The Commonwealth of
Massachusetts
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In the Year Two Thousand and
Seven.
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An
Act relative to green communities.
Be
it enacted by the Senate and House of Representatives in General Court assembled,
and by the authority of the same, as follows:
SECTION 1. Chapter 7 of
the General Laws is hereby amended by inserting after section 9A the following
section:-
Section 9B. Motor vehicles
owned and operated by the commonwealth, as they are removed from service, shall
only be replaced with vehicles that have above-average fuel efficiency for new
vehicles within their size class as determined by the federal government. The
provisions of this section shall not apply in cases where the purchase of an
above-average fuel efficiency vehicle within their size class as determined by
the federal government would result in an inability of the new vehicle to
perform its intended duties.
SECTION 2. Said chapter 7
is hereby further amended by inserting after section 39C the following
section:-
Section 39D. (a) The
commissioner of the division of capital asset management and maintenance, shall
require any state agency that initiates the construction of a new facility, or
substantial renovation of an existing facility that includes the replacement of
systems, components, and other building elements which affect energy or water
consumption, and which is either owned or operated by the commonwealth, to
design and construct such facility to minimize the life-cycle cost of the
facility by utilizing energy efficiency, water conservation, or other renewable
energy technologies pursuant to the following criteria:-
(i) state agencies shall
conduct a life-cycle cost analysis of any such facility's proposed design that
evaluates the short-term and long-term cost and technical feasibility of using
a passive or active solar energy system, wind-powered energy system or other
renewable energy system to provide lighting, heat, water heating, or
electricity. State agencies shall utilize solar or wind-powered systems when
the life-cycle cost analysis has determined that such systems are economically
feasible;
(ii) each new educational
facility, including any municipal educational facility financed through the
school building assistance bureau, for which the projected demand for hot water
exceeds 1,000 gallons per day, or which operates a heated swimming pool, shall
be constructed, whenever economically and physically feasible, with a solar or
other renewable energy system as the primary energy source for the domestic hot
water system or swimming pool of the facility;
(iii) each such state
agency shall attempt, in the design, construction, equipping and operation of
such facilities, to coordinate these efforts with the department of clean energy
in order to maximize reliance and benefits of renewable energy research and
investment activities promoted by this act; and
(iv) each such state agency
shall file with said department a report detailing its compliance with this
section with respect to each such facility.
(b) Notwithstanding section
11C of chapter 25A, the division of capital asset management and maintenance
may procure energy management services jointly with a state agency or building
authority that is procuring energy or related services. Said section 11C shall
apply to the extent determined feasible by the commissioner of the department
of clean energy.
(c) For purposes of this
section, the words "economically-feasible" shall mean providing a
payback period of not more than 10 years, as determined by a life-cycle cost
analysis. The division of capital asset management and maintenance shall
establish, on or before July 1, 2008, a methodology for use by agencies in
assessing life-cycle costs. The department of clean energy shall issue an
annual report to the general court detailing the compliance record of all state
agencies with the construction and renovation provisions in this section.
SECTION 3. Chapter 12 of
the General Laws is hereby amended by striking out section 11E, as appearing in
the 2006 Official Edition, and inserting in place thereof the following
section:-
Section 11E. (a) There
shall be within the office of the attorney general, an office of ratepayer
advocacy. The attorney general through the office of ratepayer advocacy is
hereby authorized to intervene and appear in and participate in any regulatory
or judicial proceedings, federal or state, in which the interests of
Massachusetts ratepayers may be involved, including but not limited to matters
affecting utility services rendered or in connection with any matter involving
the rates, charges, prices, tariffs or practices of an electric company, gas
company, generator, transmission company, telephone company, telegraph or cable
television company doing business in the commonwealth. The office of ratepayer
advocacy shall have standing to intervene in all proceedings before the
department of public utilities and department of telecommunications and cable.
For the purpose of such
intervention the attorney general may expend such funds as may be appropriated
therefore; provided, however, that such expenditures shall not exceed annually
the amount assessed against such electric, gas, telephone and telegraph company
under section 9A of chapter 6A.
The attorney general shall
have no authority to expend any of such funds whenever the expenditure thereof
shall conflict with the duties imposed upon her under the section 3.
(b) The office of
ratepayer advocacy shall be under the direction of an assistant attorney
general appointed pursuant to section 2. The assistant attorney general shall
devote his full time and attention to the duties of the office.
SECTION 4. Section 7 of
chapter 21A of the General Laws, as so appearing, is hereby amended by striking
out the first sentence and inserting in place thereof the following sentence: -
In the executive office shall be an office of the secretary, a department of
environmental protection, a department of conservation and recreation, a
department of agricultural resources, a department of fish and game, a
department of public utilities, and a department of clean energy.
SECTION 5. Said chapter 21A
is hereby further amended by adding the following 2 sections: -
Section 21. The secretary,
in conjunction with the secretary of administration and finance, shall design
and implement a competitive bidding process for the competitive procurement of
electric generation on behalf of any agency, executive office, department,
board, commission, bureau, division, or authority of the commonwealth procuring
electricity from a local distribution company via basic service pursuant to
subsection (e) of section 1B of chapter 164 as of July 1, 2008; provided
further that, any such competitive bid received shall include payment options
with rates that remain uniform for a minimum period of 1 year; and provided
further, that in lieu of designing and implementing a competitive bidding
process as required by this section, the secretary may become a member of 1 or
more programs organized and administered by the Massachusetts Health and
Educational Facilities Authority or its subsidiary organization for the purpose
of such competitive group purchasing of electricity.
Section 22. (a) There is
hereby established and set up on the books of the commonwealth a separate fund
to be known as the Massachusetts Renewable Energy Trust Fund, hereinafter
referred to as the fund. The secretary shall hold the fund in an account
separate from other funds or accounts. There shall be credited to the fund any
revenue from appropriations or other monies authorized by the general court and
specifically designated to be credited to the fund, and any gifts, grants,
private contributions, investment income earned on the fund’s assets and all
other sources and all amounts collected pursuant to section 20 of chapter 25,
and any income derived from the investment of amounts credited to the fund. All
amounts credited to the fund shall be held in trust and used solely for
activities and expenditures consistent with the public purpose of the fund as
set forth in subsection (b) and in no case shall any money remaining in the
fund at the end of a fiscal year revert to the General Fund.
(b) The public purpose of
the fund shall be to provide financial assistance in the form of grants or loans
to finance the costs of renewable energy activities; provided, however, that in
furtherance of the public purposes and interests set forth herein, the
secretary shall, on an annual basis, make appropriations from the fund to be
used to: (i) fund the green communities program established pursuant to section
16 of chapter 25A; (ii) fund the residential installation of renewable energy
technologies, including grants or low-interest loans to residential ratepayers;
and (iii) fund a program, to be established by the secretary, to issue grants
to developers of green buildings.
(c) The department shall
develop a list of qualified home improvement contractors registered pursuant to
chapter 142A and qualified to construct, install and complete renewable energy
projects. Only renewable energy projects completed, constructed or installed by
qualified home improvement contractors on said list compiled by the secretary
or those renewable energy projects completed, constructed or installed via the
low-income weatherization and fuel assistance program network shall qualify for
funding pursuant to this section.
(d) For the purposes of
expenditures from the fund, renewable technologies eligible for assistance
shall include, but not be limited to, the following: solar photovoltaic and
solar thermal electric energy; wind energy; ocean thermal, wave, or tidal
energy; fuel cells; landfill gas; waste-to-energy which is a component of
conventional municipal solid waste plant technology in commercial use;
naturally flowing water and hydroelectric; low emission, advanced biomass power
conversion technologies, such as gasification using such biomass fuels as wood,
agricultural, or food wastes, energy crops, biogas, biodiesel, or organic
refuse-derived fuel; and such funds also shall be used for geothermal heating
and cooling projects provided that the number of wells for any such project
exceeds 375 and that the geothermal heating and cooling systems are owned and
utilized by not-for-profit institutions in the commonwealth; and storage and
conversion technologies connected to qualifying generation projects; provided,
however, that grants from the fund support Massachusetts-based public and
private enterprises developing technologies to significantly increase renewable
energy. Such funds may also be used for appropriate renewable projects, as
well as for investment by distribution companies in renewables and distributed
generation opportunities, if consistent with this section. The following
technologies or fuels shall not be considered renewable energy supplies: coal,
oil, natural gas except when used in fuel cells, and nuclear power.
(e) Massachusetts renewable
energy trust fund monies shall be made available for grants, loans or other
support for upgrades to increase the efficiency or capacity and to reduce the
environmental impacts of hydroelectric facilities located in the commonwealth.
Renewable energy trust fund monies used for this purpose shall be equal to but
shall not exceed a total of $3,000,000 annually.
SECTION 6. Chapter 25 of
the General Laws is hereby amended by inserting after section 5D the following
section:-
Section 5E. The department
shall periodically audit all companies subject to the jurisdiction of said
department, including, but not limited to, review of the following documents:
(i) all financial statements, the balance sheet, the income statement, the
statement of cash flows, the statement of retained earnings, the notes to the
financial statements, the information in the annual return to the department of
public utilities; (ii) all reconciling mechanisms related to rates, prices or
charges, merger, acquisition or consolidation related costs and savings three
years following the merger, acquisition or consolidation; and, (iii) service
quality measure statistics and the service quality performance at least every 3
years or whenever service quality penalties equal to or exceed fifty percent of
the maximum. Upon written complaint of the attorney general of the
commonwealth requesting any independent audit of any company subject to the
jurisdiction of said department, the department shall commence a proceeding
within 30 days of receipt of said complaint for the purpose of ordering the
requested audit in a reasonable time. The results of any audit so ordered shall
be filed promptly with the department of public utilities and the audits shall
be paid for by the company that is the subject of the audit.
SECTION 7. Said chapter 25
is hereby further amended by inserting after section 18 the following section:-
Section 18A. The commission
is hereby authorized to make an assessment against each steam distribution
company under the jurisdictional control of the department of public utilities.
Each steam distribution company shall annually report by March 31 its intrastate
operating revenues for the previous calendar year to said department. Said
assessments shall be made at a rate not exceeding 0.2 per cent of such
intrastate operating revenues, as shall be determined and certified annually by
the commission as sufficient to reimburse the commonwealth for funds
appropriated by the general court for the operation and general administration
of the department and for the cost of fringe benefits as established by the
commissioner of administration pursuant to section 5D of chapter 29, including
group life and health insurance, retirement benefits, paid vacations, holidays
and sick leave.
Each company shall pay the
amount assessed against it within 30 days after the date of the notice of
assessment from the department. Such assessments collected by the department
shall be credited to the General Fund. Any funds unexpended in any fiscal year
for the purposes for which such assessments were made shall be credited against
the assessment to be made in the following fiscal year and the assessment in
the following fiscal year shall be reduced by any such unexpended amount.
SECTION 8. Said chapter 25
is hereby further amended by striking out sections 19 and 20, as appearing in
the 2006 Official Edition, and inserting in place thereof the following 6
sections:-
Section 19. (a) The
department shall require a mandatory charge of 2.5 mills per kilowatt-hour for
all consumers of the commonwealth, except those served by a municipal lighting
plant, to fund energy efficiency programs including, but not limited to, demand
side management programs. The programs shall be administered by the electric
distribution companies and by municipal aggregators with energy plans certified
by the department pursuant to subsection (b) of chapter 164. In addition to
the aforementioned mandatory charge, such programs shall also be funded by
amounts generated by the distribution companies and municipal aggregators
pursuant to the Forward Capacity Market program administered by ISO New England
and by substantially all amounts generated by all cap and trade pollution
control programs, including, but not limited to, the carbon dioxide allowance
trading mechanism established pursuant to the Regional Greenhouse Gas
Initiative Memorandum of Understanding and the NOx Allowance Trading Program,
and other funding as approved by the department after consideration of (i) the
effect of any rate increases on residential and commercial consumers, (ii) the
availability of other funds, private or public, utility administered or otherwise,
that may be available for energy efficiency or demand resources, and (iii)
whether past programs have lowered the cost of electricity to residential and
commercial consumers. In authorizing such programs the department shall ensure
that they are delivered in a cost-effective manner capturing all available
efficiency opportunities and utilizing competitive procurement processes to the
fullest extent practicable.
(b) The department is
authorized to approve and fund gas energy efficiency programs proposed by gas
distribution companies including, but not limited to, demand side management
programs. Energy efficiency activities eligible for funding under this section
shall include geothermal heating and cooling projects provided that the number
of wells for any such project exceeds 375 and that the geothermal heating and
cooling systems are owned and utilized by not-for-profit institutions in the
commonwealth. Funding may be supplemented by funds authorized by Section 22 of
this chapter. The programs shall be administered by the gas distribution
companies. In authorizing such programs the department shall ensure that they
are delivered in a cost-effective manner capturing all available efficiency
opportunities and utilizing competitive procurement processes to the fullest
extent practicable.
(c) Electric and gas
energy efficiency program funds shall be allocated to customer classes,
including the low-income residential sub-class, in proportion to their
contributions to those funds; provided, however, that at least 10 per cent of
the amount expended for electric energy efficiency programs and at least 20 per
cent of the amount expended for gas energy efficiency programs shall be spent
on comprehensive low-income residential demand-side management and education
programs; and provided further that for a period of 3 years subsequent to the
expiration of each electric or gas company efficiency plan or agreement in
place as of January 1, 2008, the amount and percentage allocated to the
low-income residential sub-class for the electric or gas company shall not be
reduced from that provided under law, guidelines and agreements in force as of
January 1, 2008. The low-income residential demand-side management and
education programs shall be implemented through the low-income weatherization
and fuel assistance program network and shall be coordinated with all electric
and gas distribution companies in the commonwealth with the objective of
standardizing implementation. Such programs shall be screened only through cost-effectiveness
testing which compares the value of program benefits to society to program
costs to ensure that programs are designed to obtain energy savings and system
benefits whose value is greater than the costs of the programs.
Section 20. The department
shall require a mandatory charge per kilowatt-hour for all electricity
consumers of the commonwealth, except those consumers served by a municipal
lighting plant which does not supply generation service outside its own service
territory or does not open its service territory to competition at the retail
level, to support the development and promotion of clean and renewable energy
projects. Said charge shall be in the amount of ½ of 1 mill per
kilowatt-hour. All revenues generated by said mandatory charge shall be
deposited into the Massachusetts Renewable Energy Trust Fund, established
pursuant to section 22 of chapter 21A.
Section 21. (a) In order
to mitigate capacity and energy costs for all customers, the department shall
ensure that, subject to subsection (c) of section 19 the commonwealth’s
electric and natural gas resource needs shall first be met through all
available energy efficiency and demand reduction resources that are cost
effective and all such resources that are less expensive than supply. The cost
of supply shall be determined by the department with consideration of the
average cost of generation to all customer classes over the previous 24 months.
(b)(1) On or before March
30, 2008, and every 3 years thereafter, the electric distribution utilities and
municipal aggregators with certified efficiency plans shall jointly prepare an
electric Efficiency Investment Plan and the natural gas distribution utilities
shall jointly prepare a natural gas plan. Each of the plans shall provide for
the acquisition of all available energy efficiency and demand resources that
are cost effective and all such resources that are less expensive than supply
and shall be prepared in coordination with the energy efficiency advisory
council, established by section 22 of this chapter.
(2) The plan shall include:
(a) an assessment of the estimated lifetime cost, reliability, and magnitude of
all available energy efficiency and demand reduction resources that are cost
effective and all such resources that are less expensive than supply, (b) the
amount of demand resources, including efficiency, conservation, demand response
and load management, that are proposed to be acquired under the plan and the
basis for this determination, (c) the estimated energy cost savings the
acquisition of such resources will provide to electricity and natural gas
consumers, including but not limited to reductions in capacity and energy costs
and increases in rate stability and affordability for low-income customers, (d)
programs, which may include, but not be limited to: (i) efficiency and load
management programs; (ii) demand response programs; (iii) research, development
and commercialization of products or processes which are more energy-efficient
than those generally available; (iv) development of markets for such products
and processes, including recommendations for new appliance and product
efficiency standards; (v) support for energy use assessment, real-time
monitoring systems, engineering studies and services related to new construction
or major building renovation, including integration of such assessments,
systems, studies and services with building energy codes programs and
processes, or those regarding the development of high performance or
sustainable buildings that exceed code; (vi) the design, manufacture,
commercialization and purchase of energy-efficient appliances and heating, air
conditioning and lighting devices; (vii) program planning and evaluation;
(viii) programs providing commercial, industrial and institutional customers
with greater flexibility and control over demand side investments funded by the
programs at their facilities; and (ix) public education regarding energy
efficiency and demand management; provided, however, that not more than 1 per
cent of the fund shall be expended for items (iii) and (iv) collectively,
without authorization from the advisory council, (e) a proposed mechanism which
provides performance incentives to the companies based on their success in
meeting or exceeding the goals in the plan, (f) the budget that is needed to
support the programs, (g) a fully reconciling funding mechanism which may
include, but not be limited to, the charge authorized by section 19, and (h)
the estimated amount of reduction in peak load that will be reduced from each
option and any estimated economic benefits for such projects including job
retention, job growth, or economic development.
(3) The plan shall also
include data showing the percentage of all monies collected that will be used
for direct consumer benefit, such as incentives and technical assistance to
carry out the provisions of the plan. With the approval of the advisory
council, the plan may also include a mechanism to provide priority to projects
that have substantial benefits in reducing peak load or have economic
development, job creation or job retention benefits.
(4) (a) The electric and
natural gas plans will be for a 3 year period and shall be prepared every 3
years by the natural gas and electric utilities and municipal aggregators with
certified efficiency plans.
