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The Commonwealth of Massachusetts
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HOUSE OF REPRESENTATIVES, November 8, 2007.
The committee on Telecommunications, Utilities and Energy, to whom was referred the petition of Salvatore F. DiMasi, Brian S. Dempsey and Daniel E. Bosley for legislation to establish the green communities act of 2007 through the development of a comprehensive energy policy for the Commonwealth (House, No. 3965), reports recommending that the accompanying bill (House, No. 4365), ought to pass.
For the committee,
BRIAN S. DEMPSEY.
The Commonwealth of Massachusetts
—————————————— In the Year Two Thousand and Seven. ——————————————
An Act relative to green communities. “Whereas, The deferred operation of this act would tend to defeat its purpose, which is to provide forthwith for clean and renewable energy in the commonwealth, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.” 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, geothermal or other renewable energy system to provide lighting, heat, water heating, air conditioning 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, as appearing in the 2006 Official Edition, is hereby amended by striking out section 11E 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, appear and participate in administrative or judicial proceedings held in the commonwealth on behalf of any group of consumers in connection with any matter involving the rates, charges, prices, tariffs of an electric company, gas company, generator, transmission company, telephone company or telegraph company doing business in the commonwealth and subject to the jurisdiction of the department of public utilities or the department of telecommunications and cable.
(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 in this section referred to as the fund. The secretary of energy and environmental affairs 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 (c) 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 secretary, in consultation with the advisory board established pursuant to subsection (g), may draw upon monies in the fund for the public purpose of generating the maximum economic and environmental benefits over time to the ratepayers of the commonwealth from renewable energy through a series of initiatives which exploit the advantages of renewable energy in a more competitive energy marketplace by promoting the increased availability, use, and affordability of renewable energy, by making operational improvements to existing renewable energy projects and facilities which, in the determination of the secretary, have achieved results which would indicate that future investment in said facilities would yield results in the development of renewable energy more significant if said funds were made available for the creation of new renewable energy facilities, and by fostering the formation, growth, expansion, and retention within the commonwealth of preeminent clusters of renewable energy and related enterprises, institutions, and projects, which serve the citizens of the commonwealth.
(c) The public purposes to be advanced through the secretary’s actions shall include, but not be limited to, the following: (i) developing, permitting, and constructing renewable energy projects, or procuring the development, permitting or construction of renewable energy projects, thereby increasing the use and affordability of renewable energy resources in the commonwealth; (ii) protecting the environment and the health of the citizens of the commonwealth through the prevention, mitigation, and alleviation of the adverse pollution effects associated with certain electricity generation facilities; (iii) ensuring delivery to all consumers of the commonwealth of as many benefits as possible created as a result of increased fuel and supply diversity; (iv) creating additional employment opportunities in the commonwealth through the development of renewable energy technologies; (v) stimulating increased public and private sector investment in, and competitive advantage for, renewable energy and related enterprises, institutions, and projects in the commonwealth; (vi) stimulating entrepreneurial activities in these and related enterprises, institutions, and projects; (vii) providing non-financial assistance for the development, permitting, and construction of renewable energy projects; (viii) entering into bulk purchasing agreements for energy, renewable energy credits, or renewable energy equipment; (ix) providing economic assistance for the growth and development of a renewable energy sector; and (x) undertaking any other action consistent with provisions of this chapter.
(d) In furtherance of these and other public purposes and interests, the secretary may, in consultation with the advisory board established pursuant to subsection (g), expend monies from the fund to make grants, contracts, loans, equity investments, energy production credits, bill credits, or rebates to customers, to provide financial or debt service obligation assistance, or to take any other actions, in such forms, under such terms and conditions and pursuant to such selection procedures as the secretary deems appropriate and otherwise in a manner consistent with good business practices; provided, however, that the secretary shall generally employ a preference for competitive procurements; provided, further, that the secretary shall endeavor to leverage the full range of the resources, expertise, and participation of other state and federal agencies and instrumentalities in the design and implementation of programs under this section; and provided, further, that the secretary has determined that such actions are calculated to advance the public purpose and public interests set forth in this section, including, but not limited to, the following: (i) the growth of the renewable energy-provider industry; (ii) the use of renewable energy by electricity customers in the commonwealth; (iii) public education and training regarding renewable energy; (iv) product and market development; (v) pilot and demonstration projects and other activities designed to increase the use and affordability of renewable energy resources by and for consumers in the commonwealth; (vi) the provision of financing in support of the development and application of related technologies at all levels, including, but not limited to, basic and applied research and commercialization activities; (vii) the design and making of improvements to existing renewable energy projects and facilities as defined herein which were in operation as of December 31, 1997; and (viii) matters related to the conservation of scarce energy resources.
