Massachusetts Department of Energy Resources Seeks Comment on Appliance Efficiency Standards

Chapter 8 of the Acts of 2021, An Act Creating a Next-Generation Roadmap for Massachusetts Climate Policy (the Climate Act), signed by Gov. Charlie Baker on March 26, 2021, includes new energy and water efficiency standards for 15 categories of products. The Massachusetts Department of Energy Resources (DOER) has released draft revisions to 225 CMR 9.00 (the Regulations) incorporating these statutory standards. Effective Jan. 1, 2022, manufacturers may not ship any products into Massachusetts that do not meet the new standards.

The draft revisions to the Regulations include the statutory energy and water efficiency standards for commercial hot-food holding cabinets, computers and computer monitors, state-regulated general service lamps, high color rendering index fluorescent lamps, plumbing fittings, plumbing fixtures, portable electric spas, water coolers, residential ventilating fans, commercial ovens, commercial dishwashers, commercial fryers, commercial steam cookers, spray sprinkler bodies and electric vehicle supply equipment. Each of these terms is defined; for example, "Electric Vehicle Supply Equipment" is defined as the electric component assembly or cluster of component assemblies designed to charge batteries within electric vehicles by permitting the transfer of electric energy to a battery or other storage device in an electric vehicle. The Climate Act provides that these new standards will take effect on Jan. 1, 2022, and that no covered product may be "sold or offered for sale, lease or rent" in Massachusetts unless the standards are met.

Although Massachusetts has had energy efficiency standards for appliances since 1986, they have not been updated since 2005. The latest revision includes new requirements for water conservation that had not previously been included in the regulations. A wide variety of plumbing fixtures will now be regulated for the first time. It remains to be seen if pandemic-related supply chain issues will have an impact on the new requirements, including for commercial real estate development, especially considering the Commonwealth's multi-family affordable housing goals. Design professionals will need to get up to speed quickly in order to timely incorporate the changes into contract specifications. Contractors will also need to be familiar to ensure proper procurement of compliant building materials. Given how quickly the changes are mandated, this will likely lead to ongoing discussions among owners, contractors and lenders concerning which party should bear the cost of these changes, including price escalations and scheduling delays.

Interestingly, despite efforts to reduce the use of fossil fuels, no change is proposed for residential furnaces or boilers, including those that utilize fossil fuels such as natural gas, propane and fuel oil. However, the draft regulations retain the following exemption process:

The commissioner may adopt rules to exempt compliance with these furnace or boiler standards at any building, site or location where complying with said standards would be in conflict with any local zoning ordinance, building or plumbing code or other rule regarding installation and venting of boilers or furnaces. [225 C.M.R. 9.03(4)(a)]

Given the Climate Act's mandate and the speed at which it must be implemented, it seems unlikely that there will be time to consider substantial changes to the draft regulations.

Public Hearing and Comment Deadline

DOER is currently seeking public comment on the Regulations until 5 p.m. on Sept. 29, 2021, and will also hold a public hearing via Zoom on Sept. 29 from noon to 2 p.m. According to the DOER website, the goal of the update to the Regulations is to not only incorporate the new statutory standards but to gather stakeholder feedback about how DOER should enforce the new standards.

Holland & Knight's Massachusetts-based real estate and environmental attorneys will continue to follow the revisions to the Regulations, as well as other initiatives in response to the Climate Act. For questions about a specific project or for assistance with drafting or submitting comments on the revisions to the Regulations, please contact the authors.

Previous Alerts in This Series

• Introduction: Massachusetts Climate Change Adaptation Initiatives: What Real Estate Professionals Should Know
• Part 2: MEPA Office Issues Draft Interim Protocol on Climate Adaptation and Resiliency
• Part 3: Massachusetts Communities Think Globally, Act Locally on Climate Change
• Part 4: MEPA Office Issues Revised Protocols on Climate Change and Environmental Justice
• Part 5: Massachusetts Municipalities Pursue Building Code Revisions While Awaiting State's Next Steps

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