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 renewable and alternative energy and energy efficiency 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. Section 9A of chapter 7 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by adding the following 4 paragraphs:-
When purchasing new motor vehicles, the commonwealth shall purchase hybrid or alternative fuel vehicles, as defined in section 1 of chapter 90, to the maximum extent feasible and consistent with the ability of such vehicles to perform their intended functions, at a rate of not less than 5 per cent annually for all new motor vehicle purchases so that, taking into account the existing number of such vehicles owned and operated by the commonwealth, not less than 50 per cent of the motor vehicles owned and operated by the commonwealth shall be hybrid or alternative fuel vehicles by the year 2018.
The division
of operational services shall forward to the department of energy resources all
requests for motor vehicle acquisitions by agencies of the
commonwealth. The department of energy resources shall thereafter
report to the division of operational services regarding the availability of a
hybrid or alternative fuel vehicle that shall achieve the intended use designated
by the requesting agency. The division of operational services, in
consultation with the departments of energy resources and environmental
protection, shall adopt a fuel efficiency standard for passenger vehicles owned
or operated by the commonwealth.
The division
of capital asset management and maintenance, in consultation with the department
of energy resources, shall develop a system of protocols for the acquisition of
alternative fuel vehicles and hybrids, including identifying the potential for
acquisition of heavy, medium and light-duty vehicles, based on the anticipated
mileage and usage of such vehicles, and the effectiveness of single-fuel or
dual-fuel alternative fuel vehicles for the particular purpose identified.
The division
of operational services, jointly with the department of energy resources, and
the executive office of energy and environmental affairs shall submit to the
secretary of administration and finance, the clerks of the senate and house of
representatives and the joint committee on state administration and regulatory
oversight an annual statement on or before July 1 each year detailing the
progress in meeting the requirements of this section. This report
shall include the percentage of fuel used for the alternative fuel vehicles
owned and operated by the commonwealth that qualifies as alternative fuel, as
defined in section 1 of chapter 90, and the amount and cost of non-alternative
fuel foregone as a consequence of the use of alternative fuel.
SECTION 2. Said chapter 7 is
hereby further amended by inserting after section 39C the following section:-
Section 39D. (a)
The commissioner shall require a state agency that initiates the construction
of a new facility owned or operated by the commonwealth or a renovation of an
existing facility owned or operated by the commonwealth when the renovation
costs exceed $25,000 and includes the replacement of systems, components or
other building elements which affect energy or water consumption to design and
construct or renovate the facility in a manner that minimizes the life-cycle
cost of the facility by utilizing energy efficiency, water conservation or
renewable energy technologies under the following criteria:
(1) the state agency shall utilize alternate technologies when
the life-cycle cost analysis conducted under subsection (b) shows that such
systems are economically feasible;
(2) each
new educational facility, including a municipal educational facility financed
through the school building assistance program, 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;
(3) the
division of capital asset management and maintenance or the state agency shall,
in the design, construction, equipping and operation of such facilities,
coordinate these efforts with the department of energy resources in order to
maximize reliance on, and the benefits of, renewable energy research and
investment activities; and
(4) all higher education construction projects shall, at a
minimum incorporate the MA-CHPS Green Schools Guidelines standards or an
equivalent standard.
(b) The
division of capital asset management and maintenance or the state agency
initiating the construction or renovation of a facility as described in
subsection (a) shall conduct a life-cycle cost analysis of any such facility’s
proposed design that evaluates the short-term and long-term costs and the
technical feasibility of using alternate technologies to provide lighting,
heat, water heating, air conditioning, refrigeration, gas or electricity. In
calculating life-cycle costs, a state agency shall include the value of
avoiding carbon emissions, creating renewable energy certificates and other
environmental and associated benefits created from the utilization of alternate
technologies, as applicable. This value shall be equal to the bid
price of the published market value of any such benefit and shall increase or
decrease at a projected rate determined by the department of energy
resources. To calculate life-cycle costs, a state agency shall use a
discount rate equal to the rate that the commonwealth’s tax-exempt long-term
bonds are yielding at the time of said calculation and shall assume that the
cost of fossil fuels and electricity will increase at the rate of 3 per cent
per year above the estimated rate of inflation or at a rate determined by the
department of energy resources.
(c) Notwithstanding
sections 11C and 11I of chapter 25A or any regulations issued thereunder, the
division of capital asset management and maintenance may procure energy
management services jointly with a state agency or a building authority that is
procuring energy or related services. Said sections 11C and 11I shall apply to
the extent feasible as determined by the commissioner of energy resources.
(d) For
purposes of this section, the term “economically feasible” shall mean that the
cost of installing and operating an alternate technology is lower than the cost
of installing and operating the energy, energy-using technology or water-using
technology that would otherwise be installed, as determined by a life-cycle
cost analysis.
(e) The
division of capital asset management and maintenance or the state agency
initiating the construction or renovation of a facility subject to the
requirements of subsection (a) shall file with the department of energy
resources a report detailing the agency’s compliance with this section with
respect to each such facility.
(f) The
department of energy resources shall issue an annual report to the general
court detailing the compliance record of all state agencies with the
construction and renovation provisions of this section.
Section 35II. There shall be established and
set up on the books of the commonwealth a separate fund to be known as the RGGI
Auction Trust Fund. The fund shall consist of amounts credited to
the fund in accordance with section 22 of chapter 21A and expended exclusively
for the purposes of said section 22 of said chapter 21A. The fund
shall be administered by the commissioner of energy resources, subject to the
approval of the secretary of energy and environmental affairs. The
fund shall be an expendable trust fund and shall not be subject to
appropriation or allotment. The commissioner shall report monthly by
source all amounts credited to the fund and all expenditures by subsidiary made
from the fund on the
SECTION 4. 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, may intervene, appear and participate in administrative,
regulatory, or judicial proceedings on behalf of any group of consumers in
connection with any matter involving rates, charges, prices and tariffs of an
electric company, gas company, generator, transmission company, telephone
company and 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. In
addition, the attorney general may intervene, appear and participate in federal
energy regulatory commission or other federal energy proceedings on behalf of
ratepayers in the commonwealth.
The office of
the ratepayer advocacy shall be under the direction of an assistant attorney
general appointed under section 2. The
assistant attorney general shall devote his full time and attention to the
duties of the office.
For the
purpose of such an intervention, appearance or participation, the attorney
general may expend such funds as may be appropriated. These expenditures shall
not exceed annually the amount assessed against such electric, gas, telephone
and telegraph company under section 3 of chapter 24A, notwithstanding
subsection (b). The attorney general
shall not expend any of such funds if the expenditure shall conflict with his
duties under section 3.
