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DEPARTMENT OF ENERGY
DEPARTMENT OF ENERGY
DIVISION 135
1.5 PERCENT FOR SOLAR ENERGYIN PUBLIC BUILDING CONSTRUCTION CONTRACTS
330-135-0010
Purpose
The purpose of these rules is to establish procedures to administer ORS 279C.527 through 279C.528 and Oregon Laws 2012 chapter 83 (SB1533), which require a contracting agency to include an appropriate green energy technology in the construction or major renovation of public buildings by spending an amount equal to at least 1.5 percent of the total contract price associated with that building.
Stat. Auth.: 2007
OL, Ch. 310
Stats. Implemented:
2007 OL, Ch. 310
Hist.: DOE
6-2007, f. 12-31-07, cert. ef. 1-2-08; DOE 15-2012, f. 12-27-12, cert. ef. 1-1-13
330-135-0015
Definitions
For the purpose of this division, the following definitions apply:
(1) “Agency” means a public body.
(2) "Building" means any structure used or intended for supporting or sheltering any use or occupancy, as defined in Section 202 of the 2010 Oregon Structural Specialty Code.
(3) "Contracting agency" means a public body authorized by law to conduct a procurement as defined in ORS 279A.010(1)(b).
(4) “Cost effective” means a higher estimated economic benefit when a comparison is made between an investment in green energy technology away from the site and at the site. The comparison must include, but is not limited to, the cost of green energy technology, the cost of energy transmission infrastructure back to the public building, the value of electrical energy produced, saved or used over the life of the system, and the value of thermal energy produced, saved or used over the life of the system.
(5) "Department" means the Oregon Department of Energy.
(6) "Director" means the Director of the Oregon Department of Energy.
(7) “Direct use” of geothermal energy means using the geothermal resource directly for space or water heating in a building without the assistance of a heat pump. For the purpose of these rules, direct use applications generally employ resource temperatures of at least 140°F.
(8) “Feasible” means a project capable of being done and that the site meets the agency’s preference for siting green energy technology.
(9) “Geothermal energy” means the energy from a geothermal source including, but not limited to, indigenous steam, hot water, hot brines, etc.
(10) “Green energy technology” has the definition given in Oregon Laws 2012, chapter 83 (SB 1533).
(11) “Not appropriate” means a determination of an adverse condition affecting an otherwise feasible project.
(12) “Public body” means state government bodies, local government bodies as defined in ORS 174.116, and special government bodies as defined in ORS 174.117.
(13) “Site” means a land parcel or a group of contiguous land parcels, controlled by the agency, on which a building either is or will be located.
(14) "Total contract price" means an estimated cost required to construct a building including building systems, interior finishes, site infrastructure within five feet of the building perimeter, connections to existing utilities, landscaping, and sidewalks and parking lots built for the immediate use of the building. It does not include the cost of major new utility infrastructure that needs to be brought to the site or wetland mitigation requirements.
(15) "Total solar resource fraction" (TSRF) means the percent of energy produced by a fixed axis solar energy system when compared to the annual performance of the same system with optimal tilt and orientation and no external shading.
[Publications: Publications referenced are available from the agency.]
Stat. Auth.:
2007 OL, Ch. 310
Stats. Implemented:
2007 OL, Ch. 310
Hist.: DOE
6-2007, f. 12-31-07, cert. ef. 1-2-08; DOE 15-2012, f. 12-27-12, cert. ef. 1-1-13
330-135-0018
Requirement for Inclusion of Green Energy Technology
(1) Agencies must spend an amount equal to at least 1.5 percent of the total contract price of an eligible public building project for the inclusion of green energy technology in the eligible public building.
(2) Agencies may defer expenditure of these funds under the conditions of OAR 330-135-0045 and 330-135-0050.