(b) Programs included
in the plan shall be screened through cost-effectiveness testing which compares
the value of program benefits to the program costs to ensure that programs are
designed to obtain energy savings and system benefits whose value is greater
than the costs of the programs. Program cost-effectiveness shall be reviewed
periodically by the department as well as by the council. If a program is
determined to fail the cost-effectiveness test as part of the review process,
it shall either be modified to meet the test or shall be terminated.
(c) The plan shall be
submitted for approval and comment by the energy efficiency advisory council.
The companies shall provide any additional information requested by the council
that is relevant to the consideration of the plan. The council shall review
the plan and any additional information and submit its approval or comments to
the natural gas and electric distribution companies and municipal aggregators,
not later than three months after submission of the plan. The natural gas and
electric distribution companies and municipal aggregators may make any changes
or revisions to reflect the input of the council.
(c)(1) The natural gas
and electric distribution companies and municipal aggregators shall submit the
plan, together with the council’s approval or comments and a statement of any
unresolved issues to the department on or before June 30, 2008. The department
shall consider the plan and shall provide an opportunity for interested parties
to be heard in an adjudicatory proceeding.
(2) Not later than 90
days after submission of the plan, the department shall issue a decision on the
plan which ensures that the electric and natural gas distribution utilities
have identified and will capture all energy efficiency and demand reduction
resources that are cost effective and all such resources that are less
expensive than supply and shall approve, or modify and approve, the plan
accordingly. In the case of municipal aggregators, the department shall
approve a fully reconciling funding mechanism for the approved plan that
requires coordination between the distribution company and municipal aggregator
to ensure program costs are collected, allocated and distributed in a cost effective,
fair and equitable manner.
Section 22. (a) The
department shall appoint and convene an energy efficiency advisory council
which shall consist of not more than 12 members, including at least 1 person
representing: (i) residential consumers, (ii) the low-income weatherization and
fuel assistance program network, (iii) environmental, (iv) business including
large C&I end-users, (v) manufacturing, (vi) energy efficiency experts,
(vii) labor, (viii) the department of environmental protection, (ix) the
attorney general (x) the executive office of housing and economic development,
and (xi) the department of clean energy. Interested parties shall apply to the
department for designation as members. Members shall serve for terms of 5
years and may be reappointed. The commissioner of the department of clean
energy will serve as chairperson of the council. The representative of energy
efficiency experts may not have a contractual relationship with any electric or
natural gas distribution company or electricity or natural gas provider. Each
of the electric and natural gas distribution companies, a heating oil industry
representative, and a representative of energy efficiency businesses, shall be
non-voting, ex-officio members.
(b) The council, as part
of the approval process by the department, shall seek to maximize net economic
benefits through energy efficiency and load management resources and to achieve
state energy, capacity, climate, and environmental goals through a sustained
and integrated statewide energy efficiency effort. The council shall review
and approve demand resource program plans and budgets, work with program
administrators in preparing energy resource assessments, determine the
economic, system reliability, climate and air quality benefits of efficiency
and load management resources, conduct and recommend relevant research, and
recommend long term efficiency and load management goals for the commonwealth
to maximize economic savings and achieve environmental goals. Approval of efficiency
and demand resource plans and budgets shall require a two-thirds majority
vote. The council shall, as part of its review of plans, examine opportunities
to offer joint programs providing similar efficiency measures that save more
than one fuel resource or otherwise to coordinate programs targeted at saving
more than one fuel resource. Any costs for joint programs shall be allocated
equitably among the efficiency programs.
(c) The council may retain
expert consultants provided such consultants may not have any contractual
relationship with an electric or natural gas distribution company or
electricity or natural gas provider. The council shall annually submit to the
department a proposal regarding the level of funding required for the retention
of expert consultants and reasonable administrative costs which proposal shall
be approved by the department either as submitted or as modified by the
department. The department shall allocate funds sufficient for these purposes
from the natural gas and electric efficiency funding authorized pursuant to
section 19; provided, however, that such allocation shall not exceed 1 per cent
of such funding on an annual basis. On or before December 31, 2008, the
advisory council shall undertake, using third party experts, a study which
examines the energy efficiency and demand response programs in Massachusetts,
including all public and private funding sources. Included in this study shall
be an audit of all existing energy efficiency and demand response programs to
identify the costs and benefits associated with such programs. The consultants
used under this section shall be experts in energy efficiency and shall be
independent and not in receipt of disbursement of funds from any funding
connected with energy efficiency or demand response programs, except as in the
capacity as third party independent experts.
(d) The natural gas and
electric distribution companies and municipal aggregators shall provide
quarterly reports to the council on the implementation of the plan. The
reports shall include a description of the each company’s progress in
implementing the plan, a summary of the savings secured to date and such other
information as the council shall determine appropriate. The council shall
provide an annual report to the joint committee on telecommunications,
utilities and energy, and the department on the implementation of the plan
which includes descriptions of the programs, expenditures, cost-effectiveness
and savings and other benefits during the previous year.
Section 23. As used in
sections 19, 21 and 22, the following words shall, unless the context clearly
requires otherwise, have the following meanings:-
“Direct consumer benefit”,
customer incentives and assistance provided directly to the consumer.
“Added costs to consumers”,
shall include any added costs associated with carrying out the program compared
to those costs associated with carrying out the program during the previous 3
year plan period.
Section 24. Except as
otherwise permitted in this section, in any contested on-the-record proceeding,
no person outside the executive office shall make or knowingly cause to be made
to any decisional employee, and no decisional employee shall make or knowingly
cause to be made to any person outside the executive office, any off-the-record
communication. The communication prohibited by this section shall apply to: (i)
proceedings initiated by the commission from the time an order initiating the
proceeding is issued; (ii) proceedings returned to the commission on judicial
remand from the date the court issues said mandate; (iii) complaints initiated
by the filing of the complaint with the commission, or from the date the
commission initiates an investigation other than an investigation exempted from
this section; (iv) matters that have been assigned to an administrative law
judge or hearing officer for adjudication or other resolution; and (v) all
other proceedings from the time of the filing of an intervention disputing any
material issue that is the subject of a proceeding.
The prohibitions herein
prescribed shall remain in force until: (i) a final commission decision or,
other final order on the merits of the proceeding, is issued; or, when
applicable, after the time for seeking rehearing or reconsideration of a final
commission decision, or other final order disposing of the merits, expires;
(ii) the commission otherwise terminates the proceeding; or (iii) the
proceeding is no longer contested.
Except as provided in
herein, the general prohibitions of this section shall not apply to: (i) an
off-the-record communication permitted by law and authorized by the commission;
(ii) an off-the-record communication related to any emergency concerning a
company or facility regulated by the executive office or a company or facility
that provides executive office-regulated services, involving injury or threat
of injury to persons, property or the environment, subject to disclosure
provisions of this section; (iii) an off-the-record communication provided for
in a written agreement among all parties to a proceeding that has been approved
by the commission; (iv) an off-the-record written communication from a
non-party elected official, subject to disclosure under this section; (v) an
off-the-record communication to or from a federal, state or local agency that
is not a party in the commission proceeding, subject to disclosure under this
section, if the communication involves: (a) an oral or written response to a
request for information made by the commission or commission staff; or (b) an
off-the-record communication involving individual landowners who are not
parties to the proceeding and whose property would be used or abuts property
that would be used by the project that is the subject of the proceeding,
subject to disclosure under this section.
Except as herein provided,
prohibited off-the-record communications will not be considered part of the
record for decision in the applicable proceeding. Any decisional employee who
makes or receives a prohibited off-the-record communication shall promptly
submit to the chairman that communication, if written, or a summary of the
substance of that communication, if oral. The chairman shall place the
communication or the summary in the public file associated with, but not part
of, the decisional record of the proceeding. Any party may file a response to a
prohibited off-the-record communication placed in the public file. A party may
also file a written request to have the prohibited off-the-record communication
and the response included in the decisional record of the proceeding. The
communication and the response will be made a part of the decisional record if
such a request is granted by the commission. The chairman shall instruct any
person making a prohibited written off-the- record communication to serve the
document, pursuant to regulations promulgated pursuant to this chapter, on all
parties listed on the commission’s official service list for the applicable
proceeding.
Any document, or a summary
of the substance of any oral communication, obtained through an exempt
off-the-record communication promptly shall be submitted to the chairman and
placed in the decisional record of the relevant commission proceeding. Any
person may respond to an exempted off-the-record communication. The chairman
shall, not less than every 30 days, issue a public notice listing any
prohibited off-the-record communications or summaries thereof received. For
each prohibited off-the-record communication the chairman places in the
non-decisional public file the notice will identify the maker of the
off-the-record communication, the date the off-the-record communication was
received, and the docket number to which it relates. The chairman shall, not
less than every 30 days, issue a public notice listing any exempt
off-the-record communications or summaries of the communication received by the
chairman for inclusion in the decisional record and required to be disclosed
under this section. The public notice required under this paragraph will be
posted and disseminated in the publication manner authorized by the commission
for its official proceedings.
If a party or its agent or
representative knowingly makes, or causes to be made, a prohibited
off-the-record communication, the commission may require the party, agent, or
representative to show cause why the party’s claim or interest in the
proceeding should not be dismissed, denied, disregarded, or otherwise adversely
affected because of the prohibited off-the-record communication. If a person
knowingly makes or causes to be made a prohibited off-the-record communication,
the commission may disqualify and deny the person, temporarily or permanently,
the privilege of practicing or appearing before it. The commission may, by rule
or order, modify any provision of this section as it applies to all or part of
a proceeding, to the extent permitted by law. The provisions of this section
are not intended to limit the authority of a decisional employee to decline to
engage in permitted off-the-record communications, or where not required by any
law, statute or regulation, to make a public disclosure of any exempted
off-the-record communication.
The department shall issue
regulations that implement this section. Any regulations issued by the
department shall incorporate all the provisions contained herein, provided,
however, that said regulations may contain additional provisions that are
stricter than the prohibitions of this section provided that such provisions
are consistent with the intent of this section.
SECTION 9. Chapter 25A of
the General Laws is hereby amended by striking sections 1 and 2, as so
appearing, and inserting in place thereof the following 2 sections:-
Section 1. There shall be a
department of clean energy which shall be under the supervision, direction and
control of a commissioner of clean energy. The commissioner shall be appointed
by the governor and shall be a person of skill and experience in the field of
energy regulation or policy. The commissioner shall be the executive and
administrative head of the department and shall be responsible for
administering and enforcing the provisions of law relative to the department
and to each administrative unit thereof. The commissioner shall serve at the
pleasure of the governor, shall receive such salary as may be determined by
law, and shall devote his full time to the duties of his office. In the case of
an absence or vacancy in the office of the commissioner, or in the case of
disability as determined by the governor, the governor may designate an acting
commissioner to serve as commissioner until the vacancy is filled or the
absence or disability ceases. The acting commissioner shall have all the powers
and duties of the commissioner and shall have similar qualifications as the
commissioner.
Section 2. (a) There shall
be within the department of clean energy 3 divisions, a division of energy
efficiency which shall work with the department of public utilities regarding
the energy efficiency programs; a division of renewable and alternative energy
development which shall oversee and coordinate activities that seek to maximize
the installation of renewable energy generating resources that will provide
benefits to ratepayers, advance the production and use of bio-fuels and other
alternative fuels as the division may define by regulation, and administer the
Massachusetts renewable portfolio standard, established in section 11F; and a
division of green communities which shall serve as the principal point of
contact for municipalities and other governmental bodies concerning all matters
under the jurisdiction of the department of clean energy. Said divisions shall
be headed by a director who shall be appointed by the commissioner and shall be
a person of skill and experience in the field of energy efficiency, renewable
or alternative energy, and energy regulation or policy, respectively. The
directors shall be the executive and administrative head of their respective
division and shall be responsible for administering and enforcing the
provisions of law relative to said division and to each administrative unit
thereof. The director shall serve at the pleasure of the commissioner, shall
receive such salary as may be determined by law, and shall devote his full time
to the duties of his office. In the case of an absence or vacancy in the office
of the director, or in the case of disability as determined by the
commissioner, the commissioner may designate an acting director to serve as
director until the vacancy is filled or the absence or disability ceases. The
acting director shall have all the powers and duties of the director and shall
have similar qualifications as the director. The directors shall be responsible
for carrying out the work of their respective divisions under the supervision,
direction, and control of the commissioner.
(b) The commissioner may
from time to time, subject to appropriation, establish within the department
such administrative units as may be necessary for the efficient and economical
administration of the department, and when necessary for such purpose, may
abolish any such administrative unit, or may merge any two or more of them, as
the commissioner deems advisable. The commissioner shall prepare and keep
current a statement of the organization of the department, of the assignment of
its functions to its various administrative units, offices and employees, and
of the places at which and the methods whereby the public may receive
information or make requests. Such statement shall be known as the department’s
description of organization. A current copy of the description of organization
shall be kept on file in the office of the secretary of state and in the office
of the secretary of administration.
(c) Subject to
appropriation, the commissioner may appoint such persons as he shall deem
necessary to perform the functions of the department, provided that the
provisions of chapter 31 and section 9A of chapter 30 shall not apply to any
person holding any such appointment. Every person so appointed to any position
in the department shall have experience and skill in the field of such
position. So far as practicable in the judgment of the commissioner,
appointments to such positions in the department shall be made by promoting or
transferring employees of the commonwealth serving in positions which are
classified under said chapter 31, and such appointments shall at all times
reflect the professional needs of the administrative unit affected. If an
employee serving in a position which is classified under said chapter 31 or in
which an employee has tenure by reason of said section 9A of chapter 30 shall
be appointed to a position within this office which is not subject to the
provisions of said chapter 31, the employee shall upon termination of his
service in such position be restored to the position which he held immediately
prior to such appointment; provided, however, that his service in such position
shall be determined by the civil service commission in accordance with the
standards applied by said commission in administering said chapter 31. Such restoration
shall be made without impairment of his civil service status or tenure under
said section 9A of chapter 30 and without loss of seniority, retirement or
other rights to which uninterrupted service in such prior position would have
entitled him. During the period of such appointment, each person so appointed
from a position in the classified civil service shall be eligible to take any
competitive promotional examination for which he would otherwise have been
eligible.
SECTION 10. Section 3 of
said chapter 25A, as so appearing, is hereby amended by striking out, in line
11, the words “division of energy resources” and inserting in place thereof the
following words:- department of clean energy.
SECTION 11. Section 3 of
said chapter 25A as so appearing is hereby amended by inserting after the
definition of “Energy management services” the following definition —
“Energy savings”, a
measured reduction in fuel, energy, operating or maintenance costs resulting
from the implementation of 1 or more energy conservation measures or projects,
provided that any payback analysis to evaluate the energy savings of a
geothermal energy system to provide heating, cooling or water heating over its
expected lifespan shall include gas and electric consumption savings,
maintenance savings and shall use an average escalation rate based on the most
recent information compiled by the US Department of Energy’s Energy Information
Administration for gas and electric rates.
SECTION 12. Section 5 of
said chapter 25A, as so appearing, is hereby amended by striking out the first
sentence and inserting in place thereof the following sentence:- The
commissioner of clean energy shall file an annual report with the joint
committee on telecommunications, utilities and energy and the house and senate
committees on ways and means: (a) listing the number of employees of the
department of clean energy, the salaries and titles of each employee, the
source of funding for the salaries of said employees and the projected date
when federal funds for such positions are expected to terminate; (b) listing
and describing grant programs of the department funded by the federal
government, including the amount of funding by grant; (c) listing and
describing other programs of the department, including the amount and source of
funding by program; and (d) describing the energy audit, energy conservation
and alternative energy bond programs by categories of projects prospective
grantees under each category, if known, and amounts to be spent by category and
grantee.
SECTION 13. Section 6 of
said chapter 25A, as so appearing, is hereby amended by striking out, in line
1, the words "division of energy resources" and inserting in place
thereof the following words:- department of clean energy.
SECTION 14. Section 7 of
said chapter 25A, as so appearing, is hereby amended by striking out, in lines
1, 21 and 22 and in line 29, the words "division of energy resources"
and inserting in place thereof, in each instance, the following words:- department
of clean energy.
SECTION 15. Section 8 of
said chapter 25A, as so appearing, is hereby amended by striking out, in line
12, the words "division of energy resources" and inserting in place
thereof the following words:- department of clean energy.
SECTION 16. Section 9 of
said chapter 25A, as so appearing, is hereby amended by striking out, in line
10 the words "division of energy resources" and inserting in place
thereof the following words:- department of clean energy.
SECTION 17. Section 10 of
said chapter 25A is hereby repealed.
SECTION 18. Section 11E of
said chapter 25A, as so appearing, is hereby amended by striking out, in line
1, the words "division of energy resources" and inserting in place
thereof the following words:- department of clean energy.
SECTION 19. Said section
11F of said chapter 25A, as so appearing is hereby further amended by striking
out subsections (a) and (b) and inserting in place thereof the following 5
subsections:-
(a) The department of clean
energy, shall establish a renewable energy portfolio standard for all retail
electricity suppliers selling electricity to end-use customers in the
commonwealth. By December 31, 1999, the department shall determine the actual
percentage of kilowatt-hours sales to end-use customers in the commonwealth
which is derived from existing renewable energy generating sources. Every
retail supplier shall provide a minimum percentage of kilowatt-hours sales to
end-use customers in the commonwealth from new renewable energy generating
sources, according to the following schedule: (i) an additional 1 per cent of
sales by December 31, 2003, or one calendar year from the final day of the
first month in which the average cost of any renewable technology is found to
be within 10 per cent of the overall average spot-market price per
kilowatt-hour for electricity in the commonwealth, whichever is sooner; (ii) an
additional one-half of 1 per cent of sales each year thereafter until December
31, 2009; and (iii) an additional 1 per cent of sales every year thereafter.