The secretary shall, in consultation with the advisory board established pursuant to subsection (g), adopt a detailed plan for the application of the fund in support of the design, implementation, evaluation, and assessment of a renewable energy program for the commonwealth, subject to periodic revision by the secretary, that ensures that the fund shall be employed to provide financial and non-financial resources to overcome barriers facing renewable energy enterprises, institutions, and projects in a prudent manner consistent with the public purposes and interests set forth in this section. Said plan, to the extent practicable, shall consist of at least four components: (i) “product and market development” to establish a foundation for growth and expansion of the commonwealth's renewable energy enterprises, institutions, and projects, including pilot and demonstration projects, production incentives, and other activities designed to increase the use and affordability of renewable energy in the commonwealth; (ii) “training and public information” to allow for the development and dissemination of complete, objective, and timely information, analysis, and policy recommendations related to the advancement of the public purposes and interests of the renewable energy fund; (iii) “investment” to support the growth and expansion of renewable energy enterprises, institutions, and projects; and (iv) “research and development” within the commonwealth related to renewable energy matters. Said plan shall specify the expenditure of such monies from the fund to each of these component activities; provided, however, that monies so expended shall be used to develop such renewable energy projects within the commonwealth. In developing said plan, the secretary is hereby authorized and directed to consult with and utilize the services of the executive office for such technical assistance as the secretary deems necessary or appropriate to the effective discharge of his responsibilities and duties relative to the fund.
(e) Subject to the approval of the secretary, investment activity of monies from the fund may consist of the following: (i) an equity fund, to provide risk capital to renewable energy enterprises, institutions, and projects; (ii) a debt fund, to provide loans to renewable energy enterprises, institutions, projects, intermediaries, and end-users; and (iii) a market growth assistance fund, to be used to attract private capital to the equity and debt funds. To implement these investment activities, the secretary is hereby authorized to retain, through a competitive bid process, a public or private sector investment fund manager or managers, who shall have prior knowledge and experience in fund management and possess related skills in renewable energy and related technologies development, to direct the investment activity described herein and to seek other fund co-sponsors to contribute public and private capital from the commonwealth and other states; provided, however, that such capital is appropriately segregated. Said manager or managers, subject to the approval of the secretary, shall be authorized to retain necessary services and consultants to carry out the purposes of the fund. Said manager or managers shall develop a business plan to guide investment decisions, which shall be approved by the secretary prior to any expenditures from the fund and which shall be consistent with the provisions of the plan for the fund as adopted by the secretary.
(f) For the purposes of expenditures from the fund, renewable energy technologies eligible for assistance shall include the following: solar photovoltaic and solar thermal electric energy; wind energy; ocean thermal, wave, or tidal energy; geothermal; fuel cells; landfill gas; 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. Such funds may also be used for investment by distribution companies to overcome barriers to renewable energy development, if consistent with the provisions of this section. The following technologies or fuels shall not be considered renewable energy supplies: coal, oil, natural gas, and nuclear power.
(g) The secretary is hereby authorized to transfer amounts from the fund to, and enter into funding or subsidy agreements with, the Massachusetts Development Finance Agency established pursuant to section 2 of chapter 23G, hereinafter referred to as the agency; provided, however, that the secretary shall not transfer more than 50 per cent of the revenue deposited into the fund pursuant to section 20 of chapter 25 to the agency in any one fiscal year.
Notwithstanding chapter 23G or any other general or special law to the contrary, amounts transferred to the agency shall be applied to make loans to users as defined in said chapter 23G for the purpose of financing or refinancing costs of renewable energy projects approved by the secretary, or to insure or provide loan guarantees for loans, or to provide reserves for or otherwise secure bonds of the agency issued for such purpose, or to provide for or otherwise subsidize debt service costs on such loans or other forms of financial assistance or such bonds, as agreed in an operating or other agreement between the agency and the secretary. Any such amounts transferred to the agency shall be held and applied by the agency separate and apart from all other monies of the agency.
