3513 ENERGY PERFORMANCE BENCHMARKING OF PRIVATELY-OWNED BUILDINGS

3513.1 Pursuant to D.C. Official Code § 6-1451.03, an owner of a privately-owned building shall annually measure the performance of the building using the ENERGY STAR® Portfolio Manager (Portfolio Manager) benchmarking tool, according to the following schedule:

1. (a) All buildings over two hundred thousand square feet (200,000 sq. ft.) of gross floor area, beginning with 2010 data and thereafter;
2. (b) All buildings over one hundred fifty thousand square feet (150,000 sq. ft.) of gross floor area, beginning with 2011 data and thereafter;
3. (c) All buildings over one hundred thousand square feet (100,000 sq. ft.) of gross floor area, beginning with 2012 data and thereafter; and
4. (d) All buildings over fifty thousand square feet (50,000 sq. ft.) of gross floor area, beginning with 2013 data and thereafter.

3513.2 When determining the size of a building to determine the application of § 3513.1, a building owner shall:

1. (a) Calculate the gross floor area of a building as defined by Portfolio Manager;
2. (b) Include primary spaces but not include secondary spaces, as defined by Portfolio Manager; and
3. (c) Include the combined gross floor area, not including secondary spaces, of any set of buildings that share building systems or at least one common energy or water meter without separate metering or sub-metering, such that their energy or water use cannot be individually tracked and they must benchmarked as one building or campus in Portfolio Manager.

3513.3 According to the schedule in § 3513.1 and the requirements specified in § 3513.4 through § 3513.8, a building owner whose building falls under the benchmarking requirements for the previous calendar year shall:

1. (a) Open a Portfolio Manager account;
2. (b) Request from any non-residential tenants or utility companies the information necessary to fulfill the requirements of § 3513.3(c);
3. (c) Enter into Portfolio Manager the building information required by the District Data Collection Worksheet, including:
4. (1) Energy and water utility information, in accordance with § 3413.7;

(2) Space use attributes information; and

(3) Garage or other secondary space information associated with a building's energy and water use;

(d) Benchmark in Portfolio Manager as one building, property, or campus, following guidance from the United States Environmental Protection Agency (U.S. EPA) and the District Department of the Environment (DDOE), any set of buildings that are served by shared utility systems or at least one common energy or water meter without separate metering or sub-metering, such that the buildings' individual energy or water use cannot be individually tracked, or are of a space type that U.S. EPA recommends be benchmarked as a campus; and

(e) Authorize the transfer of a District Benchmark Results and Compliance Report to the District, via the District Benchmark Reporting Template, exclusive of any financial information.

3513.4 The District Benchmark Results and Compliance Report must include the following:

(a) For a building type for which:

(1) A Portfolio Manager benchmark score is available, a score result between one (1) and one hundred (100); or

(2) A Portfolio Manager benchmark score is not available, an Energy Use Intensity (EUI) result; or

(3) Insufficient information is available to achieve either a Portfolio Manager benchmark score or an EUI result, an explanation of why the requirements of § 3513.3(c) were not met in reasonably sufficient detail to avoid the penalties of § 3513.14;

(b) Information on any non-residential tenants who did not provide needed data as required by § 3513.6, including the tenant's name, contact information, and gross floor area leased; and

(c) Whether whole-building data was included for all utilities, or, if partial-building utility data was included, which set(s) of utility data were partial, and which covered the whole building.

3513.5 A non-residential building owner, or an owner of a residential building with non-residential tenants, shall request the information about tenant spaces required for the owner to fulfill the requirements of § 3513.3(c). The following applies:

(a) Beginning in 2013 and thereafter, and by February 1 of each year, a building owner shall request the space use, energy, and water consumption

information listed on the Non-Residential Tenant Information Form from all non-residential tenants, and may use the Non-Residential Tenant Notification Letter and Non-Residential Tenant Information Form to request this information; or

(b) Beginning in 2013 and thereafter, and by February 1 of each year, provided that one or more utility companies have made access to aggregated utility data available to building owners prior to that date, the building owner may request utility data from the utility company or companies, and is only required to request from non-residential tenants space use information and any utility data not available in aggregate form.

3513.6 Within thirty (30) days of receiving a request for the data listed on the Non-Residential Tenant Information Form from the building owner, a non-residential tenant shall provide complete and accurate information to the building owner. The following applies:

(a) Tenants who sublease their space are responsible for collecting and reporting sub-tenant information and submitting it to the building owner; and

(b) Failure of a non-residential tenant to provide the information listed on the Non-Residential Tenant Information Form to the building owner as required by this section shall subject the tenant to fines under § 3513.14.