For the purpose of this subsection, a new renewable energy generating source is
one that begins commercial operation after December 31, 1997, or that
represents an increase in generating capacity after December 31, 1997, at an
existing facility. Commencing on January 1, 2009, such minimum percentage
requirement shall be known as the “Class I” renewable energy generating source
requirement.
(b) For the purposes of
this section, a renewable energy generating source is one which generates
electricity using any of the following: (i) solar photovoltaic or solar thermal
electric energy; (ii) wind energy; (iii) ocean thermal, wave, or tidal energy;
(iv) fuel cells utilizing renewable fuels; (v) landfill gas; (vi)
waste-to-energy which is a component of conventional municipal solid waste
plant technology in commercial use; (vii) naturally flowing water and
hydroelectric; (viii) low-emission advanced biomass power conversion
technologies using such biomass fuels as wood, agricultural, or food wastes,
energy crops, biogas, biodiesel, or organic refuse-derived fuel; and (ix)
geothermal energy; provided, however, that after December 31, 1998, the
calculation of a percentage of kilowatt-hours sales to end-use customers in the
commonwealth from new renewable generating sources shall exclude clauses (vi)
and (vii) herein. The department may also consider any previously operational
biomass facility retrofitted with advanced conversion technologies as a
renewable energy generating source.
(c) Commencing on January
1, 2008, such new renewable energy generating sources meeting the requirements
of this paragraph shall be known as Class I renewable energy generating
sources. For the purposes of this section, a new renewable energy generating
source is one that begins commercial operation after December 31, 1997, or the
net increase from incremental new generating capacity after December 31, 1997
at an existing facility, where the facility generates electricity using any of
the following: (i) solar photovoltaic or solar thermal electric energy; (ii)
wind energy; (iii) ocean thermal, wave, or tidal energy; (iv) fuel cells
utilizing renewable fuels; (v) landfill gas; (vi) incremental energy resulting
from increased capacity and efficiency at hydroelectric facilities licensed by
FERC after 1986, or at hydroelectric facilities that receive FERC approval to
construct improvements necessary to provide such incremental energy, so long as
such increased capacity and efficiency does not involve pumped storage of
water; provided that only such improvements to a hydroelectric facility made
after January 1, 1998, and only up to 5 megawatts per facility of incremental
new energy attributable to such improvements, shall be considered a new
renewable energy generating source; and provided further that the facility
meets all applicable current state and federal fish passage requirements; (vii)
low-emission, advanced biomass power conversion technologies, such as
gasification using fuels such as wood, agricultural, or food wastes, energy
crops, biogas, biodiesel, or organic refuse-derived fuel; or (viii) geothermal
energy.
(d) Commencing on January
1, 2009, every retail electric supplier providing service under contracts
executed or extended on or after January 1, 2009, shall also provide a minimum
percentage of kilowatt-hour sales to end-use customers in the commonwealth from
Class II renewable energy generating sources. For the purposes of this section,
a Class II renewable energy generating source is one that began commercial
operation before December 31, 1997 and generates electricity using any of the
following: (i) solar photovoltaic or solar thermal electric energy; (ii) wind
energy; (iii) ocean thermal, wave, or tidal energy; (iv) fuel cells utilizing
renewable fuels; (v) landfill gas; (vi) waste-to-energy which is a component of
conventional municipal solid waste plant technology in commercial use; (vii) a
run-of-the river hydroelectric facility that does not utilize a dam constructed
subsequent to December 31, 1997, does not entail any new impoundment or
diversion of water subsequent to December 31, 1997, and where such facility (a)
has a nameplate capacity of 5 megawatts or less, (b) meets all applicable
current state and federal fish passage requirements, and (c) has not been recommended
for decommissioning or removal by any federal, state or local agency
responsible for environmental protection or public safety with regulatory
jurisdiction over rivers, dams or hydroelectric facilities; (viii) low-emission
biomass power conversion technologies, such as gasification using fuels such as
wood, agricultural, or food wastes, energy crops, biogas, biodiesel, or organic
refuse-derived fuel; or (ix) geothermal energy. After conducting
administrative proceedings, the department may add technologies or technology
categories to any above list; provided, however, that the following
technologies shall not be considered renewable energy supplies: coal, oil,
natural gas, and nuclear power.
(e) On or before June 30,
2008, the department of clean energy shall determine the actual percentage of
kilowatt-hour sales to end-use customers in the commonwealth which was derived
from Class II generating sources in 1998. On or before January 1, 2009, every
retail supplier shall annually provide to end-use customers in the
commonwealth, generation attributes from Class II energy facilities in the
amount equal to the percent of the kilowatt hour sales from Class II energy
generating sources in 1998, and shall provide at least that percentage of Class
II generation attributes each year thereafter. Such minimum percentage
requirement for kilowatt-hour sales from Class II energy generating sources may
be adjusted by the department as necessary to promote the continued operation
of existing energy generating resources that meet the requirements of
subsection (d), and may be met through kilowatt-hour sales to end-use customers
from any energy generating source meeting the requirements of said subsection
(d). For purposes of calculating a retail supplier’s minimum percentage of
kilowatt-hour sales of Class II renewable energy generating sources, retail
supplier’s annual, kilowatt-hours sales to end-use customers shall be net of
kilowatt-hours of energy that such retail supplier is obligated to purchase in
that year pursuant to an agreement that was entered into prior to October 1,
2007. The department shall establish and maintain regulations allowing for a
retail supplier to discharge its obligations under this section by making an
alternative compliance payment in an amount established by thedepartment. The
department shall establish and maintain regulations outlining procedures by
which each retail supplier shall annually submit for the department’s review a
filing illustrating the retail supplier’s compliance with the requirements of
this section.
SECTION 20. Said chapter
25A is hereby further amended by inserting after section 11F the following
section:-
Section 11F1/2(a). The
department of clean energy shall establish an alternative energy portfolio
standard for all retail electricity suppliers selling electricity to end-use
customers in the commonwealth. Beginning January 1, 2009, every retail supplier
shall provide a percentage of kilowatt-hour sales, as determined by the
department, to end-use customers in the commonwealth from alternative energy
generating sources, and the department shall annually thereafter determine the
minimum percentage of kilowatt-hour sales to end-use customers in the
commonwealth which shall be derived from alternative energy generating sources.
For the purposes of this section, an alternative energy generating source is
one which generates electricity using any of the following: (i) coal
gasification; (ii) combined heat and power; or (iii) any other alternative
energy technology approved by the department pursuant to an administrative
proceeding conducted pursuant to chapter 30A; provided, however, that the
following technologies shall not be considered alternative energy supplies:
coal, except when used in coal gasification, oil, and natural gas, except when
used in coal gasification. The department shall set emission performance
standards including for CO2 for all technologies included in this section
consistent with the state’s environmental goals.
(b) The department shall
promulgate regulations allowing for a retail supplier to discharge its
obligations under this section by making an alternative compliance payment in
an amount established by the department. Such regulations shall outline
procedures by which each retail supplier shall annually submit for the
department’s review a filing illustrating the retail supplier’s compliance with
the requirements of this section.
SECTION 21. Section 11G of
said chapter 25A is hereby repealed.
SECTION 22. Section 11H of
said chapter 25A, as appearing in the 2006 Official Edition, is hereby amended
by striking out, in line 1, the words "division of energy resources"
and inserting in place thereof the following words:- department of clean
energy.
SECTION 23. Said chapter
25A is hereby further amended by inserting after section 11L the following
section:-
Section 11M. For the
purposes of this section, the following words shall have the following
meanings:-
“Capacity resource”, an
external resource as defined by ISO-NE’s Manual M-20, Section 3.8.7. External
Resources.
“Generator”, the person
that owns, directly or indirectly, the renewable energy generating source that
is located in a control area adjacent to the ISO-NE Control Area, but does not
include any person under contract with the Generator to purchase the renewable
energy or renewable energy credits associated with such renewable energy.
“Person”, any individual,
corporation, limited liability company, general or limited partnership, trust,
association or other entity.
A renewable energy
generating source as described in section 11F that is physically located in or
relocated to a control area adjacent to the ISO New England (“ISO-NE”) control
area may qualify as an eligible renewable energy generating source under
section 11F, provided however, that the renewable energy electricity generated
by such renewable energy generating source was delivered into and used by
consumers within the ISO-NE control area.
The delivery of renewable
energy into the ISO-NE as described in the second paragraph shall not qualify
under the renewable portfolio standard, notwithstanding such delivery into the
ISO-NE control area, unless the generator of such renewable energy: (i)
initiates the import transaction pursuant to a bilateral sales contract with a purchaser
of the renewable energy located in the ISO-NE control area by properly
completing a North American Electric Reliability Council tag from the generator
in the adjacent control area to either a node or zone in the ISO-NE control
area; (ii) commits its renewable energy generating source to the ISO-NE control
area as a capacity resource for a period of not less than 5 years beginning on
the date the renewable energy generating source receives qualification from
the; and (iii) complies with all ISO-NE rules and regulations required to
schedule and deliver all of the renewable energy generating source’s energy and
capacity into the ISO-NE control area.
During any period in which
the generator, or any person under contract with the generator, is delivering
renewable energy from the renewable energy generating source into the ISO-NE
control area, and notwithstanding compliance with the third paragraph, the
renewable energy generated by the renewable energy generating source that is
eligible for the renewable portfolio standard shall be limited to the lesser of
the following: (i) the renewable energy actually generated by the renewable
energy generating source; (ii) the renewable electricity actually scheduled and
delivered into the ISO-NE control area from the renewable energy generating
source in compliance with subsection (b); or (iii) the renewable energy
generating source’s capacity rating adjusted for its outages.
The renewable portfolio
standard credit applicable to the eligible renewable energy as determined
pursuant to the fourth paragraph shall be reduced by any exports of energy from
the ISO-NE control area made by the person seeking renewable portfolio credit
for such renewable energy, or any affiliate of such person, or any other person
under contract with such person to export energy from the ISO-NE control area
and deliver such energy directly or indirectly to such person.
The department through duly
adopted regulations may require such other requirements as it deems appropriate
consistent with this section.
SECTION 24. Section 12 of
said chapter 25A, as appearing in the 2006 Official Edition, is hereby amended
by striking out, in line 15, the word “energy” and inserting in place thereof
the following words:- telecommunication, utilities and energy.
SECTION 25. Section 13 of
said chapter 25A, as so appearing, is hereby amended by striking out, in lines
10 to 11, the words “Division of Energy Resources Credit Trust Fund” and
inserting in place thereof the following words:- Department of Clean Energy
Credit Trust Fund.
SECTION 26. Said section
13 of said chapter 25A, as so appearing, is hereby further amended by striking
out, in line 16, the words “division of energy resources” and inserting in
place thereof the following words:- department of clean energy.
SECTION 27. Said section
13 of said chapter 25A, as so appearing, is hereby further amended by striking
out, in line 16 and 17, the word “division” and inserting in place thereof the
following word:- department.
SECTION 28. Said chapter
25A is hereby further amended by adding the following 5 sections:-
Section 14. (a) As used in
this section, the following words shall, unless the context clearly requires
otherwise, have the following meanings:-
“Building authority”, the
University of Massachusetts Building Authority, the Southeastern Massachusetts
University Building Authority, the University of Lowell Building Authority or
any other building authority which may be established for similar purposes.
“Eligible”, able to meet
all requirements for offerors or bidders set forth in this section and section
44D of chapter 149 and not debarred from bidding under section 44C of said
chapter 149 or any other applicable law, and who shall certify that he or she
is able to furnish labor that can work in harmony with all other elements of
labor employed or to be employed on the work.
“Governmental body”, a
city, town, district, regional school district, county, or agency, board,
commission, authority, department or instrumentality of a city, town, district,
regional school district or county, and all other public agencies which are not
a state agency or building authority.
“Minor informalities”,
minor deviations, insignificant mistakes, and matters of form rather than
substance of the proposal or contract document which can be waived or corrected
without prejudice to other offerors, potential offerors, or the public agency.
“Person”, any natural
person, business, partnership, corporation, union, committee, club, or other
organization, entity or group of individuals.
“Public agency”, a
department, agency, board, commission, authority, or other instrumentality of
the commonwealth or political subdivision of the commonwealth or 2 or more
subdivisions thereof.
“Responsible”, demonstrably
possessing the skill, ability and integrity necessary to faithfully perform the
work called for by a particular contract, based upon a determination of
competent workmanship and financial soundness in accordance with this section
and section 44D of chapter 149.
“Responsive offeror”, a
person who has submitted a proposal which conforms in all respects to the
requests for proposals.
“State agency”, a state
agency, board, bureau, department, division, section, or commission of the
commonwealth.
(b) A public agency may, in
the manner provided by this section, contract for the procurement of energy
management services. Such contracts may include terms of 10 years or less.
Contracts which include cogeneration projects shall have terms of 20 years or
less. The public agency shall solicit competitive sealed proposals through a
request for proposals. At least 1 week prior to soliciting proposals for a
contract pursuant to this section, a public agency shall notify the secretary
in writing, in such form and including such information as the secretary shall
prescribe by regulation, of the agency’s intent to solicit proposals. Such
notification shall, at a minimum, include a complete copy of the agency’s
request for proposals. An acknowledgment of receipt, in such form and by
including such information as the secretary shall prescribe by regulation,
shall be issued to the public agency upon successful compliance with the
requirements of this paragraph.
Requests for proposals for
an energy management services contract to be entered into on behalf of a state
agency or a building authority, shall be developed jointly by the division of
capital asset management and maintenance and the using agency. Such proposals
shall only be solicited by the division of capital asset management and
maintenance after the commissioner of said division has given his prior written
approval, and no contract for energy management services shall be valid unless
approved and signed by said commissioner. Said commissioner may delegate to
state agencies and building authorities the authority to enter into such
contracts with an estimated construction cost of less than $200,000. Such
delegation shall be in writing from the commissioner to the regulating agency
or building authority.
The request for proposals
published by a public agency under this section shall include: (i) the time and
date for receipt of proposals and the address of the office to which the
proposals are to be delivered; (ii) a description of the services to be
procured, including specific requirements and all evaluation criteria that will
be utilized by the state agency or building authority; and (iii) proposed
contract terms and conditions and an identification of such terms and
conditions which shall be deemed mandatory and nonnegotiable. The request for
proposals may incorporate documents by reference, provided that the request for
proposals specifies where prospective offerors may obtain the documents. The
public agency shall make copies of the request for proposals available to all
persons on an equal basis. Public notice of the request for proposals shall
conform to the procedures set forth in subsection (1) of section 44J of chapter
149. Proposals shall be opened publicly, in the presence of 2 or more
witnesses, at the time specified in the request for proposals, and shall be
available for public inspection.
The provisions of sections
44A and 44B and sections 44E to 44H, inclusive, of chapter 149 shall not apply
to contracts procured pursuant to this section. The provisions of section 44D
of said chapter 149 shall apply as appropriate to proposals submitted for
contracts under this section, and every such proposal shall be accompanied by:
(i) a copy of a certificate of eligibility issued by the commissioner of the
division of capital asset management and maintenance; and (ii) an update
statement. The offeror’s qualifications shall be evaluated by the division of
capital asset management and maintenance in a manner designated by the
commissioner of said division. If the public agency determines that any offeror
is not responsible or eligible, the public agency shall reject the offer and
give written notice of such action to the division of capital asset management
and maintenance.
State agencies and building
authorities shall award contracts under this section to the lowest offeror
demonstrably possessing the skill, ability, and integrity necessary to perform
faithfully energy management services.
Payments under a contract
for energy management services may be based in whole or in part on any cost
savings attributable to a reduction in energy and water consumption due to the
contractor’s performance or revenues gained due to the contractor’s services
which are aimed at energy and water cost savings.
(c) The provisions of this
subsection shall apply to a governmental body procuring contracts under this
section.
Unless no other manner of
description suffices, and the governmental body so determines in writing,
setting forth the basis for the determination, all requirements shall be
written in a manner which describes the requirements to be met without having
the effect of exclusively requiring a proprietary supply or service or a
procurement from a sole source.
Subject to a governmental
body’s authority to reject, in whole or in part, any and all proposals, as
provided in this section, a governmental body shall unconditionally accept a
proposal without alternation or correction, except as provided in this
paragraph. An offeror may correct, modify, or withdraw a proposal by written
notice received in the office designated in the request for proposals prior to
the time and date set for opening the proposals. After proposal opening, an
offeror may not change any provisions of the proposal in a manner prejudicial
to the interests of the governmental body or fair competition. The governmental
body shall waive minor informalities or allow the offeror to correct them. If a
mistake and the intended proposal are clearly evident on the face of the
proposal document, the governmental body shall correct the mistake to reflect
the intended correction and so notify the offeror in writing, and the offeror
may not withdraw the proposal. An offeror may withdraw a proposal if a mistake
is clearly evident on the face of the proposal but the intended correction is
not similarly evident.
The governmental body shall
evaluate each proposal and award each contract based solely on the criteria set
forth in the request for proposals. Such criteria shall include, but not be
limited to, all standards by which the governmental body will evaluate
responsiveness, responsibility, qualifications of the offeror, technical merit
and cost to the governmental body. The request for proposals shall specify the
method for comparing proposals to determine the proposal offering the lowest
overall cost to the governmental body, taking into consideration
comprehensiveness of services, energy or water cost savings, costs to be paid
by the governmental body and revenues to be paid to the governmental body. If
the governmental body awards the contract to an offeror who did not submit the
proposal offering the lowest overall cost, the governmental body shall explain
the reason for the award in writing.