(b) In
the performance of his duties under this section, the attorney general may
retain an expert or a consultant to assist in proceedings before the department
of public utilities or the department of telecommunications and cable. If the
attorney general determines that the services of an expert or a consultant are
necessary in a proceeding, he shall file notice in the proceeding that includes
the type of expert or consultant sought and the anticipated cost. Upon
the filing of such notice, the department before which the proceeding is
commencing shall allow full parties to the proceeding the opportunity to
comment regarding the necessity or desirability of such services. Absent
a showing that the costs proposed are unnecessary for the attorney general to
represent ratepayer interests in the proceeding or that such costs are not
reasonable or proper, the use of the expert or consultant shall be
approved. Costs for an expert or a consultant shall not exceed $150,000
per proceeding unless approved by the department based upon exigent
circumstances, including the complexity of the proceeding. All
reasonable and proper expenses, as defined in this section, shall be borne by
the affected party in the proceeding and shall be paid by such party at such
times and in such manner as the attorney general directs. All reasonable and
proper costs and expenses, as defined in this section, shall be recognized by
the departments for all purposes as proper business expenses of the affected
party, recoverable through rates without further approval from the departments.
(c) The
attorney general may request, orally or in writing, that any company subject to
the jurisdiction of the department of public utilities or the department of
telecommunications and cable respond to not more than 15 information requests,
including subparts, per calendar month regarding any matter related to the
rates, charges, tariffs, books or service quality of the company, and the
company shall answer these information requests fully and completely in a
reasonably prompt manner, not to exceed 30 calendar days from the date of
issuance, regarding any issue that is within the jurisdiction of the
department. Department rules pertaining to the scope of questions and
objections to discovery shall apply to any such request and the department
shall have jurisdiction to rule on any objections or motions to compel.
If the company fails to answer the information requests in a reasonably prompt
manner, the attorney general may request enforcement of this subsection from
the department having jurisdiction over the company.
SECTION 5. Chapter 13 of the
General Laws is hereby amended by inserting after section 97 the following
section:-
Section 97A. The board of registration of
home inspectors, in consultation with the state board of building regulations
and standards, the executive office of energy and environmental affairs and the
energy efficiency advisory council, shall develop requirements and adopt
regulations to require documents to be provided to a buyer of a single-family
residential dwelling or a multiple-family residential dwelling with less than 5
dwelling units, or a condominium unit at the time of closing, outlining the
procedures and benefits of a home energy audit; provided however, that no
additional fees shall be imposed or collected in connection with the provision
of such documents.
SECTION 6. Section 7 of
chapter 21A of the General Laws, as so appearing, is hereby amended by striking
out, in the first sentence, the word “division” and inserting in place thereof
the following word:- department.
SECTION 7. 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
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 under section 1B of chapter 164. Any such competitive bid received shall
include payment options with rates that remain uniform for a minimum period of
1 year. In lieu of designing and implementing a competitive bidding process as
required by this section, the secretary may become a member of programs
organized and administered by the Health and Educational Facilities Authority
or its subsidiary organization for the purpose of such competitive group
purchasing of electricity.
Section 22. (a) As used in this section, the
following words shall have the following meanings, unless the context clearly
requires otherwise:
“Allowance”, an authorization to emit a fixed amount of carbon
dioxide.
“Cap and trade
program”, a policy approach for controlling emissions from a group of emitting
sources, such as electric generating stations, at a total cost that is expected
to be lower than if sources were regulated individually by setting an overall
cap or maximum amount of emissions from all regulated sources per compliance
period that will achieve the desired environmental effects; provided, however,
that a certain number of authorizations to emit in the form of emissions
allowances shall be created, issued and made available to persons, companies,
organizations or other entities through a sale by auction or direct allocation;
and provided further that the total number of allowances made available in a
compliance period shall not exceed the cap.
“Department”, department of environmental protection.
“RGGI” or
“Regional Greenhouse Gas Initiative”, the Memorandum of Understanding dated
(b) The
department, in consultation with the department of energy resources, shall
adopt rules and regulations establishing a carbon dioxide cap and trade program
to limit and reduce the total carbon dioxide emissions released by electric
generating stations that generate electric power. The rules and
regulations shall comply with RGGI and permit the holders of carbon dioxide
allowances to trade them in a regional market to be established through the
RGGI.
(c)(1) The
department shall provide, by regulation that all allowances issued under the
program shall be offered for sale by auction. The proceeds recovered from
the allowance auctions shall be deposited in the RGGI Auction Trust Fund
established in section 35II of chapter 10. The proceeds shall be used
without further appropriation for the following purposes only and shall be in a
proportion to be determined by the department of energy resources with the
approval of the secretary:
(i) to
reimburse a municipality in which the property tax receipts, including, for the
purposes of this clause, payments in lieu of taxes, are reduced as a result of
the mandates of RGGI or the regulation of carbon dioxide emissions from
electric generating stations; provided, however, that the amount of the payment
shall be the difference between the amount of the tax receipts in the current
tax year and the amount of the tax receipts in the year before implementation
of RGGI; provided further, that no reimbursement shall be made if, in a tax
year, the aggregate amount paid to a municipality by the owner of an electric
generating station including, but not limited to, payments in lieu of taxes and
property taxes, exceeds the aggregate amount paid to that municipality by that
owner in the year before implementation of RGGI; and provided further, that
payments from the fund shall be prioritized so that the first payments from the
fund shall be made to municipalities under this clause;
(ii) to fund the green communities program established in section 10 of chapter 25A;
(iii) to provide zero interest loans to municipalities, which are not green communities
under section 10 of chapter 25A for energy efficiency projects;
(iv) to promote energy efficiency, conservation and demand response; and
(v) to reimburse the commonwealth for costs associated with the
administration of the cap and trade program.
(2) Notwithstanding this section, the department
may set aside up to 1 per cent of the commonwealth’s annual allocation of
allowances to support the voluntary green power market which enables
electricity consumers to support the development of renewable resources.
(d) The
department of energy resources shall adopt regulations governing the auction of
allowances. The department of energy resources may hire an independent
contractor determined by the office to be qualified to conduct the auction in a
manner that ensures the efficiency of the auction, or may provide for
participation in a regional auction.
(e) The
responsibilities created by establishing a carbon dioxide cap and trade program
shall be in addition to any other responsibilities imposed by any other general
or special law or rule or regulation and shall not diminish or reduce any power
or authority of the department, including the authority to adopt standards and
regulations necessary for the commonwealth to join and fully participate in a
multistate program at any stage in the development and implementation of such a
program intended to control emissions of carbon dioxide or other substances
that are determined by the department to be damaging or altering the climate.
