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Energy Code Changes Proposed for Texas beginning January 2011 After much work on the part of TAB

and its membership, the State Energy Conservation Office (SECO) has proposed an update to the state energy codes favorable to TABs position on the issue. The proposed rule, published in the March edition of the Texas Register, will update the energy code for one and two family homes, duplexes and townhomes to the energy chapter of the 2009 IRC. SECO has proposed that the statewide energy code be the 2009 IRC for single family homes beginning January 2012 and the 2009 IECC for all other residential construction beginning January 2011. The rule change was published in the March edition of the Texas Register. Since the change to a new energy code is six months away for multi-family and attached product builders, it is prudent to thoroughly examine the new codes as well as the product design and construction practices currently being used in anticipation of the pending changes. For detached single family home builders, the 2012 date should provide enough lead time to implement changes to both product and practice. However, where builder and code official training has occurred, and where the supply of independent testers is adequate, a municipality may make the move to the 2009 code in advance of the January 2012 statewide mandate. Officially, energy standards for residential construction in Texas began in 2001 when the 77th Legislature enacted the Texas Emissions Reduction Plan (TERP). The Plan added energy performance standards to the Texas Health and Safety Code to help the state meet standards established by the Federal Clean Air Act. The assumption being that less energy demand equals less power plant emissions. State law requires that single family homes and duplexes must adhere to the energy efficiency chapter of the 2000 International Residential Code (IRC). For all other residential construction, or for homes that have greater than 15 percent glass in the exterior wall area, the 2000 International Energy Conservation Code (IECC) must be followed. Municipalities are able to adopt newer codes and make amendments to the code that are more restrictive than that required by the state. Most cities in Texas have opted to exercise this power, and it is estimated that more than 70 percent of the new residential construction in Texas is covered by more restrictive energy codes than what was originally required by TERP. In 2007, the Texas Legislature made a subtle but important change to the Texas Health and Safety Code. The change allows the State Energy Conservation Office (SECO), based on written recommendations from the Energy Systems Laboratory (ESL) at the Texas A&M Engineering Experiment Station, by rule, to adopt or substitute more stringent energy codes for residential construction in Texas. In June, 2009, SECO posted a request for comments in the Texas Register seeking input on moving the state to a better code. TAB submitted comments effectively stated that the move to the new 2009 codes is not advisable until adequate training has occurred for all those involved in the permitting and construction process and enough independent energy testers capable of performing the testing requirements needed for code compliance are available in all areas of Texas. Some comments received by SECO called for implementation of the 2009 IECC. The differences between the IECC and the IRC are subtle, but there is a difference. The IRC is a stand-alone document that creates minimum regulations for one- and two-family dwellings of three stories or less. It contains all of the building, plumbing, mechanical, fuel gas, electrical and energy provisions needed for home assembly. The IECC is more focused on building performance and energy conservation through efficiency in envelope design, mechanical systems, lighting systems, and the use of new materials and techniques.

Here in Texas, provisions in the 2009 IECC would limit the use of cathedral ceilings for homes built in the Panhandle region. For the majority of the state, the window solar heat gain coefficient (SHGC) moves from the .35 called for in the IRC to the more stringent .30 in the IECC. Bob Ross, Accelerated Building Technologies, and a member of TABs Codes and Standards Committee says Requiring the IECC for single family residential construction may not yield vast savings and could halt the use of some construction products and practices that are perfectly adequate for Texas climate zones. The successes of ENERGY STAR and other above code programs clearly demonstrate that they are meeting the demand for increased home performance. To be sure, TAB is not against the 2009 codes, but rather wants pragmatic implementation of the new code to avoid market disruptions in those areas where training has not occurred or independent testers are not located.

Here is the letter sent from TAB to SECO about the code change proposal:
Mr. Dub Taylor Director, State Energy Conservation Office Comptroller of Public Accounts P.O. Box 13528 Austin, Texas 78711-3528 Dear Mr. Taylor: On behalf of the Texas Association of Builders (TAB), I would like to submit the following preliminary comments regarding the State Energy Conservation Offices (SECO) proposed update to the Texas building energy performance standards, as published in the March 26, 2010 edition of the Texas Register. TAB appreciates the opportunity to comment on this important issue and applauds SECO in its efforts to work with all interested parties. In summary, TAB commends SECO for its lengthy and open discussion of the issue, including a public stakeholders meeting, and concurs with SECOs proposed implementation of the updated energy performance standards.