The evaluations shall
specify revision, if needed, to each proposal which should be obtained by
negotiation prior to awarding the contract to the offeror of the proposal. The
governmental body may condition an award on successful negotiation of the
revisions specified in the evaluation, and shall explain in writing the reasons
for omitting any such revision from a plan incorporated by reference in the
contract.
(d) The public agency may
cancel a request for proposals, or may reject in whole or in part any and all
proposals when the public agency determines that cancellation or rejection
serves the best interests of the public agency.
The public agency shall
state in writing the reason for a cancellation or rejection. The public agency
shall promptly publish in the central register notice of the offeror awarded
the contract. The public agency shall, within 30 days, file a copy thereof with
the secretary.
The secretary, in
consultations with the commissioner of the division of capital asset management
and maintenance, shall promulgate regulations for the procurement of energy
management services under this section, provided however, that the commissioner
of the division of capital asset management and maintenance shall promulgate
regulations for services to be procured for state agencies and building
authorities; and provided, further, that regulations affecting the operations
of housing authorities within the jurisdiction of the department of housing and
community development shall be promulgated in consultation with the director of
housing and community development. Such regulations may limit the scope of
services procured and the duration of contracts, and shall include any
requirements that the secretary or commissioner of the division of capital
asset management and maintenance deems necessary to promote prudent management
of such contracts at the appropriate facilities. Such regulations shall require
the submission, at least annually, of such information as the secretary or
commissioner of the division of capital asset management and maintenance may
deem necessary in order to monitor the costs and benefits of contracts for
energy management services.
(e) The secretary shall
enforce the requirements of this section and regulations promulgated hereunder
as they relate to public agencies except for state agencies and building
authorities and shall have all the necessary powers to require compliance
therewith. The commissioner of the division of capital asset management and
maintenance shall enforce all such regulations as they relate to state agencies
and building authorities. Any order of the secretary under this subsection
shall be effective and may be enforced according to its terms, and enforcement
thereof shall not be suspended or stayed by the entry of an appeal. The
superior court for Suffolk county shall have jurisdiction over appeals of
orders of the secretary under this subsection, and shall also have jurisdiction
upon application of said secretary to enforce all orders of said secretary
under this subsection. The burden of proof shall be upon the appealing party to
show that the order of said secretary is invalid. An aggrieved person shall not
be required to seek an order from said secretary as a condition precedent to
seeking any other remedy.
Section 15. (a) As used in
this section, the following words shall have the following meanings:—
“Eligible”, able to meet
all requirements for offerors or bidders set forth in this section including,
without limitation, being certified by the division of capital asset management
and maintenance as eligible to provide energy management systems services and
not debarred from bidding under section 44C of chapter 149 or any other
applicable law.
“Energy conservation
measures”, measures involving modifications or maintenance and operating
procedures of a building or facility and installations therein, which are
designed to reduce energy consumption in such building or facility, or the
installation or, modification of an installation in a building or facility
which is primarily intended to reduce energy consumption.
“Energy conservation
projects”, projects to promote energy conservation, including but not limited
to, energy conserving modification to windows and doors; caulking and
weather-stripping; insulation, automatic energy control systems; hot water
systems; equipment required to operate variable steam, hydraulic and ventilating
systems; plant and distribution system modifications including replacement of
burners, furnaces or boilers; devices for modifying fuel openings; electrical
or mechanical furnace ignition systems; utility plant system conversions;
replacement or modification of lighting fixtures; energy recovery systems; and
cogeneration systems.
“Energy management
services”, a program of services, including energy audits, energy conservation
measures, energy conservation projects, or a combination thereof, and building maintenance
and financing services, primarily intended to reduce the cost of energy and
water in operating 1 or more buildings, which may be paid for, in whole or in
part, by cost savings attributable to a reduction in energy and water
consumption which result from the services.
“Energy management
systems”, the design and installation of systems or maintenance programs to
conserve energy use within a building, including, without limitation,
performance-contracting energy saving projects; the installation or
modification of new and existing equipment which will reduce energy and water
consumption associated with heating, ventilation, and air conditioning system,
lighting system, building envelope, domestic hot water system, and other energy
and water using devices; and the work associated with monitoring and verifying
project savings and the study or design of the subject work, whether performed
directly or managed through subcontractors.
“Energy savings”, a
measured reduction in fuel, energy, operating or maintenance costs resulting
from the implementation of 1 or more energy management services when compared
with an established baseline of previous fuel, energy, operating or maintenance
costs, including, but not limited to, future capital replacement expenditures
avoided as a result of equipment installed or services performed pursuant to
the guaranteed energy savings contract.
“Guaranteed energy savings
contract”, a contract for the evaluation, recommendation or implementation of 1
or more energy management services in which payments are based, in whole or in
part, on any energy savings attributable to the contract.
“Person”, any natural
person, business, partnership, corporation, union, committee, club or other
organization, entity or group of individuals.
“Public agency”, a city,
town or district, including a regional school district, or a combination of 2
or more such cities, towns or districts, including regional school districts,
or a department, agency, board, commission, authority or other instrumentality
of the commonwealth.
“Qualified provider”,
responsible and eligible person able to meet all requirements set forth in this
section, and not debarred from bidding under section 44C of chapter 149 or any
other applicable law and experienced in the design, implementation and
installation of energy savings measures.
“Request for
qualifications”, a solicitation directed to qualified providers issued by a
public agency to obtain energy management services pursuant to a guaranteed
energy savings contract subject to this section. The request for qualifications
shall include the following: (i) the name and address of the public agency;
(ii) the name, address, title and phone number of a contact person; (iii) The
date, time and place where qualifications must be received; (iv) a description
of the services to be procured, including a facility profile with a detailed
description of each building involved and accurate energy consumption data for
the most recent 2 year period, stated objectives for the program, a list of
building improvements to be considered or required and a statement as to
whether the proposed improvements will generate sufficient energy savings to
fund the full cost of the program; (v) The evaluation criteria for assessing
the qualifications; (vi) a statement that the public agency may cancel the
request for qualifications or may reject in whole or in part any and all energy
savings measures when the public agency determines that cancellation or
rejection serves the best interests of the public; (vii) any other stipulations
and clarifications the public agency may require, which shall be clearly
identified in the request for qualifications.
“Responsible”, demonstrably
possessing the skill, ability and integrity necessary to faithfully perform the
work called for by a particular contract, based upon a determination of
competent workmanship and financial soundness in accordance with section 44D of
chapter 149.
(b) A public agency may
choose to use this section in the procurement of energy management services as
an alternative to the procedures set out in section 11C. Nothing in this
section shall preclude any such agency from choosing to proceed thereafter
under said section 11C. A public agency may enter into a guaranteed energy
savings contract in order to achieve energy savings at facilities in accordance
with this section. All energy savings measures shall comply with current local,
state and federal construction, and environmental codes and regulations. Prior
to entering into a guaranteed energy savings contract, a public agency shall
issue a request for qualifications. Public notice of the request for
qualifications shall conform to the procedures set forth in subsection (1) of
section 44J of chapter 149. At least 1 week before soliciting a request for
qualifications for a guaranteed energy savings contract, a public agency shall
notify the commissioner of energy resources in writing, in a form and including
information as the commissioner of the division of capital asset management and
maintenance shall prescribe by regulation, of the agency’s intent to solicit
qualifications. The notification, at a minimum, shall include a copy of the
agency’s request for qualifications. An acknowledgment of receipt, in a form
and including information as the commissioner of the division of capital asset
management and maintenance shall prescribe by regulation, shall be issued by
the commissioner of energy resources to the public agency upon successful
compliance with the requirements of this subsection. Qualifications shall be
opened publicly, in the presence of 2 or more witnesses, at the time specified
in the request for qualifications, and shall be available for public
inspection. The provisions of sections 44A and 44B and sections 44E to 44H,
inclusive, of said chapter 149 shall not apply to contracts procured pursuant
to this section. Section 44D of said chapter 149 shall apply as appropriate to
qualifications submitted for contracts under this section, and every such
qualification shall be accompanied by (1) a copy of a certificate of
eligibility issued by the commissioner of the division of capital asset
management, and (2) by an update statement.
The public agency shall
evaluate the qualified providers to determine which best meets the needs of the
public agency by reviewing the following: (i) references of other energy
savings contracts performed by the qualified providers; (ii) the certificate of
eligibility and update statement provided by the qualified providers; (iii) the
quality of the products proposed; (iv) the methodology of determining energy
savings; (v) the general reputation and performance capabilities of the
qualified providers; (vi) substantial conformity with the specifications and
other conditions set forth in the request for qualifications; (vii) the time
specified in the qualifications for the performance of the contract; and (viii)
any other factors the public agency considers reasonable and appropriate, which
factors shall be made a matter of record.
Respondents shall be
evaluated only on the criteria set forth in the request for qualifications.
The public agency shall
conduct discussions with, and may require public presentations by, each person
who submitted qualifications in response to the request for qualifications
regarding their qualifications, approach to the project and ability to furnish
the required services. The public agency shall select in order of preference 3
such persons, unless fewer persons respond, they consider to be the most highly
qualified to perform the required services. The agency may request, accept and
consider proposals for the compensation to be paid under the contract only
during competitive negotiations conducted pursuant to subsection (f).
(c) The public agency may
cancel a request for qualifications, or may reject in whole or in part any and
all proposals when the public agency determines that cancellation or rejection
serves the best interests of the public agency. The public agency shall state
in writing the reason for a cancellation or rejection.
(d) The public agency shall
negotiate a contract with the most qualified person at compensation which the
public agency determines is fair, competitive and reasonable. Should the public
agency be unable to negotiate a satisfactory contract with the person
considered to be the most qualified at a price the public agency determines to
be fair, competitive and reasonable, negotiations with that person shall be
formally terminated. The public agency shall then undertake negotiations with
the second most qualified person. Failing accord with the second most qualified
person, the public agency shall terminate those negotiations and then undertake
negotiations with the third most qualified person. Should the public agency be
unable to negotiate a satisfactory contract with any of the selected persons,
the public agency may select additional qualified providers who responded to
the request for qualifications, in the order of their competence and
qualification, and continue negotiations in accordance with this subsection
until either an agreement is reached or the public agency cancels the request
for qualifications.
(e) The decision of a
public agency as defined by section 1, regarding the selection of a qualified
provider shall be final and not subject to appeal except on the grounds of
fraud or collusion.
(f) The public agency shall
provide public notice of the meeting at which it proposes to award the
guaranteed energy savings contract, of the name of the parties to the proposed
contract, and of the purpose of the contract. The public notice shall be made
at least 10 days before the meeting. The public agency shall promptly publish
in the central register notice of the award and those public agencies other
than state agencies and building authorities shall notify the commissioner of
energy resources of such award and provide a copy of the guaranteed energy
savings contract.
(g) The guaranteed energy
savings contract shall include a written guarantee of the qualified provider
that either the amount of energy savings guaranteed will be achieved or the
qualified provider shall reimburse the public agency for the shortfall amount.
Methods for measurement and verification of guaranteed savings shall conform to
the most recent standards established by the Federal Energy Management Program
of the United States Department of Energy. The secretary shall enforce the
requirements of this section and regulations promulgated hereunder as they
relate to public agencies except for state agencies and building authorities
and shall have all the necessary powers to require compliance therewith. The
commissioner of the division of capital asset management and maintenance shall
enforce the regulations as they relate to state agencies and building
authorities. Any order of the commissioner of energy resources under this
subsection shall be effective and may be enforced according to its terms, and
enforcement thereof shall not be suspended or stayed by the entry of an appeal.
The superior court for Suffolk County shall have jurisdiction over appeals of orders
of the commissioner of energy resources under this subsection, and shall also
have jurisdiction upon application of the commissioner to enforce all orders of
the commissioner under this subsection. The burden of proof shall be upon the
appealing party to show that the order of the commissioner is invalid. An
aggrieved person shall not be required to seek an order from the commission as
a condition precedent to seeking any other remedy. The value of guaranteed
savings may represent either all, or part of annual payments at the discretion
of the agency. The guaranteed energy savings contract term for providing a
guarantee, measurement and verification, maintenance, service and installment
or lease payments shall not exceed 20 years. The division of capital asset
management and maintenance, in concurrence with the state inspector general,
shall promulgate regulations for the procurement of energy management services,
including establishing safeguards to be included in guaranteed energy savings
contracts. The regulations shall require the submission, at least annually, of
information as the commission of the division of capital asset management and
maintenance and the state inspector general consider necessary in order to
monitor the costs and benefits of contracts for energy management services.
(h) Payments under a
contract for energy management services may be based in whole or in part on any
cost savings attributable to a reduction in energy and water consumption due to
the contractor’s performance or revenues gained due to the contractor’s
services which are aimed at energy and water cost savings.
(i) Unless no other manner
of description suffices, and the public agency so determines in writing,
setting forth the basis for the determination, all requirements shall be
written in a manner which describes the requirements to be met without having
the effect of exclusively requiring a proprietary supply or service, or a
procurement from a sole source.
(j) Before entering into a
guaranteed energy savings contract, the public agency shall require the
qualified provider to file with the public agency a payment or a performance
bond relating to the installation of energy savings measures, in an amount
equal to 100 per cent of the estimated contract value from a surety company
licensed to do business in the commonwealth and whose name appears on United
States Treasury Department Circular 570.
(k) Guaranteed energy
savings contracts may extend beyond the fiscal year in which they become
effective.
Section 16. There shall be
within the department of clean energy, a division of green communities. The
purpose of said division is to assist the commonwealth’s municipalities and
other governmental bodies: reduce energy consumption and costs, reduce
pollution, facilitate the development of renewable and other clean energy
resources, and create local jobs related to the building of clean energy
facilities and the installation of energy-efficient equipment. The division may
also award grants to provide technical assistance to municipalities qualifying
as a green community pursuant to this section. The director of the division
shall be responsible for the administration and oversight of a green
communities program as established herein, and shall, apply and disburse monies
and revenues of the Massachusetts Renewable Energy Trust Fund, established
pursuant to section 22 of chapter 21A.
(a) In establishing a green
community certification, the division shall consider whether municipalities
have undertaken any other initiatives to reduce energy consumption, promote
energy conservation or promote the development of clean energy generating
facilities including, but not limited to, the following: (i) entering into
long-term contracts, as may be defined by the division, for the purchase of clean
energy; (ii) establishing an energy use baseline inventory for municipal
buildings, street and traffic lighting and putting in place a comprehensive
plan to reduce said baseline; (iii) adopting a policy of purchasing only fuel
efficient municipal vehicles whenever such vehicles are commercially available
and practicable; (iv) adopting an ordinance or by-law requiring any new
commercial and industrial real estate development projects to minimize the
life-cycle cost of the facility by utilizing energy efficiency, water
conservation, or other clean energy technologies; (v) adopting a policy
instituting a comprehensive energy education program for residential users of
electricity; and (vi) aligning local building codes with the state energy
efficiency code established pursuant to chapter 143. The division shall
promulgate such regulations as are necessary to implement this program.
(b) The division shall
establish a green communities program. The purpose of said program shall be to
provide financial assistance, in the form of grants and loans, to
municipalities and other governmental bodies that qualify as green communities
pursuant to this section, to finance the costs of studying, designing,
constructing and implementing energy efficiency activities, including but not
limited to, energy conservation measures and projects; procurement of energy
management services; installation of energy management systems; adoption of
demand side reduction initiatives; adoption of energy efficiency policies; and
the siting and construction of clean energy projects on municipally owned land.
The division may also award grants to provide technical assistance to
municipalities applying to qualify as a green community pursuant to this
section.
(c) In order to qualify as
a green community a municipality shall: (i) file an application with the
division in a form and manner to be prescribed by the division; and (ii) accept
a designation as a qualifying clean energy community by the clean energy
facility site screening committee and permit the construction of a minimum of 1
clean energy generating facility within the community on municipally or
privately owned real property identified by the director as real property
which could potentially be utilized to site clean energy generating facilities,
clean energy research and development facilities, and clean energy
manufacturing facilities pursuant to section 18; (iii) adopt an expedited
application and permitting process pursuant to which clean energy generating
facilities or clean energy research and development or manufacturing facilities
may be sited within the municipality; provided, however, that said process
shall not exceed 1 year from the date of initial application to the date of
final approval; provided, further, that in lieu of adopting such an expedited
application and permitting process a municipality may agree to transfer the
right, without recourse to the municipality, to site clean energy generating
facilities within the municipality to the energy facilities siting board established
pursuant to section 64H of chapter 164; or (iv) agree to enter into a contract
wherein the municipality shall purchase a fixed percentage of electricity
consumed by municipally owned buildings, street and traffic lights from clean
energy sources; provided, however, that the maximum percentage of clean energy
generation required to satisfy this subsection shall not exceed 20 per cent of
a municipality’s total electric load as determined by the division.
(d) In determining the
funding priority for municipalities qualifying as green communities pursuant to
subsection (c), the director shall consider whether municipalities have
undertaken any other initiatives to reduce energy consumption, promote energy
conservation or promote the development of clean energy generating facilities
including, but not limited to, the following: (1) entering into long-term
contracts, as may defined by the director, for the purchase of clean energy to
satisfy subsection (c); (2) establishing an energy use baseline inventory for
municipal buildings, street and traffic lighting and putting in place a
comprehensive plan to reduce said baseline; (3) adopting a policy of purchasing
only fuel efficient municipal vehicles whenever such vehicles are commercially
available and practicable; (4) adopting an ordinance or by-law requiring any
new commercial and industrial real estate development projects to minimize the
life-cycle cost of the facility by utilizing energy efficiency, water
conservation, or other clean energy technologies; (5) adopting a policy
instituting a comprehensive energy curriculum for use by the public schools
within the municipality; (6) adopting a policy instituting a comprehensive
energy education program for residential users of electricity; and (7) aligning
local building codes with the state energy efficiency code established pursuant
to chapter 143.