(f) Notwithstanding
any general or special law or rule or regulation to the contrary, the state
comptroller shall grant a permanent waiver or exemption from any applicable
charges or assessments made against the proceeds from the auction of allowances
under this section by the office of the comptroller under its authority under sections
5D of chapter 29.
(g) Notwithstanding
any general or special law or regulation to the contrary, any information
required by the department of energy resources or the department of any party
participating in the cap and trade program, with the exception of any emission,
offset and allowance tracking information required for compliance with the cap
and trade program, shall be maintained for the sole and confidential use of the
commonwealth, the department, the department of energy resources and their
agents. This information shall not be deemed to be a public record
as defined in clause Twenty-sixth of section 7 of chapter 4 and shall not be
subject to demand for production under section 10 of chapter 66. Aggregates
of such information may be prepared and such aggregates shall be public
records. All information collected under this section may be shared
with other states which afford such information similar protection from public
disclosure.
SECTION 8. Clause (ii) of
subsection (a) of section 3D of chapter 23A of the General Laws, as appearing
in the 2006 Official Edition, is hereby amended by striking out, in line 50,
the word “space.” and inserting in place thereof the following:- space;
(K) the area has been designated by the municipality as an area
with potential for the development of a Class I renewable energy generating
sources, as defined by section 11F of chapter 25A.
SECTION 9. Chapter 25 of the
General Laws is hereby amended by inserting after section 5D the following
section:-
Section 5E. The department may, from time to
time, audit all companies subject to its jurisdiction, except steam
distribution companies. Such audits may include, but shall not be
limited to, review of the following documents: (a) 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, and the
information in the annual return to the department; (b) all documents
concerning reconciling mechanisms related to rates, prices, charges, or costs
and savings related to a merger, acquisition or consolidation within 3 years
after the merger, acquisition or consolidation; and (c) documents concerning
service quality measure statistics and service quality performance at least
every 3 years or whenever service quality penalties equal to or exceed 50 per cent
of the maximum.
Upon written
complaint of the attorney general requesting an independent audit of a company
subject to the department’s jurisdiction, the department shall commence a
proceeding within 30 days of receipt of the 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 and each audit
shall be paid for by the company that is the subject of the audit.
SECTION 10. Said chapter 25 is
hereby further amended by inserting after section 18 the following
section:-
Section 18A. The commission may make an
assessment against each steam distribution company under the jurisdictional
control of the department. Each steam distribution company shall annually
report by March 31 its intrastate operating revenues for the previous calendar
year to the department. The assessments shall be apportioned
according to each steam distribution company’s intrastate operating revenues,
to produce an annual amount not greater than $600,000, 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 under 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 receipt 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 11. 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 4
sections:-
Section 19. (a) The department shall require
a mandatory charge of 2.5 mills per kilowatt-hour for all consumers, 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 under
subsection (b) of section 134 of chapter 164. In addition to the
aforementioned mandatory charge, such programs shall also be funded, without
further appropriation, by: (1) amounts generated by the distribution companies
and municipal aggregators under the Forward Capacity Market program
administered by
(b) The
department may 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 combined heat and power and geothermal heating and
cooling projects. Funding may be supplemented by funds authorized by
section 21. 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, minimizing administrative costs to the
fullest extent practicable 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 subclass, 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. 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 program costs to ensure that a program is designed to obtain energy savings
and system benefits with value greater than the costs of the program.
Section 20. (a) The department shall require
a mandatory charge of 0.5 mill per kilowatt-hour for
all electricity consumers, except those 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 renewable energy projects. All
revenues generated by the mandatory charge shall be deposited into the
Massachusetts Renewable Energy Trust Fund, established under section 4E of
chapter 40J.
(b) Notwithstanding
any general or special law to the contrary: (1) a municipal lighting plant
which does not supply generation service outside its own service territory or
does not open its service territory to competition may elect to assess and
remit a mandatory charge per kilowatt-hour upon its electricity consumers on
the same terms and conditions as apply to the charge imposed on consumers
residing in competitive distribution service territories under this section;
provided, however, that such an election by a municipal lighting plant shall be
irrevocable and such a municipal lighting plant shall not be deemed to be
supplying generation service outside its service territory or opening its
service territory to competition at the retail level for the purposes of the
first sentence of subsection (a); and (2) in administering the Massachusetts
Renewable Energy Trust Fund, the Massachusetts Technology Park Corporation,
doing business as the Massachusetts Technology Collaborative, or the governing
board, as applicable, shall not make any grant or loan or provide any subsidy
from the trust fund to any municipal lighting plant or consumer residing in the
distribution service territory of such municipal lighting plant unless: (A) a
mandatory charge per kilowatt-hour is assessed against all consumers residing in
the distribution service territory and remitted to the collaborative under the
first sentence of subsection (a) or clause (1); or (B) the board of directors
of the collaborative, as a condition precedent to any such grant, loan or
subsidy, shall have determined and incorporated into the minutes of its
proceedings findings that: (i) any such grant, loan or subsidy is intended for
the principal purpose of generating public benefits for those consumers who
reside in distribution service territories in which the mandatory charge is so
imposed and remitted and will generate only incidental private benefits to the
recipient or others residing in a distribution service territory in which the
mandatory charge is not so imposed and remitted; and (ii) the facts and
circumstances associated with the recipient or the residence of the recipient
provide unique or extraordinary opportunities to advance the public purposes of
the trust fund over those opportunities available through grants or subsidies
made to recipients residing in distribution service territories in which such a
mandatory charge is assessed and remitted.
Section 21. (a) To mitigate capacity and
energy costs for all customers, the department shall ensure that, subject to
subsection (c) of section 19, electric and natural gas resource needs shall
first be met through all available energy efficiency and demand reduction
resources that are cost effective or 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) Every
3 years, on or before April 30, the electric distribution companies and
municipal aggregators with certified efficiency plans shall jointly prepare an
electric efficiency investment plan and the natural gas distribution companies
shall jointly prepare a natural gas efficiency investment plan. Each
plan shall provide for the acquisition of all available energy efficiency and
demand reduction resources that are cost effective or less expensive than
supply and shall be prepared in coordination with the energy efficiency
advisory council established by section 22. Each plan shall provide
for the acquisition, with the lowest reasonable customer contribution, of all
of the cost effective energy efficiency and demand reduction resources that are
available from municipalities and other governmental bodies.