Home builders in Texas have embraced energy efficient building standards and followed market forces to make Texas a leader in energy efficient home construction. Texas leads the nation in the number of Energy Star homes with 31,995 Energy Star qualified new homes in 2008 alone. The state with the next highest number of Energy Star qualified new homes in 2008 was Arizona with 5,944, and the states that comprise the remaining top ten for 2008 total a mere 29,025 homes. Additionally, local homebuilding associations such as the HBA of Greater Dallas and the Greater Houston Builders Association have implemented their own respected green building programs, while the National Association of Home Builders worked with the International Code Council (the publisher of the IRC and the IECC) and the American National Standards Institute, or ANSI, to create the first true green building standard in the nation. While the state energy code statutes do not require the 2009 energy codes at this time, something that will be remedied through the adoption of the proposed rules referenced above, numerous cities have significantly updated their energy codes or are currently taking steps toward the adoption of 2009 energy code standards. Our industry is proud of these achievements and the great strides Texas home builders have made in building energy efficient green homes across our state.

As you well know, in 2007, the 80th Texas Legislature enacted SB 12 and HB 3693, which allows SECO to adopt and substitute the energy efficiency provisions of the latest published edition of the International Residential Code (IRC) as the state energy code for single-family residential construction as defined and detailed by Sections 388.002 and 388.003, Texas Health and Safety Code. The state statute, however, does not allow SECO to amend the IRC in any way, and requires that the energy efficiency provisions of the IRC be the energy code for single-family residential construction. Following is the language of Subsections 388.003(a), (b), (b-1) as added by Acts 2007, 80th Leg., R.S., Ch. 262, Sec. 3.01, and (b-1) as added by Acts 2007, 80th Leg., R.S., Ch. 939, Sec. 11, Texas Health and Safety Code, which clearly show this to be the case: Sec. 388.003. ADOPTION OF BUILDING ENERGY EFFICIENCY PERFORMANCE STANDARDS. (a) To achieve energy conservation in single-family residential construction, the energy

efficiency chapter of the International Residential Code, as it existed on May 1, 2001, is adopted as the energy code in this state for single-family residential construction. (b) To achieve energy conservation in all other residential, commercial, and industrial construction, the International Energy Conservation Code as it existed on May 1, 2001, is adopted as the energy code for use in this state for all other residential, commercial, and industrial construction. * * * Text of subsection as added by Acts 2007, 80th Leg., R.S., Ch. 262, Sec. 3.01 (b-1) If the State Energy Conservation Office determines, based on written recommendations from the laboratory, that the latest published edition of the International Residential Code energy efficiency provisions or the latest published edition of the International Energy Conservation Code will result in residential or commercial energy efficiency and air quality that is equivalent to or better than the energy efficiency and air quality achievable under the editions adopted under Subsection (a) or (b), the office may by rule adopt the equivalent or more stringent editions and substitute them for the energy codes described by Subsection (a) or (b). The rule, if adopted, shall establish an effective date for the new energy codes but not earlier than nine months after the date of adoption. The laboratory shall make its recommendations not later than six months after publication of new editions at the end of each three-year code development cycle of the International Residential Code and the International Energy Conservation Code. Text of subsection as added by Acts 2007, 80th Leg., R.S., Ch. 939, Sec. 11 (b-1) If the State Energy Conservation Office determines, based on written recommendations from the laboratory, that the energy efficiency provisions of the latest published editions of the International Residential Code or the International Energy Conservation Code for residential or commercial energy efficiency and air quality are equivalent to or more stringent than the provisions of editions adopted under Subsection (a) or (b), the office by rule may adopt and substitute in the energy code the equivalent or more stringent editions for of the initial editions described by Subsection (a) or (b). If the State Energy Conservation Office adopts the latest published editions of the International Residential Code or the International Energy Conservation Code into the energy code, the office shall establish an effective date for the new editions that is not earlier than nine months after the date of adoption. The laboratory shall submit recommendations concerning the latest published editions of the International Residential Code or the International Energy Conservation Code not later than six months after publication of new editions. * * * [emphasis added] As you can see by the italicized portions above, the energy efficiency chapter of the IRC is clearly the state energy code for single family residential construction in the state of Texas. Furthermore, in reading Subsections 388.003(a), (b-1) as added by Acts 2007, 80th Leg., R.S., Ch. 262, Sec. 3.01, and (b-1) as added by Acts 2007, 80th Leg., R.S., Ch. 939, Sec. 11, Texas Health and Safety Code, together, it is equally clear that SECO may only substitute the latest published chapter of the IRC as the energy code for such residential construction. The International Energy Conservation Code (IECC), as stipulated by Sec. 388.003(b), is limited to serving as the state energy code for all residential, commercial, and industrial construction other than single family residential construction as defined by the applicable statutes. During the 81st Texas Legislative Session, two pieces of legislation showed Legislators intent to delay implementation of the updated energy codes until 2012, with which TAB wholeheartedly agrees. These pieces of Legislation, SB 16 and HB 2783, contained nearly identical provisions regarding the state energy code. Under both bills, which died solely due to time constraints, the state would have adopted the energy efficiency provisions of the 2009 IRC as the state energy code for single family residential construction. Just as those bills can be used to show an intent by Legislators to delay implementation of the 2009 energy codes to 2012, they can be used to show, once again, the intent of Legislators to use the IRC energy provisions as the state energy code for single family residential construction.