(e) The division shall
establish general policy, guidelines and standards regarding energy
conservation measures and projects; procurement of energy management services;
installation of energy management systems; adoption of demand side reduction
initiatives; adoption of energy efficiency policies; and the siting and
construction of renewable energy projects on municipally owned land and shall
administer the green communities program in accordance with this chapter. The
director of the division shall be responsible for the administration and
oversight of the green communities program as established herein, and shall, in
consultation with the secretary, apply and disburse monies and revenues of
Massachusetts Renewable Energy Trust, established pursuant to section 22 of
chapter 21A, alternative compliance payment funds, collected pursuant to 225
CMR 14.08(4); and other funds as proscribed herein.
(f) Funding for the green
communities program in any 1 fiscal year shall be: (1) available from the
revenues generated annually by the Massachusetts Renewable Energy Trust Fund,
established pursuant to section 22 of chapter 21A; (2) up to 100 per cent of
the revenues generated annually by the alternative compliance payment funds,
established pursuant to 225 CMR 14.08(4); and (3) other funds as proscribed
herein.
(g) A municipality or other
governmental body served by a municipal lighting plant exempt from section 22
of chapter 21A and sections 19 and 20 of chapter 25, shall not be eligible for
designation as a green community pursuant to this section.
(h) The division shall
establish rules, regulations and guidelines for the administration and
enforcement of this section, including, but not limited to, establishing
applicant criteria, application forms and procedures, and energy efficiency
product requirements.
Section 17. The department
shall design and implement a competitive bidding procedure for the procurement
of electric generation from clean energy generating facilities on behalf of
municipalities seeking assistance with said procurement pursuant to section 16;
provided further, that any such competitive bids received shall include payment
options with rates that remain uniform for a minimum period of 5 years; and
provided further, that in lieu of designing and implementing a competitive
bidding process as required by this section, the director may become a member
of one or more programs organized and administered by the Massachusetts Health
and Educational Facilities Authority or its subsidiary organization for the
purpose of such competitive group purchasing of electricity.
Section 18. There shall be
within the department of clean energy, a clean energy site screening committee.
The committee shall consist of 7 members, the commissioner of the department
of clean energy who shall serve as chair; the secretary of the executive office
of transportation and construction or his designee; the secretary of the
executive office of economic development or his designee; the secretary of the
executive office of energy and environmental affairs or his designee; the
commissioner of the division of capital asset management and maintenance or his
designee; the director of the Massachusetts municipal association or his
designee; and the chair of the board of directors of the Massachusetts
association of regional planning agencies or his designee.
The committee shall develop
a statewide list of public and private real property which could be utilized to
site clean energy generating facilities, clean energy research and development
facilities, and clean energy manufacturing facilities. In determining the
suitability of sites to be included on the statewide list the committee shall
consider, without limitation, the energy capacity needs of the electric system,
development and construction costs, the proximity of the site to the
distribution and transmission system, the environmental impact of a project,
the impact upon the public use and enjoyment of the potential site, the impact
upon abutters to the potential site, the economic impact upon the host
municipality and the region, and such other matters as the committee shall deem
appropriate; provided, however, that notwithstanding any local zoning bylaw or
ordinance to the contrary, if a clean energy generating facility other than a
waste-to-energy facility is proposed in any district zoned for industrial use
or on any real property designated and accepted pursuant to this section, the
use shall be allowed as of right, subject to the imposition of reasonable
conditions through a site plan review process.
The committee shall
annually submit a statewide list of any public and privately owned real
property which could be utilized to site clean energy generating facilities,
clean energy research and development facilities, and clean energy
manufacturing facilities to the secretary of energy and environmental affairs.
The secretary shall provide written notification to the host municipality of
any real property within its jurisdiction that has been identified as real
property which could potentially be utilized to site clean energy generating
facilities, clean energy research and development facilities, and clean energy
manufacturing facilities pursuant to this chapter. Said notice shall be sent to
the city manager in the case of a city under a Plan E form of government, the
mayor and city council in the case of all other cities, the chairman of the
board of selectmen in the case of a town, the county commissioners, the
regional planning agency, and the representatives to the general court
representing said host municipality. The secretary shall set forth in such
notice a description of the real property, including the identity of the owners
of said real property, and a declaration that the real property is eligible for
designation as a qualifying clean energy property. The host municipality shall,
within 180 days from receipt of said notification, notify the secretary whether
it will accept the designation of the real property as a qualifying clean
energy property. A host municipality which accepts the designation of at least
1 parcel of real property identified as real property which could potentially
be utilized to site clean energy generating facilities, clean energy research
and development facilities, and clean energy manufacturing facilities shall,
upon satisfying the requirements of section 16, qualify as a green community.
The committee shall, on or
before December 31, annually submit a written report of its activities. Said
report shall be submitted to the chair of the senate committee on ways and
means, the chair of the house committee on ways and means, the chairs of the
joint committee on telecommunications, utilities and energy, and the clerk of
the senate and the clerk of the house of representatives.
SECTION 29. Section 2 of
chapter 25B of the General Laws, as appearing in the 2006 Official Edition, is
hereby amended by striking out, in line 11, the words “division of energy
resources” and inserting in place thereof the following words:- department of
clean energy.
SECTION 30. Section 1 of
chapter 30B of the General Laws, as appearing in the 2006 Official Edition, is
hereby amended by striking out, in line 97, the words “division of energy
resources” and inserting in place thereof the following words:- department of
clean energy.
SECTION 31. Section 4E of
chapter 40J is hereby repealed.
SECTION 32. Section 1 of
chapter 62 of the General Laws, as so appearing, is hereby amended by adding
the following 2 paragraphs:-
(p) “Alternative fuel
vehicle", a vehicle powered by alternative fuel and having the following
attributes: the capability of operating only on an alternative fuel; original
use commencing with the taxpayer; and acquisition by the taxpayer for use or
lease, but not for resale.
(q) "Hybrid
vehicle", (i) a vehicle which draws propulsion energy from onboard sources
of stored energy which are both: (a) an internal combustion or heat engine
using combustible fuel; and (b) a rechargeable energy storage system; (ii) a
vehicle which, in the case of a passenger automobile, medium duty passenger
vehicle or light truck: (a) for 2002 and later model vehicles, has received a
certificate of conformity under the Clean Air Act and meets or exceeds the
equivalent qualifying California low emission vehicle standard under section
243(e)(2) of the Clean Air Act for that make and model year; (b) for 2004 and
later model vehicles, has received a certificate that the vehicle meets or
exceeds the Bin 5 Tier II emission level established in regulations prescribed
by the administrator of the Environmental Protection Agency under section
202(i) of the Clean Air Act for that make and model year vehicle; and (c) and
achieves an increase of 10 per cent fuel efficiency as compared to the average
vehicle of its class as defined by the federal Environmental Protection Agency.
SECTION 33. Part B of
section 3 of said chapter 62, as so appearing, is hereby amended by inserting
after paragraph 9 the following paragraph:-
(9½). For taxable years
beginning on January 1, 2008, in the case of an individual who purchases a
hybrid or alternative fuel vehicle there shall be a deduction in the amount of
$2,000 for a single person, for a person who qualifies as a head of household
under subsection (b) of section 2 of chapter 62 or a married couple in the
taxable year in which the purchase is made. The department of revenue may
require a proof of purchase to be submitted with a return in order to be
eligible for the deduction.
SECTION 34. Chapter 63 of
the General Laws is hereby amended by inserting after section 38T following
section:-
Section 38U. (a) A credit
of up to $300 or 15 per cent, whichever is less, of the aggregate cost of the
purchase and installation of a solar water heating system shall be allowed per
return against the taxes imposed by this chapter for the cost of the retail
purchase and installation of a solar water heating system in a commercial
building.
(b) The commissioner of
revenue shall promulgate rules and regulations necessary for the implementation
of this section. The rules and regulations shall include provisions to prevent
the generation of multiple credits with respect to the same property.
(c) A credit allowed under
this section for the purchase and installation of a solar water heating system
in a commercial building between November 1, 2008 and March 31, 2009 may be
applied for the taxable year 2008. The taxpayer may carry over and apply to the
tax, in taxable year 2008, the portion of those credits which exceed the tax
for taxable year 2009 subject to regulations by the commissioner of revenue.
SECTION 35. Section 221 of
chapter 112 of the General Laws, as appearing in the 2006 Official Edition, is
hereby amended by inserting after the word “components”, in lines 19 and 20,
the following words:- , as well as home energy score.
SECTION 36. Section 94 of
chapter 143 of the General Laws, as so appearing, is hereby amended by
inserting after the word “ninety-six”, in line 61,the following words:- and
including the energy conservation code.
SECTION 37. Said section
94 of said chapter 143, as so appearing, is hereby further amended by adding
the following paragraph:-
(m) To adopt, at least once
every 3 years, the latest edition of the model energy conservation code, the
International Energy Conservation Code, published by the International Code
Council. No amendments to the Massachusetts energy conservation code shall be
adopted that increase energy consumption in buildings. The board of building
regulations and standards jointly with the department of clean energy shall
adopt regulations to certify and train qualified energy code inspectors and
require that all new construction and major renovations pass inspections by
certified energy code inspectors demonstrating full compliance with the
Massachusetts energy conservation code.
SECTION 38. Section 1 of
chapter 164 of the General Laws, as so appearing, is hereby amended by
inserting after the definition of “Articles of organization” the following
definition:—
“Basic service”, the
electricity services provided to a retail customer upon either (i) the
inability of a customer to receive competitive supply from a supplier pursuant
to subsection (d) of section 1B, (ii) the failure of the retail customer to
elect competitive supply from a supplier pursuant to said subsection (d) of
said section 1B, or (iii) upon the expiration and the retail customers failure
to renew a competitive supply contract pursuant to said subsection (d) of said
section 1B or other means.
SECTION 39. Said section 1
of said chapter 164 of the General Laws, as so appearing, is hereby further
amended by striking out the definition of “Default Service”.
SECTION 40. Said chapter
164 is hereby further amended by striking out section 1 and inserting in place
thereof the following section:
Section 1. As used in
this chapter the following words shall, unless the context otherwise requires,
have the following meanings:
"Aggregator'', an
entity which groups together electricity customers for retail sale purposes,
except for public entities, quasi-public entities or authorities, or subsidiary
organizations thereof, established pursuant to the laws of the commonwealth.
“Alternative energy
development”, shall include, but not be limited to, solar energy; wind; wood;
alcohol; hydroelectric; biomass energy systems; renewable non-depletable; and
recyclable energy sources.
"Alternative energy
producer'', any person, firm, partnership, association, public or private
corporation, or any agency, department, board, commission or authority of the
commonwealth or of a subdivision of the commonwealth, that owns or operates a
cogeneration facility or small power production facility as defined in this
section, and does not engage in the retail sale of electricity other than sales
to customers that are within the confines of an industrial park, which park
existed prior to March first, nineteen hundred and eighty-two, and in which
park there existed as of said date electrical generating capacity of more than
fifteen megawatts.
“Alternative energy
property”, any property powered in whole or in part by the sun, wind, water,
biomass, alcohol, wood, or any renewable, non-depletable or recyclable fuel,
and property related to the exploration, development, processing,
transportation, and distribution of the aforementioned energy resources.
"Ancillary
services'', those functions which support generation, transmission, and
distribution, and shall include the following services: (1) reactive
power/voltage control; (2) loss compensation; (3) scheduling and dispatch; (4)
load following; (5) system protection service; and (6) energy imbalance
service.
"Articles of
organization'', (i) the articles of organization of a corporation which were
filed subsequent to October 1, 1973, (ii) any agreement of association, special
act of incorporation, and other charter documents, including by-law provisions
and stockholder votes in effect prior to October 1, 1973,, which, subsequent to
that date, would be included in articles of organization, and all amendments
thereto, effective prior to October 1, 1973, and (iii) any of the following
amendments made or filed from time to time subsequent to October1, 1973:
(1) a certificate of a
vote establishing a series filed pursuant to section 26 of chapter 156B;
(2) articles of amendment
filed pursuant to section 8B;
(3) restated articles of
organization filed pursuant to section 8C;
(4) certificates of
confirmation of proceedings filed pursuant to section 8D;
(5) articles of consolidation
or merger filed pursuant to section 102A;
(6) articles of
dissolution filed pursuant to section 100 of chapter 156B;
(7) a certificate as to
the revival of a corporation filed pursuant to section 108 of chapter 156B.
“Clean energy”, products
or services that improve operational performance, productivity or efficiency,
while reducing energy consumption, pollution, waste of natural resources,
fossil fuel use or energy costs.
"Cogeneration
facility'', any electrical generating unit having a power production capacity
which, together with any other facilities located at the same site, is not
greater than thirty megawatts and which produces electric energy and steam or
other form of useful energy utilized for industrial, commercial, heating or
cooling purposes, and employs a fuel other than oil or gas as its primary
energy source, except that gas may be used if it is produced from coal,
biomass, solid waste, or wood and oil may be used (1) in combination with coal,
in a mixture not exceeding 70 per cent oil, or (2) during any modifications to
any existing electrical generating facility undertaken for the purpose of
enabling such facility to employ, except during any periods of maintenance or
repair, a fuel other than oil or gas as its primary energy source. A
cogeneration facility shall also include any electric generating unit having a
power production capacity which, together with any other facilities located at
the same site, is not greater than 30 megawatts and which produces electric
energy and steam or other form of useful energy utilized for industrial,
commercial, heating or cooling purposes that is within the confines of an
industrial park, which park existed prior to March 1, 1982 and, in which park
there existed, as of said date, electrical generating capacity of more than 15
megawatts, and in which park there existed, since said date, a cogeneration
facility, as defined herein, or a small power production facility.
“Committee”, the clean
energy site screening committee established pursuant to section 4.
"Contract termination
fee'', the fees owed by the distribution company to its wholesale power
supplier, as determined and approved by the department of public utilities.
"Corporation'', a
corporation to which this chapter applies, as set forth in section three.
"Default service'',
the electricity services provided to a retail customer upon either the (i)
failure of a distribution company or supplier to provide such electricity
services as required by law or as contracted for under the standard service
offer, (ii) the completion of the term of the standard service offer, or (iii)
upon the inability of a customer to receive standard service transition rates
during the term of the standard service offer pursuant to section 1B.
"Department'', the
department of public utilities.
"Distributed
generation'', a generation facility or renewable energy facility connected
directly to distribution facilities or to retail customer facilities which
alleviate or avoid transmission or distribution constraints or the installation
of new transmission facilities or distribution facilities.
"Distribution'', the
delivery of electricity over lines which operate at a voltage level typically
equal to or greater than 110 volts and less than 69,000 volts to an end-use
customer within the commonwealth. The distribution of electricity shall be
subject to the jurisdiction of the department of public utilities.
"Distribution
company'', a company engaging in the distribution of electricity or owning,
operating, or controlling distribution facilities; provided, however, a
distribution company shall not include any entity which owns or operates plant
or equipment used to produce electricity, steam, and chilled water, or any
affiliate engaged solely in the provision of such electricity, steam, and
chilled water, where the electricity produced by such entity or its affiliate
is primarily for the benefit of hospitals and non-profit educational
institutions, and where such plant or equipment was in operation prior to January
1, 1986.
"Distribution
facility'', plant or equipment used for the distribution of electricity and
which is not a transmission facility, a cogeneration facility, or a small power
production facility.
"Distribution
service'', the delivery of electricity to the customer by the electric
distribution company from points on the transmission system or from a
generating plant, at distribution voltage.
"Electric company'',
a corporation organized under the laws of the commonwealth for the purpose of
making by means of water power, steam power or otherwise and selling or
transmitting and selling, or transmitting only, or distributing and selling, or
only distributing, electricity within the commonwealth, or authorized by
special act so to do, even though subsequently authorized to make or sell gas;
provided, however, that electric company shall not mean an alternative energy
producer; and provided, further, that a distribution company shall not include
any entity which owns or operates a plant or equipment used to produce
electricity, steam, and chilled water, or any affiliate engaged solely in the
provision of such electricity, steam, and chilled water, where the electricity
produced by such entity or its affiliate is primarily for the benefit of
hospitals and nonprofit educational institutions, and where such plant or
equipment was in operation before January 1, 1986; and provided, further, that
electric company shall not mean a corporation only transmitting and selling, or
only transmitting, electricity unless such corporation is affiliated with an
electric company organized under the laws of the commonwealth for the purpose
of distributing and selling or distributing only, electricity within the
commonwealth.
"Electric service'',
the provision of generation, transmission, distribution, or ancillary services.
“End-user”, any individual,
corporation, firm or subsidiary of any firm that is an ultimate consumer of
petroleum products and which, as part of its normal business practices,
purchases or obtains petroleum products from a wholesaler or reseller and
receives delivery of that product.
“Energy audit”, a
determination of the energy consumption characteristics of a building or
facility which identifies the type, size, and rate of energy consumption of
such building or facility and the major energy using systems of such building
or facility; determines appropriate energy conservation maintenance and
operating procedures; and indicates the need, if any, for the acquisition and
installation of energy conservation measures or alternative energy property.
“Energy conservation”,
shall include, but not be limited to, the modification of or change in
operation of real or personal property in a manner likely to improve the
efficiency of energy use, and shall include energy conservation measures, and
any process to audit or identify and specify energy and cost savings.