(2) A
plan shall include: (i) an assessment of the estimated lifetime cost,
reliability and magnitude of all available energy efficiency and demand
reduction resources that are cost effective or less expensive than supply; (ii)
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; (iii) the estimated energy cost savings
that 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; (iv) a description of programs, which may include, but which shall
not be limited to: (A) efficiency and load management programs; (B) demand
response programs; (C) programs for research, development and commercialization
of products or processes which are more energy-efficient than those generally
available; (D) programs for development of markets for such products and
processes, including recommendations for new appliance and product efficiency
standards; (E) programs providing 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; (F) programs for the design,
manufacture, commercialization and purchase of energy-efficient appliances and
heating, air conditioning and lighting devices; (G) programs for planning and
evaluation; (H) programs providing commercial, industrial and institutional
customers with greater flexibility and control over demand side investments
funded by the programs at their facilities; and (I) programs for 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
(C) and (D) collectively, without authorization from the advisory council; (v)
a proposed mechanism which provides performance incentives to the companies
based on their success in meeting or exceeding the goals in the plan; (vi) the
budget that is needed to support the programs; (vii) a fully reconciling
funding mechanism which may include, but which shall not be limited to, the
charge authorized by section 19; (viii) 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; and (ix) data showing the percentage of all monies collected that
will be used for direct consumer benefit, such as incentives and technical
assistance to carry the plan. With the approval of the council, the
plan may also include a mechanism to prioritize projects that have substantial
benefits in reducing peak load, reducing the energy consumption or costs of
municipalities or other governmental bodies, or that have economic development,
job creation or job retention benefits.
(3) A
program 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 the program is designed to obtain energy savings and system
benefits with value greater than the costs of the program. Program cost
effectiveness shall be reviewed periodically by the department and by the energy
efficiency advisory council. If a program fails the
cost-effectiveness test as part of the review process, it shall either be
modified to meet the test or shall be terminated.
(c) Each
plan prepared under subsection (b) shall be submitted for approval and comment
by the energy efficiency advisory council every 3 years on or before April
30. The electric and natural gas distribution companies and
municipal aggregators 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 shall submit
its approval or comments to the electric and natural gas distribution companies
and municipal aggregators not later than 3 months after submission of the
plan. The electric and natural gas distribution companies and municipal
aggregators may make any changes or revisions to reflect the input of the
council.
(d)(1) The
electric and natural gas distribution companies and municipal aggregators shall
submit their respective plans, together with the council’s approval or comments
and a statement of any unresolved issues, to the department every 3 years on or
before October 31. The department shall consider the plans and shall
provide an opportunity for interested parties to be heard in a public hearing.
(2) Not
later than 90 days after submission of a plan, the department shall issue a
decision on the plan which ensures that the electric and natural gas
distribution companies have identified and shall capture all energy efficiency
and demand reduction resources that are cost effective or less expensive than
supply and shall approve, modify and approve, or reject and require the resubmission
of the plan accordingly. The department shall approve a fully
reconciling funding mechanism for the approved plan and, in the case of municipal
aggregators, a fully reconciling funding mechanism that requires coordination
between the distribution company and municipal
aggregator to ensure that program costs are collected, allocated and
distributed in a cost effective, fair and equitable manner. The
department shall determine the effectiveness of the plan on an annual basis.
(3) Each
electric and natural gas plan shall be in effect for 3 years.
(e) If
an electric or natural gas distribution company or municipal aggregator has not
reasonably complied with the plan, the department may open an
investigation. In any such investigation, the utility company or
aggregator shall have the burden of proof to show whether it had good cause for
failing to reasonably comply with the plan. If the utility company
or aggregator does not meet its burden, the department may levy a fine of not
more than the product of $0.05 per kilowatt-hour or $1 per therm times the
shortfall of kilowatt-hours saved or therms saved, as applicable, depending
upon the facts and circumstances and degree of fault, which shall be paid to
the Massachusetts Technology Park Corporation within 60 days after the end of
the year in which the department levies the fine. The fine shall not
impact ratepayers. The department of energy resources shall oversee the use of
the funds held by the Massachusetts Technology Park Corporation under this
subsection so as to maximize the amount of energy efficiency achieved.
Section 22. (a) The department shall appoint
and convene an energy efficiency advisory council which shall consist of 11
members, including 1 person representing each of the following:
(1) residential consumers, (2) the low-income weatherization and fuel
assistance program network, (3) the environmental community, (4) businesses, including
large C&I end-users, (5) the manufacturing industry, (6) energy efficiency
experts, (7) organized labor, (8) the department of environmental
protection, (9) the attorney general, (10) the executive office of housing and
economic development, and (11) the department of energy resources. 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 energy resources shall serve as chair of the council. A
member who is a representative of energy efficiency experts shall not have a
contractual relationship with an electric or natural gas distribution company
doing business in the commonwealth or any affiliate of such company, or any
municipal aggregator. There shall be 1 non-voting, ex-officio member
from each of the electric and natural gas distribution companies, 1 from each
of the approved municipal aggregators, 1 from the heating oil industry and 1
from energy efficiency businesses.
(b) The
council shall, as part of the approval process by the department, seek to
maximize net economic benefits through energy efficiency and load management
resources and to achieve 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 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 1 fuel resource or 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, however, that such consultants
shall not have any contractual relationship with an electric or natural gas
distribution company doing business in the commonwealth or any affiliate of
such company.
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. The 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 under section 19; provided,
however, that such allocation shall not exceed 1 per cent of such funding on an
annual basis. The consultants used under this section shall be
experts in energy efficiency and shall be independent.
(d) The
electric and natural gas distribution companies and municipal aggregators shall
provide quarterly reports to the council on the implementation of their
respective plans. The reports shall include a description of the
program administrator’s progress in implementing the plan, a summary of the
savings secured to date and such other information as the council shall determine. The
council shall provide an annual report to the department and the joint
committee on telecommunications, utilities and energy 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 12. Chapter 25A of
the General Laws, as so appearing, is hereby amended by striking out sections 1
to 3, inclusive, as amended by section 28 of chapter 19 of the acts of 2007,
and inserting in place thereof the following 3 sections:-
Section 1. There shall be within the
executive office of energy and environmental affairs a department called the
department of energy resources, under the supervision of a commissioner of
energy resources, hereinafter the commissioner. The duties given to the commissioner in this chapter and in any other
general or special law shall be exercised and discharged subject to the
direction, control and supervision of the secretary of energy and environmental
affairs. The commissioner shall be appointed by the secretary of energy and
environmental affairs, with the approval of the governor, and may, with like
approval, be removed. The commissioner shall be a person of skill and
experience in the field of energy regulation or policy and shall serve a term
coterminous with that of the governor. The position of commissioner shall be
classified in accordance with section 45 of chapter 30 and the salary shall be
determined in accordance with section 46C of said chapter 30. The commissioner
shall devote full time during business hours to the duties of the 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
secretary, the secretary 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. The commissioner shall be the
executive and administrative head of the department of energy resources and
shall be responsible for administering and enforcing the provisions of law
relative to the division and to each administrative unit thereof.