(h) In addition to the powers granted pursuant to chapters 23G and 40D of the General Laws, the agency is hereby authorized to borrow money and issue and secure its bonds for the purpose of financing renewable energy generating facilities, renewable energy research and development facilities and renewable energy manufacturing facilities, as provided in, and subject to, the provisions of this section; provided further that the provisions of said chapters 23G and 40D shall apply to bonds issued under this section, except that the provisions of subsection (b) of section 8 of said chapter 23G and section 12 of said chapter 40D shall not apply to bonds issued pursuant to this section or to the renewable energy generating facilities, renewable energy research and development facilities or renewable energy manufacturing facilities financed thereby; and provided further, that renewable energy generating facilities, renewable energy research and development facilities and renewable energy manufacturing facilities financed by the agency pursuant to this section shall constitute a project within the meaning of section 1 of said chapter 23G and section 1 of said chapter 40D, but shall not be considered facilities to be used in a commercial enterprise.
(i) Prior to financing any renewable energy generating facilities, renewable energy research and development facilities and renewable energy manufacturing facilities in accordance with this section, the agency shall find and determine that: (i) the renewable energy generating facility, renewable energy research and development facility or renewable energy manufacturing facility has been approved by the secretary upon a finding by the secretary that the financing of said facility is expected to promote the use of renewable energy resources in the commonwealth and help to achieve the public purposes of this chapter; (ii) the recipient is a responsible party; (iii) the agency’s bonds, if any, and the financing documents therefore contain reasonable provisions and comply with the applicable provisions of this chapter and chapters 23G and 40D; and (iv) payments to be made under the applicable financing documents, including any moneys made available from the fund, are adequate to pay the current expenses of the agency in connection with the renewable energy project and to make payments on the bonds, if any, issued by the agency therefore.
(j) In addition to the provisions of said chapters 23G and 40D pertaining to the security of bonds issued by the agency, bonds issued by the agency pursuant to this section may be secured by funds received, or to be received, by the agency as provided in this section. Bonds issued pursuant to this section may be issued under, and secured by, a trust agreement or other financing document with such terms and conditions as the agency may determine in accordance with this section and the applicable provisions of said chapters 23G and 40D.
(k) Bonds issued by the agency pursuant to this section shall not be deemed to be a debt or a pledge of the faith and credit of the commonwealth or any political subdivision thereof and shall be payable solely from revenue received from the fund and from any other monies and rights pledged for their payment. All bonds issued by the agency pursuant to this section shall recite that neither the commonwealth nor any political subdivision thereof shall be obligated to pay the same and neither the full faith and credit nor the taxing power of the commonwealth or any political subdivision thereof is pledged to such payment.
(l) Nothing in this section shall be construed to limit or otherwise diminish the power of the agency to finance the costs of projects authorized pursuant to said chapters 23G and 40D within a certified economic development project upon compliance with the provisions of said chapters 23G and 40D.
(m) The use by the secretary of monies to implement the provisions of this section shall be deemed to be an essential governmental function.
(n) The governor shall appoint an advisory committee to assist the secretary in matters related to the fund and in the implementation of the provisions of this section. Said advisory committee shall include not more than 15 individuals with an interest in matters related to the general purpose and activities of the fund and the knowledge and experience in at least one of the following areas: electricity distribution, generation, supply, or power marketing; the concerns of commercial and industrial ratepayers; residential ratepayers, including low-income ratepayers; economics, financial or investment consulting expertise relative to the fund; regional environmental concerns; academic issues related to power generation, distribution or the development or commercialization of renewable energy sources; institutions of higher education; municipal or regional aggregation matters; and renewable energy issues. The secretary shall consult with said advisory committee in discharging his obligations under this section.
(o) The books and records of the executive office relative to expenditures and investments of monies from the fund shall be subject to a biennial audit by the auditor of the commonwealth.