“Energy conservation
measures”, measures involving modifications of maintenance and operating
procedures of a building or facility and installations therein, which are
designed to reduce energy consumption in such building or facility, or the
installation, modification of an installation in a building or facility which
is primarily intended to reduce energy consumption.
“Energy conservation
projects”, projects to promote energy conservation, including but not limited
to energy conserving modification to windows and doors; caulking and
weatherstripping; combined heat and power facilities; insulation, automatic
energy control systems; hot water systems; equipment required to operate
variable steam, hydraulic, and ventilating systems; plant and distribution
system modifications including replacement of burners, furnaces or boilers;
devices for modifying fuel openings; electrical or mechanical furnace ignition systems;
utility plant system conversions; replacement or modification of lighting
fixtures; energy recovery systems; and, cogeneration systems.
"Energy efficiency'',
the implementation of an action, policy, or measure which entails the
application of the least amount of energy required to produce a desired or
given output.
“Energy management
services”, a program of services, including energy audits, energy conservation
measures, energy conservation projects, or a combination thereof, and building
maintenance and financing services, primarily intended to reduce the cost of
energy and water in operating one or more buildings, which may be paid for in
whole or in part, by cost savings attributable to a reduction in energy and
water consumption which result from such services.
"FERC'', the federal
energy regulatory commission.
"Gas company'', a
corporation organized for the purpose of making and selling, or distributing
and selling, gas within the commonwealth, even though subsequently authorized
to make or sell electricity; provided, however, that gas company shall not mean
an alternative energy producer.
"Generation'', the act
or process of transforming other forms of energy into electric energy, or the
amount of electric energy so produced.
"Generation company'',
a company engaged in the business of producing, manufacturing, or generating
electricity or related services or products including, but not limited to,
renewable energy generation attributes for retail sale to the public.
"Generation
facility'', plant or equipment used to produce, manufacture, or otherwise
generate electricity and which is not a transmission facility.
"Generation service'',
the provision of generation and related services to a customer.
“Green Building”,
buildings, including but not limited to, homes, offices, schools, and hospitals
constructed or renovated to incorporate design techniques, technologies, and
materials that lessen its dependence on fossil fuels and minimize its overall
negative environmental impact.
"Horizontal market power'',
a situation in which one or a few market participants combined have undue
concentration in the ownership of facilities at the same level in the chain of
production resulting in the ability to influence price to his or their own
benefit.
"Mitigation'', all
actions or occurrences which reduce the amount of money that a distribution
company seeks to collect through the transition charge, including those amounts
resulting from both matters within the company's control and from matters not
wholly within the company's control. Mitigation shall, in accordance with the
provisions of section 1G, include, but not be limited to, the following: (1)
sales of capacity, energy, ancillary services, reserves, and emission
allowances from generating facilities that are wholly or partly owned by the
company; (2) sales of capacity, energy, ancillary services, reserves, and
emission allowances from generating facilities with which the company has a
power purchase agreement; (3) adjustments to the company's minimum obligations
under purchase power agreements that decrease such obligations, such as those
that may be obtained through contract buy-out or renegotiation; (4) residual
value; (5) sales and voluntary write downs of company generation-related
assets; (6) any market value in excess of net book value associated with the
sale, lease, transfer, or other use of the assets of the company unrelated to
the provision of transmission service or distribution service at regulated
prices, including, but not limited to, rights-of-way, property, and intangible
assets when the costs associated with the acquisition of those assets have been
reflected in the company's rates for regulated service; provided, however, that
the department of public utilities shall determine their market values based on
the highest prices that such assets could reasonably realize after an open and
competitive sale; and (7) any allowed refinancing of stranded assets or other
debt obligations as provided by law.
“Non-renewable energy
supply and resource development”, shall include, but not be limited to,
gasoline, natural gas, coal, nuclear energy, petroleum both offshore and
onshore, and facilities related to the exploration, development, processing,
transportation, and distribution of such resources and programs established for
the allocation of supplies of such resources and the development of supply
shortage contingency plans.
“Petroleum products”,
propane, gasoline, unleaded gasoline, kerosene, #2 heating oil, diesel fuel,
kerosene base jet fuel, and #4, 5, and 6 residual oil for utility and
non-utility uses, and all petroleum derivatives, whether in bond or not, which
are commonly burned to produce heat, power, electricity, or motion or which are
commonly processed to produce synthetic gas for burning.
"Primary energy
source'', the fuel or fuels used, except during periods of maintenance or
repair, for the generation of electric energy, except that such term does not
include the minimum amounts of fuel required for ignition, start-up, testing,
flame stabilization, and control uses, and minimum amounts of fuel required to
alleviate or prevent unanticipated equipment outages and emergencies declared
by the governor, directly affecting the public health, safety, and welfare
which would result from electric power outages.
"Renewable energy'' or
"renewables'', either (i) resources whose common characteristic is that
they are nondepletable or are naturally replenishable but flow-limited, or (ii)
existing or emerging non-fossil fuel energy sources or technologies, which have
significant potential for commercialization in New England and New York, and
shall include the following: solar photovoltaic or solar thermal electric
energy; wind energy; ocean thermal, wave, or tidal energy; geothermal; fuel
cells; landfill gas; waste-to-energy which is a component of conventional
municipal solid waste plant technology in commercial use; naturally flowing
water and hydroelectric; and low-emission, advanced biomass power conversion
technologies, such as gasification using such biomass fuels as wood,
agricultural, or food wastes, energy crops, biogas, biodiesel, or organic
refuse-derived fuel. The following technologies or fuels shall not be
considered renewable energy supplies: coal, oil, natural gas except when used
in fuel cells, and nuclear power.
“Reseller”, any person,
corporation, firm or subsidiary of any firm that carries on the trade or
business of purchasing petroleum products and reselling them without
substantially changing their form, or any wholesaler or retail seller of
electricity or natural gas.
"Residual value'', the
value of electric company assets, not including the income which may be
obtained through generation facility operation.
"Retail access'', the
use of transmission and distribution facilities owned by a transmission company
or a distribution company to transmit or distribute electricity from a
generation company, supplier, or aggregator to retail customers.
"Retail customer'', a
customer who purchases electricity for its own consumption.
"Securitization'', the
use of rate reduction bonds to refinance debt and equity associated with
transition costs pursuant to section 1H.
"Service territory'',
the geographic area in which a distribution company provided distribution
service on July 1, 1997.
"Small power
production facility'', a facility which is any electrical generating unit which
produces electric energy solely by the use, as a primary energy source, of
biomass, waste, wind, water, wood, geothermal, solar energy, or any combination
thereof, or produces gas if it is produced from coal, biomass, solid waste or
wood, and has a power production capacity which, together with any other
facilities located at the same site is not greater than 30 megawatts.
“Steam distribution
company,” any person, firm, partnership, association or private corporation
organized under the laws of the commonwealth for the purpose of operating any
plant or equipment or facilities for the manufacture, production, transmission,
furnishing or distribution of steam to or for the public for compensation
within the commonwealth, and provided further, that steam distribution company
shall not mean an entity producing or distributing steam exclusively on private
property and solely for the entity’s use or the use of the entity’s tenant, and
not for distribution or sale.
"Supplier'', any
supplier of generation service to retail customers, including power marketers,
brokers, and marketing affiliates of distribution companies, except that no
electric company shall be considered a supplier.
"Supplying electricity
in bulk'', engaging in the business of making and selling or distributing and
selling electricity to electric companies, railroads, street railways or
electric railroads, or to municipalities for municipal use or re-sale to their
inhabitants, or to persons, associations or corporations under limitations
imposed by special law or under section 90 or corresponding provisions of
earlier laws.
"Transition charge'',
the charge that provides the mechanism for recovery of an electric company's transition
costs.
"Transition costs'',
the embedded costs as determined pursuant to section 1H which remain after
accounting for maximum possible mitigation, subject to determination by the
department of public utilities.
"Transmission'', the
delivery of power over lines that operate at a voltage level typically equal to
or greater than 69,000 volts from generating facilities across interconnected
high voltage lines to where it enters a distribution system.
"Transmission
company'', a company engaging in the transmission of electricity or owning,
operating, or controlling transmission facilities. A transmission company shall
provide transmission service to all generation companies, municipal lighting
plants, suppliers, and load aggregators in the commonwealth, whether affiliated
or not, on comparable, nondiscriminatory prices and terms, pursuant to
provisions of federal law and regulation.
"Transmission
facility'', plant or equipment used for the transmission of electricity, as
determined by the federal energy regulatory commission pursuant to federal law
and regulation.
"Transmission
service'', the delivery of electricity to a retail customer, supplier,
distribution company, or wholesale customer by a transmission company.
"Unbundled rates'',
rates designed to separate the costs of providing generation, the costs of
transmission and distribution services, and transition and general access
charges.
"Vertical market
power'', a situation in which one or a few market participants, having joint
ownership of facilities at differing levels of the chain of production, such as
generation, transmission, and distribution, possess the ability to use such
joint ownership to influence price to the participants' own benefit.
“Wholesaler”, any person,
corporation, firm or any part or subsidiary of any firm which supplies, sells,
transfers, or otherwise furnishes petroleum products to resellers or end-users.
"Wholesale generation
company'', a company engaged in the business of producing, manufacturing, or
generating electricity for sale at wholesale only.
SECTION 41. Section 1E
of said chapter 164, as so appearing, is hereby amended by striking out
subsection (c) and inserting in place thereof the following subsection:-
(c) Each distribution,
transmission, and gas company shall file a report with the department by March
1 of each year comparing its performance during the previous calendar year to
the department’s service quality standards and any applicable national
standards as may be adopted by the department. The department shall be
authorized to levy a penalty against any distribution, transmission, or gas
company which fails to meet the service quality standards in an amount up to
and including the equivalent of 4 per cent of such company’s transmission and
distribution service for the previous calendar year.
SECTION 42. Section 1F of
said chapter 164, as so appearing, is hereby amended by striking out, in line
90, the words "division of energy resources" and inserting in place
thereof the following words:- department of clean energy.
SECTION 43. Subparagraph
(i) of paragraph (4) of section 1F of said chapter 164, as so appearing, is
hereby amended by striking out the second, third and fourth paragraphs.
SECTION 44. Said section 1F
of said chapter 164, as so appearing, is hereby further amended by striking out
subparagraph (ii).
SECTION 45. Said section 1F
of said chapter 164, as so appearing, is hereby further amended by striking out
subparagraph (iii) and inserting in place thereof the following subparagraph:-
(iii) A residential
customer eligible for low-income discount rates shall receive the service on
demand. Each distribution company shall periodically notify all customers of
the availability of and method of obtaining low-income discount rates. An
existing residential customer eligible for low-income discount on the date of
start of retail access who orders service for the first time from a
distribution company shall be offered standard basic service by that
distribution company.
SECTION 46. Section 1G of
said chapter 164, as so appearing, is hereby amended by striking out, in lines
366 and 367, the words “government regulations” and inserting in place thereof
the following words:— telecommunications, utilities and energy.
SECTION 47. Section
69G of said chapter 164, as so appearing, is hereby amended by inserting after
the definition of “Board” the following definition:-
“Clean energy generating
unit”, any bulk electric generating unit, including associated buildings and
structures and electric transmission lines, operating at a gross capacity of 1
megawatt or more, which generates all of its electricity from 1 or more of the
following sources: solar photovoltaic and solar thermal energy; wind energy;
geothermal energy; ocean thermal, wave, or tidal energy; fuel cells; landfill
gas; naturally flowing water and hydroelectric; low emission advanced biomass
power conversion technologies using such biomass fuels as wood, agricultural,
or food wastes, energy crops, biogas, biodiesel, or organic refuse-derived fuel
storage and conversion technologies connected to qualifying generation
projects, as well as combined heat and power facilities which burn only natural
gas; and such other types of facilities as the secretary of the executive
office of energy and environmental affairs may from time to time designate.
SECTION 48. Said section
69G of said chapter 164, as so appearing, is hereby further amended by striking
out the definition of “Generating facility” and inserting in place thereof the
following definition:-
“Generating facility”, a
clean energy generating unit located in a municipality which has transferred
its authority to permit the siting of clean energy generating units within the
municipality to the board pursuant to section 16 of chapter 25A and any
generating unit designed for or capable of operating at a gross capacity of 100
megawatts or more, including associated buildings, ancillary structures,
transmission and pipeline interconnections that are not otherwise facilities,
and fuel storage facilities.
SECTION 49. Section 69H of
said chapter 164, as so appearing, is hereby amended by striking out, in line
18, the words "division of energy resources" and inserting in place
thereof the following words:- department of clean energy.
SECTION 50. Section 76D of
said chapter 164, as so appearing, is hereby amended by inserting after the
word “companies”, in lines 1 to 2, line 14 , the third time it appears, and in
line 20, the second time it appears, in each instance, the following words:-
,steam distribution companies.
SECTION 51. Said section
76D of said chapter 164, as so appearing, is hereby further amended by
inserting after the word “company”, in line 9, the following words:- ,steam
distribution company.
SECTION 52. Said chapter
164 is hereby further amended by inserting after section 76D the following
section:-
Section 76E. The department
shall adopt inspection, maintenance, repair, and replacement standards for the
distribution systems of investor-owned electric and gas utilities doing business
in the commonwealth no later than June 1, 2008. Said standards, which shall be
performance or prescriptive standards, or both, as appropriate, for each
substantial type of distribution equipment or facility, shall provide for
inspection cycles for all overhead and underground facilities and shall
establish a criteria for maintenance and replacement of said facilities to
minimize or prevent service interruptions and to ensure high quality, safe and
reliable service. In establishing the standards required by this section, the
department shall consider cost, local geography and weather, applicable codes,
national electric industry practices, sound engineering judgment, and
experience. The department shall require each utility to maintain detailed
records on its inspection and maintenance activities and to submit annual
compliance reports to the department.
The department shall
conduct an annual review to determine whether the standards established
pursuant to this section have been satisfied. If the department finds that the
standards have not been satisfied, the department may order appropriate
sanctions, including penalties in the form of rate reductions or monetary
fines.
SECTION 53. Said chapter
164 is hereby further amended by striking out section 96, as appearing in the
2006 Official Edition, and inserting in place thereof the following section:-
Section 96. Companies
subject to this chapter and their holding companies may, notwithstanding any
other provisions of this chapter or of any general or special law, consolidate
or merge with 1 another, or may sell and convey their properties to another of
such companies or to a wholesale generation company and such other company may
purchase such properties, provided that such purchase, sale, consolidation or
merger, and the terms thereof, have been approved, at meetings called
therefore, by vote of the holders of at least two thirds of each class of stock
outstanding and entitled to vote on the question of each of the contracting
companies, and that the department, after notice and a public hearing, has
determined that such purchase and sale or consolidation or merger, and the
terms thereof, are consistent with the public interest; provided, however, that
in making such a determination the department shall at a minimum consider:
proposed rate changes, if any; the long term strategies that will assure a
reliable, cost effective energy delivery system; any anticipated interruptions
in service; or other factors which may negatively impact customer service; and
provided, further, that the purchase or sale of properties by, or the
consolidation or merger of, wholesale generation companies shall not require
departmental approval.
SECTION 54. Said chapter
164 is hereby further amended by striking out section 115A, as so appearing,
and inserting in place thereof the following section:—
Section 115A. (a) Each
meter for measuring gas provided to a consumer by a gas company, or municipal
lighting plant shall, not later than 7 years from the date of installation or
replacement, be removed by said company or municipal lighting plant from the
premises of the consumer and replaced with such a meter which has been newly
tested, sealed and stamped in accordance with law.
(b) Any gas company or
municipal lighting plant which violates any provision of this section, unless
in the opinion of the department such violation is due to unavoidable cause,
accident or lack of materials, shall forfeit $50 for each meter which is not
removed and replaced as provided herein. Forfeitures incurred under this
section shall not be included as expenses in connection with the establishment
of rates by said companies. The department may promulgate rules and regulations
for the administration and enforcement of this section.
SECTION 55. Section 116B
of said chapter 164, as so appearing, is hereby amended by adding the following
paragraph:-
Any gas company found by
the department to have knowingly violated this section shall be subject to a
fine of not less than $500 nor more than $1,000 for each violation. Penalties
and fees incurred under this section shall not be included as expenses in
connection with the establishment of rates by said company.
SECTION 56. Section 134 of
said chapter 164, as so appearing, is hereby amended by striking out, in lines
31, 51 and 75, the words "division of energy resources" and inserting
in place thereof, in each instance, the following words:- department of clean
energy.
SECTION 57. Said section
134 of said chapter 164, as so appearing, is hereby further amended by striking
out, in lines 45, 49, 56, 64, and in line 74, the words “standard offer” and
inserting in place thereof, in each instance, the following words:- basic
service
SECTION 58. Said chapter
164 is hereby further amended by adding the following 5 sections:-
Section 138. As used in
sections 138 to 140, inclusive, the following words shall, unless the context
otherwise requires, have the following meanings:-
“Class I net metering
credit”, a credit equal to the excess kilowatt-hours by time of use billing
period (if applicable) multiplied by the sum of the distribution company’s (i)
default service kilowatt-hour charge in the ISO-NE load zone where the customer
is located, (ii) distribution kilowatt-hour charge, (iii) transmission
kilowatt-hour charge, and (iv) transition kilowatt-hour charge. This shall not
include the demand-side management and renewable energy kilowatt-hour charges
set forth in sections 19 and 20 of chapter 25. The credit for a Class I net
metering facility not using solar or wind as its energy source will be the
average monthly clearing price at the ISO-NE.