There shall be
within the department 3 divisions: (i) a division of energy efficiency, which
shall work with the department of public utilities regarding energy efficiency
programs; (ii) a division of renewable and alternative energy development,
which shall oversee and coordinate activities that seek to maximize the
installation of renewable and alternative energy generating sources that will
provide benefits to ratepayers, advance the production and use of biofuels and
other alternative fuels as the division may define by regulation, and
administer the renewable portfolio standard and the alternative portfolio standard;
and (iii) 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 energy resources. Each division shall be headed by a director
who shall be appointed by the commissioner and who shall be a person of skill
and experience in the field of energy efficiency, renewable energy or
alternative energy, and energy regulation or policy, respectively. The directors shall be the executive and
administrative heads of their respective divisions and shall be responsible for
administering and enforcing the law relative to such division and to each
administrative unit thereof under the supervision, direction and control of the
commissioner. The directors shall serve
at the pleasure of the commissioner, shall receive such salary as may be
determined by law and shall devote full time during business hours to the
duties of the 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 active
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
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 2 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.
Section 3. For the purposes of this chapter
the following words shall have the following meanings:-
“Alternative
energy development”, shall include but not be limited to solar energy, wood,
alcohol, hydroelectric, biomass energy systems, renewable non-depletable and recyclable
energy sources.
“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.
“Building authority”, the
“Commissioner”, the commissioner of energy resources.
“Department”, the department of energy resources.
“Eligible”,
able to meet all requirements for offerors or bidders set forth in section 11C
or 11I and section 44D of chapter 149 and not barred from bidding under section
44C of said chapter 149 or any other applicable law, and who shall certify that
he is able to furnish labor that can work in harmony with all other elements of
labor employed or to be employed on the work.
“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: (a) 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; (b) determines appropriate energy conservation
maintenance and operating procedures; and (c) 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 the
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 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 weatherstripping; 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; on-site electrical generation equipment using new renewable
generating sources as defined in section 11F; 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 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.
“Energy
savings”, a measured reduction in fuel, energy, operating or maintenance costs
resulting from the implementation of energy conservation measures or projects;
provided, however, 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 for gas and electric rates compiled by the Energy
Information Administration of the United States Department of Energy.
“Local
governmental body”, a city, town, district, regional school district or county,
or an agency or authority thereof, including a housing authority, board,
commission, department or instrumentality of a city, town district, regional
school district or county, and any other agency which is not a state agency or
building authority; or a combination of 2 or more such cities, towns,
districts, regional school districts or counties, or agencies or authorities
thereof.
“Marine or
hydrokinetic energy”, electrical energy from: (a) waves, tides and currents in
oceans, estuaries and tidal areas; (b) free-flowing water in rivers, lakes and
streams; (c) free-flowing water in man-made channels; or (d) differentials in
ocean temperature, called ocean thermal energy conversion.
“Minor
informalities”, minor deviations, insignificant mistakes and matters of form
rather than substance of the proposal or contract document which may be waived
or corrected without prejudice to other offerors, potential offerors or the
public agency.
“Non-renewable
energy supply and resource development”, shall include but not be limited to
gasoline, natural gas, coal, nuclear energy, offshore and onshore petroleum,
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.
“Person”, any natural person, business, partnership, corporation,
union, committee, club, or other organization, entity or group of individuals.
“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.
“Qualified provider”, responsible
and eligible person able to meet all requirements set forth in section 11C or
11I, and not barred 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.
“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.
“Responsible”,
demonstrably possessing the skill, ability and integrity necessary to
faithfully perform the work required by a particular contract, based upon a
determination of competent workmanship and financial soundness in accordance
with section 11C or 11I 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”, any agency, authority, board, bureau, commission,
committee, council, department, division, institution, officer or other agency
of the commonwealth, including quasi-public agencies.
“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.
SECTION 13. Section 5 of said
chapter 25A, as appearing in the 2006 Official Edition, is hereby amended by
striking out the first sentence and inserting in place thereof the following
sentence:- The commissioner shall file an annual report with the clerks of the
senate and the house of representatives, the joint committee on
telecommunications, utilities and energy and the senate and house committees on
ways and means: (a) listing the number of employees of the department of energy
resources, 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 14. 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 word:- department.
SECTION 15. Said section 6 of
said chapter 25A, as so appearing, is hereby further amended by striking out,
in line 38, the words “telecommunications and energy” and inserting in place
thereof the following words:- public utilities.
SECTION 16. Section 7 of said
chapter 25A, as so appearing, is hereby amended by striking out, in lines 1, in
lines 21 and 22, and in line 29, the words “division of energy resources” and
inserting in place thereof, in each instance, the following word:- department.
SECTION 17. Said section 7 of
said chapter 25A, as so appearing, is hereby further amended by striking out,
in lines 8, 22, 30, 32, 39, 49 and 50
the word “division” each time it appears, and inserting in place thereof the
following word:- department.
SECTION 18. Said section 7 of
said chapter 25A, as so appearing, is hereby further amended by striking out,
in line 40, the words “telecommunications and energy” and inserting in place
thereof the following words:- public utilities.
SECTION 19. 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 word:- department.
SECTION 20. Section 9 of said
chapter 25A, as so appearing, is hereby amended by striking out, in line 2, the
words “of energy resources”.
SECTION 21. Said section 9 of
said chapter 25A, as so appearing, is hereby amended by striking out, in lines
9 and 10, the words “division of energy resources” and inserting in place
thereof the following word:- department.
SECTION 22. Said chapter 25A
is hereby amended by striking out section 10, as so appearing, and inserting in
place thereof the following 2 sections:-
Section 10. (a) The division of green
communities shall assist the commonwealth’s municipalities and other local
governmental bodies to: reduce energy consumption and costs, reduce pollution,
facilitate the development of renewable and alternative energy resources, and
create local jobs related to the building of renewable and alternative energy
facilities and the installation of energy-efficient equipment. The
director of the division shall be responsible for the administration and
oversight of the green communities program and shall apply and disburse monies
and revenues as provided in this section.
(b) The
division shall establish a green communities program. The purpose of
the program shall be to provide technical and financial assistance, in the form
of grants and loans, to municipalities and other local governmental bodies that
qualify as green communities under this section. These loans and
grants shall be used to finance all or a portion of 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; and the adoption of
energy efficiency policies. They shall also be used to finance the
siting and construction of renewable and alternative energy projects on
municipally-owned land.
