#68:  Energy Code Compliance

On June 12, 2018, Governor Sununu signed into law House Bill 1472, repealing the state code for energy conservation in new construction (RSA 155-D) effective August 7, 2018. RSA 155-D, first enacted in 1979 before the international building codes came into prominence, has largely been redundant since New Hampshire’s adoption of the International Energy Conservation Code as part of its state building code in 2002. HB 1472 was intended to clean up that redundancy.
But repeal of the old law may have an unintended consequence.
As with RSA 155-D, the 2009 IECC — the version currently in effect in New Hampshire — has different rules for residential and commercial buildings. (Residential buildings more than three stories above grade are considered commercial for code compliance purposes; commercial buildings three stories or less above grade may show compliance with residential requirements instead.) Under RSA 155-D:4, plans for both types of construction bearing the certification of a licensed architect or engineer that the design met code had to be submitted to the public utilities commission for review and approval (with the default rule that unless the commission notified the applicant of noncompliance “within 15 working days of receipt, they shall be considered automatically approved”). The commission historically issued a permit only for residential construction (based on submission of application form EC-1), and relied on the design professional's certification without issuing a permit for commercial construction.
Section 103.1 of the 2009 IECC provides that “[t]he construction documents shall be prepared by a registered design professional where required by the statutes of the jurisdiction in which the project is to be constructed.” Upon repeal of RSA 155-D, New Hampshire has no such statute. The new law partially plugs the gap on the residential side, requiring the Building Code Review Board to develop “a simplified residential energy code compliance form based upon the energy provisions in the International Residential Code and the International Energy Conservation Code” which, on proper completion, will be accepted by all New Hampshire code enforcement authorities as evidence of compliance with energy code requirements. But neither an application form nor a design professional’s certification of compliance with energy code requirements is now part of our law for commercial buildings. The new law explicitly charges the public utility commission with a duty of “verification that the applicable project meets the code requirements” for residential construction, but there is no similar requirement for commercial construction.
As with all building codes, enforcement in New Hampshire is at the local level where the municipality has adopted an enforcement mechanism pursuant to RSA 674:51, and at the state level where there is no local enforcement. In the latter case, RSA 155-A:7 shifts enforcement authority over the entire building code (of which the IECC is a part) to the state fire marshal or his designee, but only “upon written request of the municipality.” Thus far no legislation is in the works to bring the public utilities commission into the enforcement mix for commercial buildings, with the result that its rules promulgated under the authority of RSA 155-D are likely to lapse as applied to commercial construction.
Perhaps this gap will eventually be plugged in connection with adopting the 2012 or 2015 IECC, both of which significantly increase required R-values, U-values and energy ratings generally, as well as efficiency of mechanical systems and lighting, over the 2009 version currently in force. New Hampshire is lagging somewhat behind other Northeastern states in keeping up with the triennial revisions to the IECC (Massachusetts, New York and Vermont use the 2015 version, Connecticut and Rhode Island the 2012 version). The last legislative push to update New Hampshire’s building codes, including the IECC, was defeated in 2016 when the Building Code Review Board's recommendation to adopt the 2015 version of all of the international building codes as a group met with industry lobbying resistance. Nothing prevents the Board from adopting rules directly amending the code pursuant to RSA 155-A:10, which authorizes such amendments subject to later ratification by the Legislature.
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