“Class I net metering
facility”, any plant or equipment that is used to produce, manufacture, or
otherwise generate electricity and that is not a transmission facility and that
has a design capacity of 60 kilowatts or less.
“Class II net metering
credit”, a credit equal to the excess kilowatt-hours by time of use billing
period (if applicable) multiplied by the sum of the distribution company’s (i)
default service kilowatt-hour charge in the ISO-NE load zone where the customer
is located, (ii) distribution kilowatt-hour charge, (iii) transmission
kilowatt-hour charge, (iv) transition kilowatt-hour charge. This does not
include the demand-side management and renewable energy kilowatt-hour charges.
“Class II net metering
facility”, a Solar-net-metering facility or wind-net-metering facility that has
a generating capacity of more than 60 kilowatts and not more than 1 megawatt.
“Class III net metering
credit”, a credit equal to the excess kilowatt-hours by time of use billing
period (if applicable) multiplied by the (i) distribution company’s default
service kilowatt-hour charge in the ISO-NE load zone where the Customer is
located, (ii) transmission kilowatt-hour charge, and (iii) transition
kilowatt-hour charge. This does not include the demand-side management and
renewable energy kilowatt-hour charges set forth in sections 19 and 20 of
chapter 25.
“Class III net metering
facility”, a solar-net-metering or wind-net-metering facility with a generating
capacity of more than 1 megawatt but less than or equal to 2 megawatts.
“Customer”, a customer of a
distribution company that is entitled to the net metering credits and includes
the net metering facility itself.
“ISO-NE,” the independent system
operator – New England.
“Neighborhood”, a
geographic area including and limited to a unique community of interests that
is recognized as such by residents of such area and which in addition to
residential and undeveloped properties may encompass commercial properties.
“Neighborhood net metering
facility”, a Class I, II, or III net metering facility that: (a) is owned by a
group of 10 or more residential customers that reside in a single neighborhood
and are served by a single distribution company; and (b) is located within the
same neighborhood as the customers that own the facility.
“Neighborhood net metering
credit”, a credit equal to the excess kilowatt-hours by time of use billing
period, if applicable, multiplied by the (i) distribution company’s default
service kilowatt-hour charge in the ISO-NE load zone where the customer is
located, (ii) transmission kilowatt-hour charge, and (iii) transition
kilowatt-hour charge. This shall not include the demand-side management and
renewable energy kilowatt-hour charges set forth in sections 19 and 20 of
chapter 25.
“Net metering”, the
process of measuring the difference between electricity delivered by a
distribution company and electricity generated by a Class I, Class II, Class
III, or neighborhood net metering facility and fed back to the distribution
company.
“Solar net metering
facility”, a facility for the production of electrical energy that uses
sunlight to generate electricity and is interconnected to a distribution
company.
“Wind net metering facility”,
a facility for the production of electrical energy that uses wind to generate
electricity and is interconnected to a distribution company.
Section 139. (a) A
distribution company customer that uses electricity generated by a Class I or
Class II net metering facility may elect net metering as follows:-
(1) If the electricity
generated by the Class I or Class II net metering facility during a billing
period exceeds the customer’s kilowatt-hour usage during the billing period,
the customer shall be billed for 0 kilowatt-hour usage and the excess Class I
or Class II net metering credits shall be credited to the customer’s account.
Credits may be carried forward from month to month. A Class I or Class II Wind
or solar net metering facility may designate one or more customers that are
customers of the same distribution company to which the Class I or Class II
wind or solar net metering facility is interconnected and located in the same
ISO-NE load zone to receive such credits in amounts attributed by the Class I
or Class II wind or solar net metering facility. Written notice of the
identity of the customers so designated and the amounts of the credits to be
attributed to such customers shall be in a form as the distribution company
shall reasonably require.
(2) If the customer’s
kilowatt-hour usage exceeds the electricity generated by the Class I or Class
II net metering facility during the billing period, the customer shall be
responsible for the balance at the distribution company’s applicable rate.
(b) A distribution company
customer that uses electricity generated by a Class III net metering facility
may elect net metering as follows:-
(1) If the electricity
generated by the Class III net metering during a billing period exceeds the
customer’s kilowatt-hour usage during the billing period, the customer shall be
billed for 0 kilowatt-hour usage and the excess Class III net metering credits
shall be credited to the customer’s account. Credits may be carried forward
from month to month. A Class III wind or solar net metering facility may
designate 1 or more customers that are customers of the same distribution
company to which the Class III wind or solar net metering facility is
interconnected and are located in the same ISO-NE load zone to receive such
credits in amounts attributed to such customers by the Class III wind or solar
net metering facility. Written notice of the identity of the customers so
designated and the amounts of the credits to be attributed to such customers
shall be in a form as the distribution company shall reasonably require.
(2) If the customer’s
kilowatt-hour usage exceeds the electricity generated by the Class III net
metering facility during the billing period, the customer shall be responsible
for the balance at the distribution company’s applicable rate.
(c) The distribution
portion of any Class I, Class II, or Class III net metering credits and
distribution company delivery charges displaced by a Class I, Class II, or
Class III net metering facility shall be aggregated by the distribution company
and billed to all customers on an annual basis through a uniform per
kilowatt-hour surcharge or surcharges.
(d) The distribution
company shall have 1 or more tariffs, as approved or as may be approved from
time to time by the department, regarding necessary interconnection studies and
the type, costs, and timeframe for installing metering and distribution system
upgrades to accommodate these installations. Such tariffs shall require that
all facilities maintain adequate insurance as required under the tariffs.
Distribution companies shall be prohibited from imposing special fees on Class
I net metering facilities, such as backup charges and demand charges, or
additional controls, or liability insurance, as long as the facility meets the
other requirements of the interconnection tariff and all relevant safety and
power quality standards.
Prior to providing net
metering service under this section, a Class II or III net metering facility
shall provide all necessary information to and cooperate with the distribution
utility to which it is interconnected to enable the distribution utility to
obtain the appropriate asset identification for reporting generation to ISO-NE.
(e) A Class I, II or III
net metering facility shall not be an “electric utility,” “generation company,”
“aggregator,” “supplier,” “energy marketer” or “energy broker” within the
meaning of those terms as defined in sections 1 and 1F.
(f) The aggregate capacity
of net metering shall not exceed 1 per cent of the distribution company’s peak
load. For the purpose of calculating the aggregate capacity, the capacity of a
Solar net metering facility shall be eighty per cent of the facility’s direct
current rating at standard test conditions and the capacity of a Wind net metering
facility shall be the nameplate rating.
Section 140. A neighborhood
net metering facility shall elect net metering as follows:-
(a) If the electricity
generated by the neighborhood net metering facility during a billing period
exceeds its kilowatt-hour usage during the billing period, the neighborhood net
metering facility shall be billed for 0 kilowatt-hour usage and the excess
neighborhood net metering credits shall be credited to those customers
identified by the neighborhood net metering facility as being served by the
same company to which the neighborhood net metering facility is interconnected,
residing in the same neighborhood in which is neighborhood net metering
facility is located, and have an ownership interest in the neighborhood net metering
facility. The amount of the excess neighborhood net metering credits to be
attributed to each such customer shall be determined by the allocation provided
by the neighborhood net metering facility. Credits may be carried forward by
such customers from month to month. Written notice of the identity of the
customers so designated and the allocation of the credits to be attributed to
such customers shall be in such form as the distribution company shall
reasonably require.
(b) The department shall
promulgate rules and regulations necessary to carry out this section,
including, but not limited to, further definition of the term “neighborhood”
and limitations on the number of customers that may be designated by
neighborhood net metering facilities to receive neighborhood net metering
credits.
Section 141. In all
decisions or actions regarding rate designs, the department shall consider the
impacts of such actions including new financial incentives on the successful
development of energy efficiency and on-site generation. Where the scale of
on-site generation would have an impact on affordability for low-income
customers, a fully compensating adjustment shall be made to the low-income rate
discount.
Section 142. The
department shall continue to remove any impediments to the development of
efficient, low-emissions distributed generation, including combined heat and
power, taking into account the need to appropriately allocate any associated
costs in a fair and equitable manner. For the purposes of this section,
“efficient, low-emissions” shall mean an efficiency of 60 per cent or greater
on an annual basis and emissions lower than required by the department of
environmental protection.
SECTION 59. The General
Laws are hereby further amended by inserting after chapter 164A the following
chapter:-
Chapter 164B
REGULATION
OF STEAM DISTRIBUTION COMPANIES
Section 1. The department
shall have supervision of facilities operated by steam distribution companies
for the sole purpose of ensuring public safety and shall establish reasonable
rules and regulations pertaining to the construction and operation of steam
distribution facilities and equipment used in manufacturing and transporting
steam. The department shall keep itself informed as to the methods, practices,
and condition of all facilities and equipment associated with the distribution
of steam, including ducts and conduits, and shall make such examinations and
investigations of the steam distribution system as necessary, including the
adequacy of operation, maintenance and capital improvements to insure safe
operation of facilities operated by a steam distribution company.
Section 2. Each steam
distribution company shall file a certified copy of its certificate of
incorporation and bylaws with the department. By March first of each year each
company shall file a report on safety related matters as the department may
specify, including but not limited to number, duration and causes of all steam
leakage incidents, distribution system accidents and service outages, time
elapsed between the incident and the return to service following a repair. The
department is authorized to levy fines or penalties against any steam
distribution company for failure to comply with regulations promulgated by the
department. In determining the appropriateness of any fine or penalty, the
department shall consider the seriousness of the violation and the good faith
compliance efforts of the steam distribution company.
Section 3. The department
shall provide written notice to attorney general of any violation of this
chapter. The department’s authority shall not diminish the authority of any
municipality to regulate steam distribution, nor shall it diminish the
authority of the department of public safety pursuant to chapter 146.
SECTION 60. Chapter 268A
of the General Laws is hereby amended by striking out section 8B, as appearing
in the 2006 Official Edition, and inserting thereof the following section:—
Section 8B. No member or
employee of the department of public utilities and the department of clean
energy, within 1 year after his service has ceased or terminated, be employed
by, or lobby said office on behalf of, any company or regulated industry over
which said office had jurisdiction during the tenure of such member of the
office.
SECTION 61. There is
hereby established a commission which shall study the siting of energy
facilities in the commonwealth. Said study shall include, but not be limited
to, the following: (i) the development of a procedure for coordinating and consolidating
applications to construct generating facilities between and among the energy
facilities siting board, the department of environmental protection, and other
appropriate agencies, to enable one-stop shopping, so-called, for necessary
permits or certificates or other appropriate streamlining of the permitting
system; (ii) the expansion of such coordinated procedures to other energy
facilities, if appropriate; (iii) possible changes to the energy facilities
siting board's procedures for reviewing electric and gas transmission lines in
light of recent and proposed changes in the structure and regulation of the
electric and gas industries, including regional approaches to the siting of
such facilities; (iv) clarification of the energy facilities siting board's
jurisdiction over the re-powering of existing generating facilities at existing
sites and the appropriate standards for reviewing such re-powerings; (v) the
development of coordinated procedures to encourage the reuse of existing
industrial sites for the development of generating facilities; (vi) the issue
of application fees paid by developers to the energy facilities siting board
and the correlation of such fees to the board's procedures, as statutorily
revised pursuant to this act, in reviewing such applications; provided, that
said study shall include, but not be limited to, recommendations, if any, on
reducing the application fee paid by developers to the board in light of the
board's statutorily revised standards of review of such applications pursuant
to this act; (vii) the establishment of a site characterization and suitability
commission within the department of environmental protection, which would
promulgate criteria to be applied to sites included in an application before
the energy facilities siting board and rule on suitability of a proposed site
as before said application is approved; and (viii) the possibility of requiring
applicants to provide either (a) evidence that the proposed facility would
employ the best available and most efficient technology to control and reduce
water withdrawals, or (b) a description of the environmental impacts, costs,
and reliability of the water withdrawal method chosen and an explanation of why
the proposed technology was chosen.
Said commission shall
consist of the secretary of the executive office of energy and environmental
affairs, or his designee, who shall serve as the chairman of said study
commission; the commissioner of the department of environmental protection, or
his designee; a member of the energy facilities siting board other than the
secretary of energy and environmental affairs, who shall be selected to serve
on said commission by the governor; the house and senate chairmen of the joint
committee on telecommunications, utilities and energy; the house and senate
chairmen of the joint committee economic development and emerging technologies;
and 10 members to be appointed by the governor, 1 of whom shall be a
representative of the Massachusetts Municipal Association, 1 of whom shall be a
representative of the Massachusetts Association of Health Boards, 2 of whom
shall be a representative of an environmental protection organization, 2 of
whom shall be representatives of the electric industry, including one member of
the electric generation industry and one member representing an electric
utility, 1 of whom shall be a representative of the gas industry, 1 of whom
shall represent residential ratepayers, and 2 of whom shall be recommended by
the Massachusetts AFL-CIO. Said study commission shall issue a final report,
which shall include the results of its review and analysis, to the joint
committee on telecommunications, utilities and energy, and the house and senate
committees on ways and means on or before January 1, 2009.
SECTION 62. Commencing on
July 1, 2008, and continuing for a period of 5 years thereafter, each
distribution company, as defined in section 1 of chapter 164 of the General
Laws, shall be required twice in that 5 year period to solicit proposals from
renewable energy developers and, provided reasonable proposals have been
received, enter into cost effective long-term contracts to facilitate the
financing of renewable energy generation within the jurisdictional boundaries
of the commonwealth including state waters, or in adjacent federal waters.
Said distribution companies may also voluntarily solicit additional such
proposals over the 5 year period. The timetable and method for solicitation
and execution of such contracts shall be proposed by the distribution company
in consultation with the department of clean energy and shall be subject to
review and approval by the department. This long-term contracting obligation
shall be separate and distinct from the electric distribution companies’
obligation to meet applicable annual Renewable Portfolio Standard, hereinafter
referred to as RPS requirements, set forth in section 11F of chapter 25A of the
General Laws.
For purposes of this
section, a long-term contract is defined as a contract with a term of 10 to 15
years. In developing the provisions of proposed long term contracts, the
distribution company shall consider multiple contracting methods, including
long-term contracts for Renewable Energy Certificates, hereinafter referred to
as RECs, for energy, and for a combination of both RECs and energy. The
electric distribution company shall select a reasonable method of soliciting
proposals from renewable energy developers, which may include public
solicitations, individual negotiations, or other methods. The distribution company
may decline to consider contract proposals having terms and conditions that it
determines would require the contract obligation to place an unreasonable
burden on the distribution company’s balance sheet. The distribution company
shall consult with the division of energy resources regarding its choice of
contracting methods and solicitation methods. All proposed contracts shall be
subject to department of public utilities review and approval.
The department of public
utilities and the department of clean energy each shall adopt regulations
consistent with this section. The regulations shall: (a) allow renewable
energy developers to submit proposals for long-term contracts conforming to the
contracting methods specified in the second paragraph of this section; (b)
require that any contracts executed by the distribution company pursuant to
such proposals are filed with and approved by the department of public
utilities before they become effective. As part of its approval process, the
department of public utilities shall consider the recommendations of the office
of the attorney general relevant to such contracts, which recommendations shall
be submitted to the department within 45 days following the filing of such
contracts with the department. The department of public utilities shall take
into consideration both the potential costs and benefits of such contracts, and
shall approve such contracts only upon a finding that they are a cost effective
mechanism for procuring renewable energy on a long-term basis; (c) provide for
an annual remuneration for the contracting distribution company equal to 4% of
the annual payments under the contract to compensate said company for accepting
the financial obligation of the long term contract, such provision to be acted
upon by the department of public utilities at the time of contract approval;
and (d) require that the renewable energy generating source to be used by such
developer pursuant to such proposal meet the following criteria: (i) have a
commercial operation date, as verified by the department of clean energy, on or
after January 1, 2008; (ii) be located within the jurisdictional boundaries of
the commonwealth including state waters, or in adjacent federal waters; (iii)
be qualified by the department of clean energy as eligible to participate in
the Massachusetts RPS program, pursuant to section 11F of chapter 25A of the
general laws, and to sell RECs pursuant to such program; (iv) be determined by
the department to: (1) provide enhanced electricity reliability within the
commonwealth; (2) contribute to moderating system peak load requirements; (3)
be cost effective to Massachusetts electric rate payers over the term of the
contract; and (4) where feasible, create additional employment in the
Commonwealth.
The distribution company
shall not be obligated to enter into long-term contracts pursuant to this
section that would, in the aggregate, exceed 3 per cent of the total energy
demand from all distribution customers of the distribution company in its
service territory. As long as the electric distribution company has entered
into long term contracts in compliance with this section, the electric
distribution company shall not be required by regulation or order to enter into
contracts with terms of more than three years in meeting its applicable annual
renewable portfolio standard requirements set forth in section 11F of chapter
25A of the General Laws, unless the department finds that such contracts are in
the best interest of customers, and provided further that the electric
distribution company may execute such contracts voluntarily, subject to
department of public utilities approval.
An electric distribution
company may elect to use any energy purchased under such contracts for resale
to its customers, and may elect to retain RECs for purpose of meeting its
applicable annual renewable portfolio standard requirements set forth in
section 11F of chapter 25A of the General Laws. If the energy and RECs are not
so used, such companies shall sell such purchased energy into the wholesale
spot market, and shall sell such purchased RECs through a competitive bid
process. Notwithstanding the foregoing, the department shall conduct periodic
reviews to determine the impact on the energy and REC markets of the
disposition of energy and RECs hereunder, and may issue reports making
recommendations for legislative changes if it determines that actions are being
taken that will adversely affect the energy and REC markets.