(p) Notwithstanding any general or special law to the contrary, including without limitation any laws related to the procurement of electricity, and subject to this paragraph, the secretary shall, upon the written request of the governor, transfer monies in the fund, in an amount not exceeding $17 million in the aggregate, to the commonwealth for deposit in the General Fund. As a condition precedent to any such transfer, the commonwealth, acting by and through the executive office for administration and finance, shall enter into an agreement with the executive office under which the commonwealth, at the direction of the executive office, shall enter into 1 or more contracts with owners of facilities that generate electricity using renewable energy technologies, or with wholesale power marketers or other market intermediaries selling such electricity, for the purchase by the commonwealth, for its own use or for the use of any municipal electric department, public instrumentality or other governmental or nongovernmental entity in the commonwealth, of electricity produced by renewable energy technologies. The secretary shall determine the particular type or types of technologies which shall be the subject of any such contract based on such criteria as it shall deem advisable, including without limitation retail consumer choices of such renewable energy technologies. The aggregate dollar amount of the green power premium associated with electricity purchases to be made by the commonwealth for its own use under such contracts shall have a present value, determined according to such discount rate as shall be mutually agreeable to the corporation and the commonwealth, of such amount as shall be transferred pursuant to the first sentence of this paragraph. The green power premium shall be determined by subtracting from the total amount of the purchase price the undifferentiated commodity price for electricity under then-current commonwealth contracts. No payments shall be required from the commonwealth pursuant to any such contract prior to the fiscal year ending June 30, 2005, and the maximum payment in any 1 fiscal year under all such contracts shall not exceed $5 million. The commonwealth shall be indemnified under such contracts by said owners or power marketers on such terms as the corporation shall deem commercially reasonable. The amounts collected under section 20 of chapter 25 are impressed with a trust for the benefit of the fund and, to facilitate the purchase by the executive office of electricity produced by renewable energy technologies or the purchase of certificates produced pursuant to the renewable energy portfolio standard regulations of the department representing the generation attributes of electrical energy produced by renewable energy technologies, and in consideration of the sale of such electricity or certificates, the commonwealth covenants with the sellers of such electricity or certificates that the amounts collected under said section 20 of chapter 25 will not be diverted from the fund and that the rates of the mandatory charges pursuant to said section 20 of chapter 25 will not be reduced during the term, which shall not exceed 20 years, of any contract entered into by the executive office for the purchase of such electricity or certificates below a level which will enable the executive office to fulfill the terms of such contracts. In furtherance of the public purposes of the fund, income derived from the investment of amounts collected under section 20 of chapter 25 shall be expended by the executive office as provided in subsection (a) and, in the discretion of the executive office, in furtherance of the public purposes of the executive office and for such costs of departments and agencies of the commonwealth that support or are otherwise consistent with the purposes of the fund.
(q) The department shall, pursuant to chapter 30A, within 180 days of the effective date of this section promulgate rules and regulations and establish guidelines for the administration and enforcement of this section, including, but not limited to, establishing applicant criteria, application forms and procedures, and renewable energy product requirements.
(r) The secretary shall annually, no later than July 1, file a report with the house and senate committees on ways and means and the joint committee on telecommunications, utilities and energy. Said report shall include: (i) a list of fund recipients; (ii) the associated grant and loan amounts; (iii) the amounts of non-ratepayer funding leveraged, if any, as a result of the grants and loans, including in-kind and other non-cash contributions; (iv) the purposes of the grants and loans; (v) an annual statement of cash inflows and outflows detailing the sources and uses of funds; (vii) a detailed breakdown of all investments made by the fund pursuant to subsection (e); and (viii) a detailed breakdown of the purposes and amounts of administrative costs, including salaries, charged to the fund”,
SECTION 6. Chapter 25 of the General Laws is hereby amended by inserting after section 5D the following section:-
Section 5E. Upon written complaint by the attorney general of the commonwealth requesting any independent or department audit of the rate components of any company subject to the jurisdiction of said department, the department shall commence a proceeding within 30 days of receipt of said complaint to determine whether to order such requested audit. If cause for an audit is shown through this proceeding, the department shall order said audit in a reasonable amount of 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.
The department may, from time to time, 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 50 percent of the maximum.
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 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, nuclear power, 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 pos |