Stat. Auth.: ORS
469.040, 279C.528, OL 2012, Ch. 83, Sec.2 (SB 1533)
Stats. Implemented:
ORS 279C.527, 279C.528, OL 2012, Ch. 83, Sec.2 (SB 1533)
Hist.: DOE
15-2012, f. 12-27-12, cert. ef. 1-1-13
330-135-0020
Eligible Building Projects
(1) These rules apply to any permanent building(s) which will be owned, partially owned or controlled by an agency and which is either:
(a) Used by the public; or
(b) Enclosed by walls and roof to allow employees to use or occupy the building on a regular basis for a significant part of their work.
(2) Eligible public building projects are new capital construction projects for which the total contract price is $1,000,000 or more for a single building or a group of buildings on the same site and major renovations that exceed $1,000,000 and 50 percent of the insured value of the building.
(3) These rules apply to projects advertised, but if not advertised then building construction contracts entered into, on or after the effective date of this law.
(4) Public improvements that are not buildings are not required to comply with the provisions of these rules. This includes, but is not limited to:
(a) Group U occupancies as defined in Section 312 of the 2010 Oregon Structural Specialty Code.
(b) Motor pool lots, parking lots not associated with a building, highways, bridges, sewers, fishponds, fish ways, and similar non-architectural structures.
(c) Buildings that house public industrial processes where only a small portion of the square footage houses employees of the agency, such as: maintenance sheds, water and waste water facilities; including reservoirs, dams, conduit, pipe, pumps, wells, collection basins, pump stations, controls and other buildings primarily used for the purpose of water or waste water treatment.
[Publications: Publications referenced are available from the agency.]
Stat. Auth.:
2007 OL, Ch. 310
Stats. Implemented:
2007 OL, Ch. 310
Hist.: DOE
6-2007, f. 12-31-07, cert. ef. 1-2-08; DOE 15-2012, f. 12-27-12, cert. ef. 1-1-13
330-135-0025
Eligible Contract Price
(1) The 1.5 percent to be spent on green energy technology must be based on the total contract price.
(2) The total contract price that determines the amount to be spent on green energy technology must not be reduced by federal, state, or other incentives that may be available for the green energy technology.
(3) Any constitutionally, statutorily or contractually dedicated government funds for the building that have been determined to be unavailable for the installation of green energy technology may be excluded when determining eligible costs under this section.
(4) For buildings with a joint public-private ownership and occupancy, the 1.5 percent to be spent on green energy technology in the building must be pro-rated based on the agency's share of the ownership.
(5) For buildings that are being constructed or renovated with private funding but which are intended for use, operation, or ownership by an agency, the 1.5 percent to be spent on green energy technology in the building must include the privately-funded share of the construction contract.
(6) Parsing the project in order to avoid or reduce the level of compliance with ORS 279C.527 and 279C.528 and these rules is not permitted.
Stat. Auth.: 2007
OL, Ch. 310
Stats. Implemented:
2007 OL, Ch. 310
Hist.: DOE
6-2007, f. 12-31-07, cert. ef. 1-2-08; DOE 15-2012, f. 12-27-12, cert. ef. 1-1-13
330-135-0030
Eligible Green Energy Technologies and Performance Requirements
(1) Solar electric (photovoltaic), solar water heating, solar pool heating, and active solar space heating systems are to be installed in locations that have a total solar resource fraction (TSRF) of 75 percent or greater.
(2) Photovoltaic and geothermal electric systems must be separately metered to record electricity production.
(3) Geothermal systems that directly supply heat to the building system(s), or a passive solar thermal system, day lighting system or combined system must reduce the building’s baseline energy use by 20 percent or more, as demonstrated with whole building energy modeling prepared under the direction of a professional engineer.
(a) The baseline energy includes space heating, space cooling, fan, pump, domestic hot water, and lighting loads. Other equipment and process loads are excluded.
(b) The system(s) must be commissioned by a third-party commissioning agent to ensure design intent is met.
(c) To determine whether the system(s) reduces energy use by 20 percent, the baseline building model must follow the 2010 SEED Guidelines, Appendix L.
