The District of Columbia Department of Energy & Environment (DOEE) has published a Notice of Proposed Rulemaking (Proposed Rule) to adopt Building Energy Performance Standards (BEPS) Program Infractions as amendments to Chapter 40 of Title 16 of the D.C. Municipal Regulations (DCMR). The Proposed Rule, issued on April 14, 2022, would establish a schedule of civil infractions for violations of the District's BEPS Program.
The BEPS Program was created under Title III of the Clean Energy DC Omnibus Amendment Act of 2018 (CEDC Act) to increase energy performance in existing buildings in furtherance of the District's goal of reducing greenhouse gas emissions and energy consumption by 50 percent by 2032. To accomplish this goal, the CEDC Act directed DOEE to establish property types and corresponding BEPS for each property type to set a minimum threshold for energy performance.
As of 2022, the BEPS apply to all privately owned commercial and multifamily buildings of more than 25,000 gross square feet. By 2025, all privately owned buildings over 10,000 square feet will be subject to the BEPS Program. Buildings that meet these size thresholds are required to benchmark their energy use and demonstrate energy performance above a DOEE-established baseline. Properties that do not demonstrate compliance with the BEPS have five years to complete the requirements of compliance pathway established by DOEE.
Proposed Penalties
The Proposed Infractions Rule sets forth the following schedule of civil infractions for violations of the BEPS Program:
Considerations and Next Steps
DOEE is currently accepting public comments on the Proposed Infractions Rule, which must be submitted to DOEE no later than May 14, 2022. The authors can assist building owners and tenants in the preparation and submission of comments.
On a related front, on April 14, 2022, DOEE published its final BEPS Compliance and Enforcement Guidebook for BEPS Compliance Cycle 1 (Guidebook). The Guidebook contains policies, procedures, examples and technical information to assist property owners in understanding the requirements, compliance pathways and enforcement methods of the BEPS Program. Owners whose properties are subject to the BEPS Program should review the Guidebook carefully to ensure compliance. Owners can also track the compliance status of their buildings through DOEE's Building Owner Portal. These resources can assist property owners in understanding their obligations under the BEPS Program and determining what tasks remain to be completed within the compliance cycle.
Finally, D.C. landlords and tenants should review their commercial and residential property leases to determine whether their lease agreements contain provisions relating to which party is responsible for ensuring the property's compliance with the BEPS Program. These provisions should also contain explicit language regarding which party will be responsible for payment of any fines assessed by DOEE for violation(s) of the BEPS. Shared responsibility for any BEPS fines or fees may be preferable since tenant activities typically account for significant energy usage.