During a January 28, 2010 stakeholders meeting on the issue, a question was posed whether or not SECO can amend the energy codes in the updating process outlined by Chapter 388.003, Health and Safety Code. Based on a thorough reading of the statute, it is TABs contention that SECO may not make amendments to the energy codes. Subsections 388.003(d), (e) and (f) speak to a municipalitys ability to amend the energy codes established under Sec. 388.003. Due to the fact that the statute does not give the same authority to SECO to amend the state energy codes, it seems clear that the Texas Legislature had no intention of giving SECO this amendment authority.

TAB would also like to positively recognize SECOs proposal to delay implementation of the energy provisions of the IRC until 2012. Such delayed implementation gives homebuilders sufficient time to review and understand the updated codes, as well as to redesign floor plans and marketing materials. Additionally, municipal inspectors and plan review technicians must be fully trained to the new codes and sufficient time is needed to have an adequate number of independent third party inspectors available in all areas of Texas to perform the air leakage tests and other verifications required by the new codes. It must be noted that delaying implementation for a reasonable amount of time should not impact federal funding under certain provisions of the American Recovery and Reinvestment Act of 2009 (ARRA) that relate to state energy grants. In order to receive such grants, the governor of a recipient state must notify the U.S. Secretary of Energy that such governor has obtained the necessary assurances that the state will, among other things, implement energy codes that meet or exceed the 2009 IECC, with a plan for substantial compliance by 2017. It is TABs understanding that Governor Perry has taken this step. The energy requirements in the IRC are almost identical to the IECC and the IRC allows compliance with the IECC as an alternative to the energy efficiency chapter of the IRC. Furthermore, SECO is taking the proper measures to update the states energy code to the 2009 IECC, which applies to commercial buildings, industrial construction and all residential structures apart from single-family residential construction.

In conclusion, TAB reiterates its strong position that under existing statute, the state energy code for single family homes is the energy chapter of the IRC, which SECO may update without amendments with the latest published energy provisions of the IRC. Consequently, the IECC may not, by statute, serve as the state energy code for Single-Family Residential construction as that term is defined in Sec. 388.002(12), Texas Health and Safety Code. The update, as proposed by SECO, affirms this interpretation. Lastly, TAB credits SECO for proposing a delayed implementation of the 2009 IRC provisions until 2012 in order to give homebuilders and the related trades time to fully and effectively implement the new energy code. Please do not hesitate to contact me should you have any questions or comments, and let my office know if there is anything TAB can do to assist SECO.

Sincerely,

Ned Muoz V.P. of Regulatory Affairs and General Counsel Cc: Texas Governor Rick Perry Texas Lt. Governor David Dewhurst Texas Speaker of the House Joe Straus, III The Honorable Robert Duncan The Honorable Kip Averitt The Honorable Rafael Anchia

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