3513.7 A building owner shall enter data in Portfolio Manager in accordance with the following:

(a) Whenever possible, building owners should benchmark their building(s) using whole-building utility data:

(1) Whole-building utility data can be obtained by receiving data from all tenants, from master meters, or from a utility company; or

(2) If a utility company has made aggregated utility data available to building owners prior to February 1 of that calendar year, then a building owner must benchmark using whole-building utility data for that utility;

(b) When a non-residential building owner does not have whole-building information sufficient to fulfill the requirements of § 3513.3(c), and has made a reasonable effort to obtain from a non-residential tenant the information required by § 3513.5, but that information has not been received from that tenant, the building owner shall not be relieved of their benchmarking obligations, and shall instead submit a partial-building benchmarking report; and

1. (c) A partial-building benchmarking report shall include any available whole-building information (including any available aggregated utility data), any non-residential tenant information received (where applicable), and all common area information.3513.8 Beginning in 2013 and thereafter, and by April 1 of each year, a building owner shall timely authorize the transfer to the District of a complete and accurate District Benchmark Results and Compliance Report for the previous calendar year .3513.9 If, after submitting a District Benchmark Results and Compliance Report to the District as required in § 3513.8, a building owner receives new or updated information that would require an update to a building's benchmark report, then the building owner shall, within thirty (30) days of receiving the new information, enter the additional or corrected data into Portfolio Manager and authorize the transfer to the District of an updated District Benchmark Results and Compliance Report, and shall notify DDOE accordingly.3513.10 In cases where a building owner has leased a building to a single tenant and that tenant has assumed management of the entire building, the building owner may, at the request of and with the consent of the tenant, delegate all responsibility regarding this section to that tenant, and notify DDOE accordingly.3513.11 Consistent with the requirements of § 3513.1, a building owner shall fulfill the requirements of § 3513.3 beginning with the first full calendar year after:- (a) The building receives its Temporary Certificate of Occupancy or Certificate of Occupancy, whichever comes first; or
2. (b) The building changes ownership.3513.12 If a building owner receives notice that a non-residential tenant intends to vacate a building before the information required by § 3513.5 is due, then:- (a) The building owner shall request that the tenant provide the information on the Non-Residential Tenant Information Form for the period the tenant occupied the building; and
3. (b) The tenant shall provide the information listed on the Non-Residential Tenant Information Form to the building owner as soon as practicable prior to vacating the leased space in the building; or, if such information is not available prior to vacating such space, as soon as practicable after the tenant vacates the building.3513.13 A building owner shall comply with the following record retention requirements:- (a) Preserve benchmark results and supporting records for a period of at least three (3) years. The records shall include:

(1) The U.S. EPA Portfolio Manager confirmation email demonstrating proof-of-submission date;

(2) A copy of the building owner's energy, water, and space use attribute information entered into Portfolio Manager;

(3) Copies of applicable tenant information forms and letters; and

(4) Additional information used to support the information required by § 3513.3(c); and

(b) Make benchmark results and supporting records available for inspection and audit by DDOE during normal business hours, following reasonable notice by DDOE.

3513.14 Enforcement of this section shall proceed as follows:

(a) The Director shall issue a written Notice of Violation to any building owner or non-residential tenant that is determined to be in violation of this section;

(b) If the Director determines that the violation has not been corrected within thirty (30) calendar days of the issuance of a Notice of Violation, a building owner or non-residential tenant shall be assessed a fine of not more than one hundred dollars ($100) per calendar day, during which a complete and accurate District Benchmark Results and Compliance Report has not been timely submitted to the District; and

(c) A building owner or non-residential tenant who receives a fine may request a hearing or adjudication pursuant to the Office of Administrative Hearings Establishment Act of 2001 (D.C. Official Code § 2-1831.01 et seq.) and the Office of Administrative Hearings rules (1 DCMR § 2800 et seq.).

3513.15 In accordance with the provisions § 3513.1, and notwithstanding the provisions of § 3513.5 and § 3513.8, a building owner shall authorize, within sixty (60) days from the effective date of these regulations, the transfer to the District of complete and accurate 2010 and 2011 District Benchmark Results and Compliance Reports.

SOURCE: Final Rulemaking published at 60 DCR 367 (January 18, 2013).