(A) For local or special government bodies, the baseline building must be modeled according to the requirements of the 2010 Oregon Energy Efficiency Specialty Code.
(B) For state government bodies, the baseline building must be modeled according to the requirements of the Proposed Building as defined in the 2010 SEED Guidelines, Appendix L.
(4) For the purpose of these rules, green energy technology does not include:
(a) Heat pumps that use water, groundwater or the ground as a heat source or heat sink; and
(b) Wind, biomass, hydro, wave, or other "indirect" forms of solar energy.
(5) Purchase of renewable energy credits (REC) does not constitute compliance with the requirements of ORS 279C.527 through ORS 279C.528 and Oregon Laws 2012, chapter 83.
Stat. Auth.: 2007
OL, Ch. 310
Stats. Implemented:
2007 OL, Ch. 310
Hist.: DOE
6-2007, f. 12-31-07, cert. ef. 1-2-08; DOE 15-2012, f. 12-27-12, cert. ef. 1-1-13
330-135-0035
Eligible Green Energy Technology Costs
(1) For photovoltaic systems, eligible costs include the PV modules, mounting structure and hardware, modifications to the building structure specifically to accommodate the solar energy system, associated electrical equipment, metering, labor and system commissioning. Costs for auxiliary distribution systems such as chargers in electric vehicle charging stations or energy storage system (batteries or other) do not qualify.
(2) For building integrated photovoltaic (BIPV) systems, eligible costs include the difference between the costs for the BIPV components and the costs of the conventional building components that are modified or replaced to accommodate the installation of the BIPV system components.
(3) For solar water heating and solar pool heating systems, eligible costs include the solar collectors, mounting structure and hardware, associated plumbing and controls, metering, labor, and system commissioning. Costs for backup systems that use conventional energy sources do not qualify.
(4) For active solar space heating systems, eligible costs include the solar collectors, mounting structure and hardware, associated plumbing and controls, metering, labor, and system commissioning. Costs for heat distribution systems, such as ductwork or radiant floors, or costs for backup systems that use conventional energy sources, do not qualify.
(5) For passive solar systems and day lighting systems, eligible costs include materials and labor costs that can be directly and exclusively attributed to the passive solar and day lighting system, the cost for modeling the building energy performance, and commissioning to ensure the system is functioning as intended.
(a) For passive solar systems eligible costs may include, but not be limited to, added thermal mass and shading controls.
(b) For day lighting systems, eligible costs may include, but not be limited to, automatic controls, light shelves, overhangs, automated louvers and blinds and related controls, skylights in spaces where automatic controls are present, and the portion of windows higher than 7 feet above the floor.
(6) For geothermal electricity generation, eligible costs include the cost of supply and disposal pipelines, turbine generators, controls, transformers, metering, labor and balance of plant.
(7) For geothermal energy use in building systems, eligible costs include the cost of supply and disposal pipelines, pumps, heat exchangers, controls, the cost for modeling the building energy performance, metering and labor.
(8) Costs for permanent educational displays located in or on the building that explain the green energy technology incorporated in the project are allowed.
Stat. Auth.: 2007
OL, Ch. 310
Stats. Implemented:
2007 OL, Ch. 310
Hist.: DOE
6-2007, f. 12-31-07, cert. ef. 1-2-08; DOE 15-2012, f. 12-27-12, cert. ef. 1-1-13
330-135-0040
Alternative Financing
(1) Innovative financing arrangements to allow leveraging of federal, state, utility and other incentives, including but not limited to, lease-purchase agreements, power purchase agreements or energy savings performance contracts qualify under this program if;
(a) The agency documents that the costs of the green energy system meets or exceeds 1.5 percent of the total contract price; and
(b) The green energy system is affixed to the building or located at the building site, allowing for ballasted and other systems installed under a power purchase agreement.
(2) The minimum term of the agreement under this section must be at least ten years, unless ownership of the green energy system reverts to the agency before that time.