(c) To
qualify as a green community, a municipality or other local governmental body
shall: (1) file an application with the division in a form and manner to be
prescribed by the division; (2) provide for the as-of-right siting of renewable
or alternative energy generating facilities, renewable or alternative energy
research and development facilities, or renewable or alternative energy
manufacturing facilities in designated locations; (3) adopt an expedited
application and permitting process under which these energy facilities may be
sited within the municipality and which shall not exceed 1 year from the date
of initial application to the date of final approval; (4) establish an
energy use baseline inventory for municipal buildings, vehicles and street and
traffic lighting, and put in place a comprehensive program designed to reduce
this baseline by 20 per cent within 5 years of initial participation in the
program; (5) purchase only fuel-efficient vehicles for municipal use whenever
such vehicles are commercially available and practicable; and (6) require all
new residential construction over 3,000 square feet and all new commercial and
industrial real estate construction to minimize, to the extent feasible, the
life-cycle cost of the facility by utilizing energy efficiency, water
conservation and other renewable or alternative energy
technologies. The secretary may waive these
requirements based on a written finding that due to unusual circumstances, a
municipality cannot reasonably meet all of the requirements and the
municipality has committed to alternative measures that advance the
purposes of the green communities program as effectively as adherence to the
requirements.
(d) Funding
for the green communities program in any single fiscal year shall be available,
without the need for further appropriation, in a total amount of not more than
$10 million from: (1) monies generated by all cap and trade
pollution control programs, including, but not limited to, the cap and trade
program established under the NOx Allowance Trading Program and the carbon
dioxide allowance trading mechanism established under the Regional Greenhouse
Gas Initiative, as defined in subsection (a) of section 22 of chapter 164; (2)
such amounts as may be directed to municipalities or other governmental bodies
under section 19 of chapter 25; (3) amounts from alternative compliance
payments established and administered under 225 CMR 14.00 adopted under
section 11F; and (4) other funds as the governing board of the Massachusetts
Renewable Energy Trust Fund established under section 4E of chapter 40J, may
provide.
(e) The
division shall adopt rules, regulations and guidelines for the administration
and enforcement of this section, including, but not limited to, establishing
applicant criteria, funding priority, application forms and procedures, and
energy efficiency product requirements. The division shall also
adopt regulations providing for a separate green communities program for those
communities served by municipal lighting plants that have chosen to adopt the
renewable energy charge under section 20 of chapter 25.
(f) The
division shall annually, not later than April 1, submit a report to the clerks
of the senate and the house of representatives, the joint committee on
telecommunications, utilities and energy, the joint committee on state
administration and regulatory oversight, and the senate and house committees on
ways and means detailing the expenditures and results relative to the green
communities program.
Section 10A. The division shall design and
implement a competitive bidding procedure for the procurement of electric
generation from renewable and alternative generating facilities on behalf of
municipalities certified as green communities under section 10. Any
competitive bids received shall include payment options with rates that remain
uniform for a minimum of 5 years. In lieu of designing and implementing a
competitive bidding process as required by this section, the director may
become a member of programs organized and administered by the Health and
Educational Facilities Authority or its subsidiary organization for the purpose
of such competitive group purchasing of electricity.
SECTION 23. Said chapter 25A
is hereby further amended by striking out section 11C, as so appearing, and
inserting in place thereof the following section:-
Section 11C. (a)
A state agency or building authority may, in the manner provided by this
section, contract for the procurement of energy management services. Such
contracts may include terms of not more than 20 years. The state
agency or building authority shall solicit competitive sealed proposals through
a request for proposals. At least 1 week prior to soliciting
proposals for a contract under this section, the agency or authority shall
notify the commissioner in writing, in such form and including such information
as the commissioner shall prescribe by regulation, of the intent to solicit
proposals. Such notification shall, at a minimum, include a complete
copy of the request for proposals. An acknowledgment of receipt, in such form
and including such information as the commissioner shall prescribe by
regulation, shall be issued to the state agency or building authority 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, except a quasi-public agency,
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
the division has given prior written approval, and no contract for energy
management services shall be valid unless approved and signed by that
commissioner. A quasi-public agency may develop a request for
proposal and enter into a contract for energy management services
independently. The commissioner of capital asset management and
maintenance may delegate to state agencies and building authorities the
authority to enter into such contracts with an estimated construction cost of
less than $1 million. The delegation shall be in writing from the
commissioner to the using agency or building authority.
The request
for proposals published by a state agency or building authority shall include:
(1) the time and date for receipt of proposals and the address of the office to
which the proposals shall be delivered; (2) 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 (3) proposed
contract terms and conditions and an identification of such terms and
conditions which shall be deemed mandatory and non-negotiable. The
request for proposals may incorporate documents by reference, provided that the
request for proposals specifies where prospective offerors may obtain the
documents. The state agency or building authority 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.
Sections 44A,
44B and 44E through 44H, inclusive, of chapter 149 shall not apply to contracts
procured under this section. Section 44D of chapter 149 shall apply
as appropriate to proposals submitted for contracts under this section, and
every such proposal shall be accompanied by: (1) a copy of a certificate of
eligibility issued by the commissioner of the division of capital asset management
and maintenance; and (2) 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 that division. If the state agency or building authority
determines that any offeror is not responsible or eligible, the agency or
authority shall reject the offeror, and shall 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.
(b) A
local governmental body may, in the manner provided in this subsection,
contract for the procurement of energy management services. Unless no other manner of description
suffices, and the local 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
local governmental body's authority to reject, in whole or in part, any and all
proposals, as provided in this section, a local governmental body shall
unconditionally accept a proposal without alteration 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 local governmental body or fair competition. The
local governmental body shall waive minor informalities or allow the offeror to
correct them. If a mistake and the
intended meaning of the proposal are clearly evident on the face of the
proposal document, the local governmental body shall correct the mistake to
reflect the intended meaning 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 meaning is not similarly evident.
The local
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 local governmental body shall evaluate
responsiveness, responsibility, qualifications of the offeror, technical merit
and cost to the local governmental body. The request for proposals shall specify the method for comparing
proposals to determine the proposal offering the lowest overall cost to the
local governmental body, taking into consideration comprehensiveness of
services, energy or water cost savings, costs to be paid by the local
governmental body, and revenues to be paid to the local governmental body. If
the local 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 revisions, if needed, to each proposal which should
be obtained by negotiation before the contract shall be awarded to the offeror
of the proposal. The local 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.