In the event the
distribution company sells the purchased energy into the wholesale spot market
and auctions the RECs as described in sixth paragraph, the distribution company
shall net the cost of payments made to projects under the long-term contracts
against the proceeds obtained from the sale of energy and RECs, and the
difference shall be credited or charged to all distribution customers through a
uniform fully reconciling annual factor in distribution rates, subject to
review and approval of the department of public utilities. The reconciliation
process shall be designed so that the distribution company recovers all costs
incurred under such contracts.
In the event the RPS
requirements of section 11F of chapter 25 should ever terminate, the obligation
to continue periodic solicitations to enter into long-term contracts shall
cease, provided that any contracts already executed and approved by the
department of public utilities shall remain in full force and effect.
On or before July 1, 2010
and annually until 2012 when the long term contracting requirement expires
pursuant to paragraph 1, the department of clean energy shall assess whether
the long-term contracting requirements set forth in this section reasonably
support the renewable energy goals of the commonwealth as set forth in section
11F of chapter 25A of the General Laws, and whether the alternative compliance
rate established pursuant to said section 11F should be adjusted accordingly.
The provisions of this
section shall not limit consideration of other contracts for RECs or power
submitted by a distribution company for review and approval by the department
of public utilities.
If any provision of this
section is subject to a judicial challenge, the department of public utilities
may suspend the applicability of the challenged provision during the pendency
of the judicial action, until final resolution of the challenge and any
appeals, and shall issue such orders and take such other actions as are
necessary to ensure that the provisions that are not challenged are implemented
expeditiously to achieve the public purposes of this provision.
SECTION 63. (a)
Notwithstanding any general or special law to the contrary, each electric and
gas company in the commonwealth shall provide to the secretary of the executive
office of energy and environmental affairs, a progress report detailing the
status of the arrearage management programs for eligible low-income customers,
pursuant to chapter 164 of the General Laws. Each electric and gas company
shall provide said progress report to the secretary no later than June 1,
2008. The secretary shall review and approve each progress report with such
modifications as the secretary deems appropriate, no later than September 1,
2008. The secretary shall continue to conduct an annual review of such programs
and may at any time order such revisions or modifications as the secretary
deems appropriate. For purposes of this section, an arrearage management
program shall include a plan under which companies work with eligible
low-income customers to establish affordable payment plans and provide credits
to those customers toward the accumulated arrears where such customers comply
with the terms of the program.
(b) The secretary shall
require a company that initially offers a low income customer who has an
arrearage, but whose utility service has not yet been terminated, a payment
plan of not less than 4 months including the initial down payment of 25 per
cent of the balance owed, and the remaining repayment balance amounts shall be
divided equally; provided, however, that the secretary may authorize a
repayment period of less than 4 months for good cause. A company making such a
request shall notify the customer that the request has been made. This
paragraph shall not limit the right of a customer to request a payment plan of more
than 4 months or limit the authority of the secretary to order a payment plan
of more than 4 months either on an individual basis or through revisions to its
billing and termination regulations.
SECTION 64. The secretary
of executive office of energy and environmental affairs shall, in conjunction
with the department of public utilities implement a “energy pay and save”,
hereinafter referred to as EPS pilot program, allowing electric utility
customers to purchase and install renewable energy products in their residences
or commercial facilities, by paying the cost of the system over time through an
additional charge on the customer's electricity bill. The cost of the products
purchased under the pilot program shall be added to the electric utility customer’s
utility bills, as a monthly EPS tariff, and shall be paid until the cost of
purchase and installation of the products is paid off. The payment structure
shall be implemented so that the charge on the electric utility customer’s
utility bill shall be less than the energy savings of that customer over the
course of each given year. Non-payment by the owner of the EPS tariff shall
result in disconnection, and a utility shall be entitled to recover the debt.
The pilot program shall be
established with a minimum of 50 participants and a maximum of 200
participants. The maximum project size for the program shall be $1,000 for
commercial utility customers and $500 for residential utility customers.
Portable electrical cost measures shall not be funded. Quick pay options shall
be investigated, allowing customers to have the option to pay off the entire
balance of the amount financed on the first billing cycle. The program shall be
funded from such sources as determined by the secretary and such funds shall be
used to offset the cost of the program for the utilities, and as such payments
for the purchases are paid to said utilities.
The pilot program shall be
implemented on or before June 1, 2008 and shall expire on December 31, 2008.
The secretary and the department shall issue a final report, which shall
include the results of its review and analysis, to the joint committee on
telecommunications, utilities and energy, and the house and senate committees
on ways and means on or before June 1, 2009.
SECTION 65. On or before
September 1, 2008, each electric distribution company shall file a proposed
plan with the department of public utilities to establish a “smart grid” pilot
program. Each such pilot program shall utilize advanced technology to operate
an integrated grid network communication system in a limited geographic area.
Each pilot program shall include, but not be limited to advanced (“smart”)
meters that provide real time measurement and communication of energy
consumption, automated load management systems embedded within current
demand-side management programs and remote status detection and operation of
distribution system equipment. On or before September 1, 2008, each electric
distribution company shall file a proposal with the department of public
utilities to implement a pilot program that requires time of use or hourly
pricing for commodity service for a minimum of 0.5 per cent of the company’s
customers. A specific objective of the pilot would be to reduce, for those
customers who actively participate in the pilot, peak loads by a minimum of 5
per cent. The programs filed by the distribution company shall include
proposals for rate treatment of incremental program costs. The department
shall review and approve or modify such plans on or before January 1, 2009.
Plans which provide for larger numbers of customers and can show higher bill
savings than outlined above would be eligible to earn incentives as outlined in
an approved plan. Following the completion of the pilot programs, the secretary
of energy and environmental affairs shall submit a report to the joint
committee on telecommunications, utilities and energy no later than February 1,
2011 detailing the operation and results of such programs, including
information concerning changes in consumer’s energy use patterns, an assessment
of the value of the program to both participants and non-participants and
recommendations concerning modification of the programs and further
implementation.
SECTION 66. The secretary
of the executive office of energy and environmental affairs shall establish a 2
year pilot program providing smart meters to residential and commercial
industrial customers along with implementation of phone and e-mail notification
systems to warn those customers of high prices so they can reduce their usage
accordingly.
The secretary shall
establish a demand-response pilot program providing commercial and residential
consumers with the necessary equipment to participate in such a program.
The program shall provide
5,000 smart meters to residential and commercial participants. This shall be a
2 year pilot program beginning in November 1, 2008 and ending on November 1,
2010. The secretary of energy and environmental affairs shall direct electric
utilities located in the commonwealth to install meters capable of recording
hourly energy use at the service location of each customer that elects
real-time pricing. In addition to providing 5,000 meters, the secretary of
energy and environmental affairs shall direct the electric utilities to
implement phone and e-mail notification systems to participants necessary for
participation in the pilot program. This pilot program is intended to help
consumers lower their monthly utility bills and reduce electricity demand.
Following the completion of
the pilot program, the secretary shall submit a report to the joint committee
on telecommunications, utilities and energy, and the house and senate
committees on ways and means on or before March 1, 2011, detailing the
operation and results of the program, including information concerning changes
in customers’ energy use patterns, an assessment of the value of the program to
both participants and non-participants, and recommendations concerning
modification of the program.
SECTION 67. The secretary of
the executive office of energy and environmental affairs shall make
recommendations regarding what supplemental state funds, if any, shall be
expended for the federal Low Income Home Energy Assistance Program, pursuant to
42 U.S.C. Section 8621 et seq., for the purpose of assisting low-income elders,
working families and other households with the purchase of heating oil,
propane, natural gas and electricity and other primary or secondary heating
sources; provided, however, that any recommended expenditures in addition to
any federal funding shall be made in accordance with the state plan submitted
by the department of housing and community development in accordance with said
federal program. The recommendations shall include recommended funding levels and
funding sources. The secretary of the executive office of energy and
environmental affairs shall submit the plan to the joint committee on
telecommunications, utilities and energy on or before October 1, 2008.
SECTION 68. The department
of public utilities shall direct all distribution companies, as defined in
section 1F of chapter 164 of the General Laws, to submit a plan within 60 days
of the effective date of this Act providing for retail access to competitive
sellers of renewable energy generation attributes, whether or not bundled with
electricity. The department shall approve or modify such plan after an
opportunity for notice and comment by all interested persons; provided however,
if a distribution company provides retail access to competitive sellers of
renewable energy generation attributes prior to the effective date of this act,
it shall not be required to file a plan pursuant to this section.
SECTION 69. There is
hereby established a special commission to consist of 3 members of the senate,
including the senate chairman for the joint committee on telecommunications,
utilities and energy who shall serve as co-chairman, and 3 members of the house
of representatives, including the house chairman for the joint committee on
telecommunications, utilities and energy who shall serve as co-chairman, the
commissioner of the department of clean energy or his designee, the secretary
of energy and environmental affairs or his designee and 3 persons to be
appointed by the governor, 1 of whom shall be a representative of the
waste-to-energy industry, and 1 of whom shall be a representative of a consumer
advocacy organization, for the purpose of making an investigation and study
relative to the burning of commercial and demolition waste as it relates to the
Massachusetts Renewable Energy Portfolio Standard Program, established by
section 11F of chapter 25A of the General Laws. Said commission shall report
the results of its investigation and study and its recommendations, if any,
together with drafts of legislation necessary to carry its recommendations into
effect by filing the same with the clerks of the senate and the house of
representatives on or before July 1, 2008.
SECTION 70. (a) On or
before January 1, 2009, the board of registration of home inspectors, in
consultation with the state board of building regulations and standards, the
department of clean energy, and the energy efficiency advisory council, shall
develop requirements and promulgate regulations establishing a home energy
scoring program to be performed as a part of the standard home inspection of
single-family residential dwellings and multiple-family residential dwellings
with fewer than 5 dwelling units performed at the time of sale by inspectors
licensed pursuant to chapter 112 of the General Laws. The board of
registration of home inspectors shall consider other state home scoring
programs, as well as any relevant federal programs.
(b) The board may include
in its regulations any provisions requiring sellers of such dwellings to provide
potential buyers with copies of the prior calendar year’s utility and, if any,
oil heating bills for the dwelling; and, if the seller has not retained such
bills, may include provisions requiring utilities and heating oil distributors
to provide potential sellers billing information for the dwelling for the prior
calendar year.
(c) The regulations shall
include provisions for training, licensure, and standards of professional and
ethical conduct for home energy scoring personnel, and provisions for the
establishment of reasonable fees for their services, to be paid to such
personnel by the sellers or purchasers of dwellings.
(d) Before implementation
of any regulations established pursuant to this section, the board of
registration of home inspectors shall report to the senate and house committees
on ways and means, and the committees on consumer protection and professional
licensure and telecommunications, utilities and energy on the perceived added
costs, if any, to sellers or purchasers of dwellings relating to the
implementation of this section. Said report shall include any recommendations
deemed appropriate by the board, including but not limited to, any added costs
being absorbed by any existing energy efficiency program funding sources or
mechanisms.
SECTION 71. The department
of clean energy shall, in consultation with the department of conservation and
recreation, a representative from the Bureau of Forestry, and the department of
environmental protection, commence a public rulemaking process no later than
July 1, 2008, to examine the use of non-sustainably harvested virgin wood as a
biomass fuel for inclusion in Class I and II of the Massachusetts renewable
portfolio standard pursuant to section 11F of chapter 25A of the General laws.
Said process shall be complete on or before July 1, 2009.
SECTION 72. The department
of public utilities shall establish a pilot program, hereinafter referred to as
the HEAT Loan Program, to assist consumers with the purchase of energy
efficient items for residential home modifications. For the purposes of this
program, energy efficient items shall include home insulation, new window
installation, advanced programmable thermostats, fuel efficient furnaces,
boilers, oil, gas, propane, or electric heating systems, solar domestic or fuel
efficient hot water systems, materials for insulation or sealing of a duct,
attic, basement, rim joint or wall and pipe insulation for heating systems or
other retail items for use in a residential dwelling that increase the energy efficiency
of said dwelling.
In establishing the
program, the department shall develop a list of qualified state or federally
chartered banking institutions or credit unions that do business in the
commonwealth and that are governed by chapter 167 or 171 of the General Laws as
participatory lending institutions. For the purposes of this section, a
qualified lending institution shall include a lending institution, as described
herein that is certified by the executive office and which shall offer zero and
low interest loans for the purpose of enhancing the energy efficiency of a
residential dwelling. The program shall be funded from that portion of the
mandatory charge that is authorized by this section and allocated to
residential customers consistent with section 19 of chapter 25 of the General
Laws; provided, however, that not less than $5,000,000 shall be made available
to assist participating financial institutions in offering said loan products
by or through interest rate write downs or other credit enhancement features;
and provided, further, that loans offered pursuant to the program shall be
offered to residential homeowners in the commonwealth solely for the purposes
stated herein. The department shall make such loans available for purchases
made on or after January 1, 2008, but not later than December 31, 2008. The
department shall establish the rules and guidelines to carry out the purposes
of this section, including, but not limited to, establishing applicant
criteria, application forms and procedures, and energy efficiency product
requirements and lending institution tracking and reporting requirements. The
department shall submit a report detailing the rules and guidelines to the
joint committee on telecommunications, utilities and energy no later than
January 1, 2009. The department shall submit a report detailing the program
results no later than February 1, 2009 to the joint committee on
telecommunications, utilities and energy and the house and senate committees on
ways and means.
SECTION 73. It is
established that the commonwealth’s clean energy goals are as follows:-
(i) meet at least
25 per cent of the commonwealth’s electric load, including both capacity and
energy, by the year 2020 with clean, demand side resources including: energy
efficiency, load management, demand response, and generation that is located
behind a customer’s meter and is a combined heat and power system with an
annual efficiency of 60 per cent or greater with the goal of 80 per cent annual
efficiency for combined heat and power systems by 2020;
(ii) meet at least
20 per cent of the commonwealth’s electric load by the year 2020 through new,
renewable generation;
(iii) reduce the use
of fossil fuel in buildings by 10 per cent from 2007 levels by the year 2020
through the increased efficiency of both equipment and the building envelope;
(iv) reduce
greenhouse gas emissions by 20 per cent from 1990 levels by the year 2020; and
(v) develop a plan
to reduce total energy consumption in the commonwealth by at least 10 per cent by
2017 through the development and implementation of the green communities
program that utilizes renewable energy, demand reduction, conservation and
energy efficiency. The secretary shall annually, no later than September 1st,
establish an annual reduction target for the commonwealth for the following
calendar year.
(b) The secretary of
energy and environmental affairs shall prepare and submit to the energy
advisory board for review and approval a 5-year plan for meeting the clean
energy goals of the commonwealth. The plan shall include strategies to meet
each of the clean energy goals and shall also address the following topics:
(1) reduction of
energy use in state buildings;
(2) reduction of
energy use in municipal buildings;
(3) equitable
distribution of program benefits to all customers and particularly low income
customers to address the affordability and adverse impacts on low-income
households of energy costs and demand mitigation strategies, and mitigation of
such adverse impacts, such as by compensating adjustments to the low-income
rate discount;
(4) the use of
investment tax credits and tax policy generally to encourage investment in
energy efficiency and renewable technologies;
(5) increased
generation and use of renewable energy;
(6) siting reform;
(7) the coordination
and integration of programs within the commonwealth and with regional efforts
carried out by other New England states;
(8) progress towards
improving the efficiency of buildings and mechanical systems on an all-fuels
basis including, electric, gas and oil; and
(9) the use of
low-carbon biofuels evaluated on a lifecycle basis.
(c) The secretary shall
appoint an advisory board to assist in the development and review of the plan.
The board shall review the plan and solicit stakeholder input and review. The
board shall submit its findings and recommendations to the secretary who shall
address the board’s findings and recommendations and submit the plan to the
speaker of the house of representatives, the president of the senate, the joint
committee on telecommunications, utilities and energy, and the members of the
board.
(d) The 5-year plan shall
designate the agency responsible for implementation of each strategy and shall
include timelines, performance standards, specific regulatory or legislative
changes, evaluation procedures and additional budget requirements. The
secretary shall conduct an annual performance evaluation of each program and
regulatory initiative and, no later than 3 months after the end of each fiscal
year, shall submit the results of those evaluations to the clerk of the house
of representatives, who shall forward the same to the joint committee on
telecommunications, utilities and energy, and the members of the energy
advisory board.
SECTION 74. On or before
January 1, 2011, the department of public utilities, in consultation with the
department of clean energy, shall file a report on the effectiveness of the
programs administered pursuant to this section. Said report shall include a
financial account of all funds incurred by and administered under this section,
and any recommendations deemed appropriate by the department, including but not
limited to the reduction or elimination of any mandatory charges authorized
under this section as they may relate to programs and plans pursuant to
sections 21 and 22 of chapter 25 of the general laws; provided, however, that
any recommendation for reduction or elimination should include a mechanism to
ensure continued adequate funding for comprehensive low income demand-side
management and education programs. Said report shall be filed with the house
and senate clerks who shall forward the same to the house and senate committees
on ways and means and the joint committee on telecommunications, utilities and
energy.
SECTION 75. The department
of public utilities shall hold a public hearing and issue a report, no later
than July 1, 2008, relative to whether it is cost effective to require electric
companies and municipal lighting plants to replace meters for measuring electricity
to consumers. The report shall include an evaluation of the frequency of
replacements, the standards and practices employed by distribution companies to
determine when replacement is necessary and rate impacts and cost benefit
analysis of installing advanced metering technology. The department shall
report to the committees on ways and means and the joint committee on
telecommunications, utilities and energy its recommendations and proposed
legislation, if any.
SECTION 76. Section 34
shall take effect on March 31, 2009.