(3) Any agreement must be exclusive to the green energy system required under the provisions of ORS 279C.527 through 279C.528 and Oregon Laws 2012, chapter 83. Operation and maintenance costs clearly associated with the green energy project are allowed. It must not include terms relating to operation and maintenance or capital equipment purchase of any other equipment or services. For energy savings performance contracts, green energy systems must be separately metered.
Stat. Auth.: 2007
OL, Ch. 310
Stats. Implemented:
2007 OL, Ch. 310
Hist.: DOE
6-2007, f. 12-31-07, cert. ef. 1-2-08; DOE 15-2012, f. 12-27-12, cert. ef. 1-1-13
330-135-0045
Review of Determination that Green Energy Technology is Not Appropriate and Request for Deferral of Expenditures
(1) If an agency believes that the use of green energy technology in a public building project is not appropriate, it must submit a request for a determination of inappropriateness from the department. The agency must present the reasons for requesting the determination.
(2) If an agency submits a request for a determination of inappropriateness both at the site of the public building and away from the site, it must also submit a request to defer expenditures of funds to a future building project. This provision does not apply to a public improvement contract for which no state funds are directly or indirectly used. State funds include funds authorized for construction or renovation of the building. Incentives, such as those provided by the Energy Incentive Program (EIP) and funds intended to support general purpose operations are not considered direct or indirect state funds for the purpose of this section.
(3) When submitting a request to defer expenditure of funds to a future building project, the agency must present reasons for requesting the deferral and must identify a future building project, if any, with construction expected to begin within the next three years. The agency must also submit evidence of a plan to secure availability of deferred funds until the future project comes to fruition.
(4) Within two weeks from the date the department receives a request for a determination of inappropriateness it will either forward the request to the technical panel for review or determine that the request is incomplete and return it to the agency along with a request for additional information. The technical panel will review the requests and present its recommendation to the department as to whether green energy technology is not appropriate and whether the investment should be deferred.
(5) In drafting the determination of inappropriateness, the technical panel generally will consider whether there are physical or other constraints in the building that make the installation of green energy technology not appropriate for the building. For example, the panel may consider, but is not limited to, the following issues:
(a) Whether the building is listed or eligible for listing on the National Register of Historic
Places and the green technology installation would be disruptive to the historic character of the building;
(b) Whether the total solar resource fraction (TSRF) is less than 75 percent;
(c) Whether there is not an opportunity to use photovoltaic or geothermal electric, solar thermal, passive solar heating systems or the direct use of geothermal energy in building systems;
(d) Whether the installation of green energy technology would create security risks for staff or inhabitants of the building.
(6) The department will convey the recommendation of the technical panel to the agency requesting the review. The agency will make the final determination as to whether installation of green energy technology as part of the building project is appropriate and will enter this determination and the recommendation of the technical panel into the reporting database.
(7) Nothing in this section should be construed to waive the requirements that funds be deferred to a future building project pursuant to OAR 330-135-0050.
Stat. Auth.: 2007
OL, Ch. 310
Stats. Implemented:
2007 OL, Ch. 310
Hist.: DOE
6-2007, f. 12-31-07, cert. ef. 1-2-08; DOE 15-2012, f. 12-27-12, cert. ef. 1-1-13
330-135-0047
Requesting Review that Green Energy Technology Located Away from the Site meets Requirements
(1) If an agency intends to install green energy technology away from the site, the installation must:
(a) Be more cost-effective than green energy technology installed on-site;
(b) Provide energy to be used at the newly constructed or renovated public building;
(c) Be constructed in Oregon and in the same county or county adjacent to the newly constructed or renovated public building; and
(d) Add additional new capacity for electricity generation. Power purchased from an existing solar or geothermal electricity generator or capacity gained by redirecting already utilized capacity from an existing geothermal well is not considered additional new capacity. Increasing the output capacity of an existing geothermal well or reopening a previously retired well is considered additional new capacity.