(c) The state agency, building authority or local governmental body may cancel a request for proposals or may reject in whole or in part any and
all proposals when the state agency, building authority or local governmental
body determines that cancellation or rejection serves the best interests of the
state agency, building authority or local governmental body. The state agency,
building authority or local governmental body shall state in writing the reason
for a cancellation or rejection. The state agency, building
authority or local governmental body shall promptly publish in the central
register notice of the offeror awarded the contract. The state
agency, building authority or local governmental body shall, within 30 days,
file a copy of the contract with the commissioner.
The commissioner,
in consultation with the commissioner of capital asset management and
maintenance, shall adopt regulations for the procurement of energy management
services under this section for local government bodies. The commissioner of capital asset management
and maintenance shall adopt regulations for services to be procured for state
agencies and building authorities, and shall adopt regulations, in consultation
with the director of housing and community development, for the operations of
housing authorities. Such regulations may limit the scope of services procured
and the duration of contracts, and shall include any requirements that the
commissioner or the commissioner 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 commissioner or the
commissioner of capital asset management and maintenance may deem necessary to
monitor the costs and benefits of contracts for energy management services.
(d) The
commissioner shall enforce the requirements of this section and regulations
adopted hereunder as they relate to local governmental bodies and shall have
all the necessary powers to require compliance. The commissioner of
capital asset management and maintenance shall enforce all such regulations as
they relate to state agencies and building authorities, except quasi-public
agencies. An order of the commissioner 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 therefrom. The superior court for
SECTION 24. Section 11D of
said chapter 25A, as so appearing, is hereby amended by striking out, in lines
25, 39, 44 and 45, 52, 56, 60 and 62, the word “division” and inserting in
place thereof, in each instance, the following word:- department.
SECTION 25. Said section 11D
of said chapter 25A, as so appearing, is hereby further amended by striking
out, in lines 30, 39 and 47, the words “telecommunications and energy” and
inserting in place thereof the following words:- public utilities.
SECTION 26. Said section 11D
of said chapter 25A, as so appearing, is hereby further amended by inserting
after the word “department”, in lines 34 and 51, the following words:- of
public utilities.
SECTION 27. Said section 11D
of said chapter 25A, as so appearing, is hereby further amended by striking
out, in line 56, the words “government regulations”, and inserting in place
thereof the following words:- telecommunications, utilities and energy.
SECTION 28. 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 word:- department.
SECTION 29. Said section 11E
of said chapter 25A, as so appearing, is hereby further amended by striking
out, in lines 3 and 4, and in lines 7, 9, 13, 16, 20, 23 and 45, the word
“division” and inserting in place thereof, in each instance, the following
word:- department.
SECTION 30. Said section 11E
of said chapter 25A, as so appearing, is hereby further amended by striking
out, in lines 7, 10 and 43, the words “telecommunications and energy” and
inserting in place thereof, in each instance, the following words:- public
utilities.
SECTION 31. Said section 11E
of said chapter 25A, as so appearing, is hereby further amended by striking
out, in line 46, the words “committees on government regulations and energy,
respectively,” and inserting in place thereof the following words:- committee
on telecommunications, utilities and energy.
SECTION 32. Said chapter 25A
is hereby further amended by striking out section 11F, as so appearing, and
inserting in place thereof the following 2 sections:-
Section 11F. (a) The department shall
establish a renewable energy portfolio standard for all retail electricity
suppliers selling electricity to end-use customers in the commonwealth. By
(b) For
the purposes of this subsection, a renewable energy generating source is one
which generates electricity using any of the following: (1) solar photovoltaic
or solar thermal electric energy; (2) wind energy; (3) ocean thermal, wave or
tidal energy; (4) fuel cells utilizing renewable fuels; (5) landfill gas; (6)
waste-to-energy which is a component of conventional municipal solid waste
plant technology in commercial use; (7) naturally flowing water and hydroelectric;
(8) low emission advanced biomass power conversion technologies using fuels
such as wood, by-products or waste from agricultural crops, food or
animals, energy crops, biogas, liquid biofuel including but not limited to
biodiesel, organic refuse-derived fuel, or algae; or (9) geothermal energy;
provided, however, that the calculation of a percentage of kilowatt-hours sales
to end-use customers in the commonwealth from new renewable generating sources
shall exclude clauses (6) and (7). The department may also consider any
previously operational biomass facility retrofitted with advanced conversion
technologies as a renewable energy generating source. A renewable energy
generating source may be located behind the customer meter within the
(c) New
renewable energy generating sources meeting the requirements of this subsection
shall be known as Class I renewable energy generating sources. For the purposes
of this subsection, a Class I renewable energy generating source is one that
began commercial operation after December 31, 1997, or represents 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: (1) solar photovoltaic or solar thermal electric energy; (2)
wind energy; (3) ocean thermal, wave or tidal energy; (4) fuel cells utilizing
renewable fuels; (5) landfill gas; (6) energy generated by new hydroelectric
facilities, or incremental new energy from increased capacity or efficiency
improvements at existing hydroelectric facilities; provided, however, that (i)
each such new facility or increased capacity or efficiency at each such
existing facility must meet appropriate and site-specific standards that address
adequate and healthy river flows, water quality standards, fish passage and
protection measures and mitigation and enhancement opportunities in the
impacted watershed as determined by the department in consultation with
relevant state and federal agencies having oversight and jurisdiction over
hydropower facilities; (ii) only energy from new facilities having a capacity
up to 25 megawatts or attributable to improvements that incrementally increase
capacity or efficiency by up to 25 megawatts at an existing hydroelectric
facility shall qualify; and (iii) no such facility shall involve pumped storage
of water or construction of any new dam or water diversion structure
constructed later than January 1, 1998; (7) low emission advanced biomass power
conversion technologies using fuels such as wood, by-products or waste from
agricultural crops, food or animals, energy crops, biogas, liquid biofuel
including but not limited to biodiesel, organic refuse-derived fuel, or
algae; (8) marine or hydrokinetic energy as defined in section 3; or (9)
geothermal energy. A Class I renewable generating source may be located
behind the customer meter within the
(d) Every
retail electric supplier providing service under contracts executed or extended
on or after
(e) Every
retail supplier shall annually provide to end-use customers in the commonwealth
generation attributes from Class II energy facilities in an amount approved by
the department; provided, however, that the department shall specify that a
certain percentage of these requirements shall be met through energy generated
from a specific technology or fuel type in subsection (d). 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
said 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).
(f) After
conducting administrative proceedings, the department may add technologies or
technology categories to any list; provided, however, that the following
technologies shall not be considered renewable energy supplies: coal, oil,
natural gas and nuclear power. 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 the department for Class I and Class II renewable energy
generating sources. 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.
