer  and  enforce  [the  uniform
    31  code]  such  codes as provided above.  [Local] Two or more local govern-
    32  ments may provide  for  joint  administration  and  enforcement  of  the
    33  uniform  code, the state energy conservation construction code, or both,
    34  by agreement pursuant to article five-G of the  general  municipal  law.
    35  Any  local  government may enter into agreement with the county in which
    36  such local government is situated to administer and enforce the  uniform
    37  code,  the  state energy conservation construction code, or both, within
    38  such local government. Local governments or counties may charge fees  to
    39  defray the costs of administration and enforcement.

    40    §  11.  This act shall take effect January 1, 2011; provided, however,
    41  that the state fire prevention and building code council and the  secre-
    42  tary  of  state are authorized and directed to adopt such regulations as
    43  deemed necessary and proper to implement this act, prior to such  effec-
    44  tive date.