(2) The agency must present the documentation or calculations for the determination to the technical panel. The technical panel will review the submitted documentation and present its recommendation to the department as to whether the proposed green energy technology meets the requirements of OAR 330-135-0047(1).
Stat. Auth.: ORS
469.040, 279C.528, OL 2012, Ch. 83, Sec.2 (SB 1533)
Stats. Implemented:
ORS 279C.527, 279C.528, OL 2012, Ch. 83, Sec.2 (SB 1533)
Hist.: DOE
15-2012, f. 12-27-12, cert. ef. 1-1-13
330-135-0048
Technical Review Panel
(1) The department will refer any requests submitted under OAR 330-135-0045 and 330-135-0047 to a technical panel appointed by the director. The technical panel will be a permanent panel with members serving terms of up to three years. The technical panel will include, but not be limited to, the following membership:
(a) A chair from the Oregon Department of Energy;
(b) A representative from a public body;
(c) A representative from each green technology industry; and
(d) An engineer or architect.
(2) The technical panel will provide the requested determination within 60 days of the submission of the request by the department.
Stat. Auth.: ORS
469.040, 279C.528, OL 2012, Ch. 83, Sec.2 (SB 1533)
Stats. Implemented:
ORS 279C.527, 279C.528, OL 2012, Ch. 83, Sec.2 (SB 1533)
Hist.: DOE
15-2012, f. 12-27-12, cert. ef. 1-1-13
330-135-0050
Deferral of Required Green Energy Technology Expenditures to Future Building Projects
(1) When an agency determines that it is not appropriate to include green energy technology in a building pursuant to OAR 330-135-0045, and deferral is required, the agency must include the deferred investment in the future building identified by the agency, in addition to the 1.5 percent otherwise required for the inclusion of green energy technology in the future building project.
(2) If the agency did not identify a building expected to begin construction within three years under OAR 330-135-0045, and deferral is required, the agency must defer those expenditures to the next building constructed.
(3) Any amount spent on green energy technology in excess of 1.5 percent of the total contract price may not be credited to other current or future projects.
(4) If green energy technology is decommissioned for any reason within 10 years of completion, the agency must spend an equivalent amount for green energy technology on the next building project undertaken by the agency.
Stat. Auth.: 2007
OL, Ch. 310
Stats. Implemented:
2007 OL, Ch. 310
Hist.: DOE
6-2007, f. 12-31-07, cert. ef. 1-2-08; DOE 15-2012, f. 12-27-12, cert. ef. 1-1-13
330-135-0055
Reporting on Green Energy Technology
(1) The amount to be spent on green energy technology must be entered into the green energy technology database before the construction/renovation of the building(s) commences.
(2) Information must include, but not be limited to:
(a) Project name.
(b) Address of public building;
(c) Name of agency;
(d) Contact information for reporting person;
(e) Utility companies serving the building;
(f) Total contract price;
(g) Total insured building value (renovation projects);
(h) Projected start of construction and occupation date of building;
(i) Description of the proposed green energy technology;
(j) Location details of the green energy technology installation;
(k) Disclosure of non-public funds used in financing the green energy technology;
(l) Estimated energy production or savings of the green energy system;
(m) Estimated annual value of the green energy production or savings;
(n) Estimated annual usage of green energy at the site;
(o) Agency determination of appropriateness or agency decision to defer;
(p) Technical panel determination of appropriateness or recommendation to defer, if applicable;
(q) Future project to which funds will be deferred, and projected start of construction of the future building, if applicable;
(r) Cost effectiveness comparison between green energy technology away-from-the-site of the public building compared to green energy technology at the site of public building under construction or renovation, if applicable; and
(s) Evidence of additional new renewable electricity generation at the away-from-the-site location, if applicable.
Stat. Auth.: 2007
OL, Ch. 310
Stats. Implemented:
2007 OL, Ch. 310
Hist.: DOE
6-2007, f. 12-31-07, cert. ef. 1-2-08; DOE 15-2012, f. 12-27-12, cert. ef. 1-1-13
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