(g) In
satisfying its annual obligations under subsection (a), each retail supplier
shall provide a portion of the required minimum percentage of kilowatt-hours sales
from new on-site renewable energy generating sources located in the
commonwealth and having a power production capacity of not more than 2
megawatts which began commercial operation after
(h) The
department shall adopt regulations allowing for a retail supplier to discharge
its obligations under subsection (g) by making an alternative compliance
payment in an amount established by the department; provided, however, that the
department shall set on-site generation alternative compliance payment rates at
levels that shall stimulate the development of new on-site renewable energy
generating sources.
(i) A
municipal lighting plant shall be exempt from the obligations under this
section so long as and insofar as it is exempt from the requirements to allow
competitive choice of generation supply under section 47A of chapter 164.
Section 11F1/2. (a) The department shall
establish an alternative energy portfolio standard for all retail electricity
suppliers selling electricity to end-use customers in the commonwealth. Every
retail electric supplier providing service under contracts executed or extended
on or after
(b) The
department, in consultation with the department of environmental protection,
shall set: (1) emission performance standards, including standards for carbon
dioxide emissions, permanent sequestration definitions and standards, and fuel
conversion efficiency standards for all technologies included in this section
such that in the case of gasification, the total overall fuel conversion
efficiency from feedstock to final combustible fuel shall not be less than 70
per cent, consistent with the commonwealth’s environmental goals, including,
but not limited to, the reduction of greenhouse gas emissions; and (2) a net
carbon dioxide emissions rate not to exceed the average emissions rate of
existing natural gas plants in the commonwealth, which shall include all
emissions related to combustion, gasification, fuel processing and
sequestration, whether or not such activities occur at the alternative
generating source or at another location, and in the case of combined heat and
power shall also include thermal delivery. At least once every 2 years
the department shall review and update all standards for new alternative energy
generating sources to strengthen them, as appropriate, as technology
improvements occur.
(c) The
department shall adopt 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.
(d) A
municipal lighting plant shall be exempt from the obligations under this
section so long as and insofar as it is exempt from the requirements to allow
competitive choice of generation supply under section 47A of chapter 164.
SECTION 33. Section 11G of
said chapter 25A, as so appearing, is hereby amended by striking out, in lines
1, 3 and 11, the word “division” and inserting in place thereof, in each
instance, the following word:- department.
SECTION 34. Said section 11G
of said chapter 25A, as so appearing, is hereby further amended by inserting
after the word “department”, in lines 13 and 14, the following words:- of
public utilities.
SECTION 35. Said section 11G
of said chapter 25A, as so appearing, is hereby further amended by striking out
the last 2 sentences and inserting in place thereof the following sentence:- The department shall adopt rules and regulations
necessary to implement this section.
SECTION 36. Section 11H of said
chapter 25A, as so appearing, is hereby amended by striking out, in lines 1, 6,
12 and 31, the word “division” and inserting in place thereof, in each
instance, the following word:- department.
SECTION 37. Said chapter 25A
is hereby amended by striking out section 11I and inserting in place thereof
the following section:-
Section 11I. (a) A state agency,
local governmental body or building authority may use this section in the
procurement of energy management services as an alternative to the procedures
in section 11C. Nothing in this section
shall preclude any such agency, body or authority from proceeding under section
11C.
(b) An agency, local
governmental body or building authority may enter into an energy management
services contract in order to achieve energy savings at facilities in
accordance with this section. All energy
savings measures under the contract shall comply with current local, state and
federal construction and environmental codes and regulations.
(c) Before entering
into an energy management services contract, a state agency, local governmental
body or building authority 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 an energy management services contract, an agency, body
or authority body shall notify the commissioner in writing, in a form and
including information as the commissioner of capital asset management and
maintenance shall prescribe by regulation, of the entity’s intent to solicit
qualifications. The notification, at a
minimum, shall include a copy of the request for qualifications. An acknowledgment of receipt, in a form and
including information as the commissioner of capital asset management and
maintenance shall prescribe by regulation, shall be issued by the commissioner
to the agency, body or authority upon compliance with the requirements of this
subsection.
The request for qualifications
published by a state agency, local governmental body or building authority
shall include the following: (1) the name and address of the agency, body or
authority; (2) The name, address, title and phone number of a contact person;
(3) the date, time and place where qualifications shall be received; (4) 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; (5) the evaluation criteria for assessing
the qualifications; (6) a statement that the agency, body or authority may
cancel the request for qualifications, or may reject in whole or in part any
and all energy savings measures, when it determines that cancellation or
rejection serves the best interests of the public; and (7) any other
stipulations and clarifications the agency, body or authority may require,
which shall be clearly identified in the request for qualifications.
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, 44B and 44E to 44H, inclusive, of chapter 149 shall
not apply to contracts procured under 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 capital asset
management and maintenance, and (2) by an update statement.
The state agency, local
governmental body or building authority shall evaluate the qualified providers
to determine which best meets the needs of the public agency by reviewing the
following:
(1) references of other energy savings contracts performed by the qualified providers;
(2) the certificate of eligibility and update statement provided by the qualified
providers;
(3) quality of the products proposed;
(4) methodology of determining energy savings;
(5) general reputation and performance capabilities of the qualified providers;
(6) substantial conformity with the specifications and other conditions set forth in the
request for qualifications;
(7) time specified in the qualifications for the performance of the contract; and
(8) any other factors the agency, body, or authority 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 state agency, local
governmental body or building authority shall conduct discussions with, and may
require public presentations by, each person who submitted qualifications in
response to the request for qualifications regarding his qualifications,
approach to the project and ability to furnish the required services. The
agency, body or authority shall select in order of preference 3 such persons,
unless fewer persons respond, it considers to be the most highly qualified to
perform the required services. The agency, body or authority may request,
accept and consider proposals for the compensation to be paid under the
contract only during competitive negotiations conducted under subsection (e).
(d) The state agency,
local governmental body or building authority may cancel a request for
qualifications, or may reject in whole or in part any and all proposals when it
determines that cancellation or rejection serves its best interests. The
agency, body or authority shall state in writing the reason for a cancellation
or rejection.
(e) The state agency, local governmental body or building authority shall negotiate a contract with the most qualified person at compensation which it determines is fair, competitive and reasonable. If the agency, body or authority is unable to negotiate a satisfactory contract with the person considered to be the most qualified at a price the agency, body or authority determines to be fair, competitive and reasonable, negotiations with that person shall be formally terminated. The agency, body or authority shall then undertake negotiations with the second most qualified person. Failing accord with the second most qualified person, the agency, body or authority shall terminate those negotiations