MurteL BowsER
Mayor
September 23, 2022
The Honorable Phil Mendelson
Chairman
Councilofthe District of Columbia
1350 Pennsylvania Avenue, NW
Suite 504
Washington, DC 20004
Dear Chairman Mendelson:
Turge the Council to take prompt and favorable action on the enclosed legislation. The proposed
resolution would approve the schedule of fines for violations related to the Building Energy
Performance Standards program as administered by the Department of Energy and Environment.
Lurge the Council to take prompt and favorable action on the "Building Energy Performance
Standards Program Infractions Resolution of2022".
Sincerely,
ure MSoyser
Enclsures
 z hairman Phil Mendelson.
at the requestofthe Mayor
A PROPOSED RESOLUTION
IN THE COUNCIL OF THE DISTRICT OF COLUMBIA
To approve the proposed final rulemaking establishing a scheduleofcivil infractions for
violations of Building Energy Performance Standards requirements under the
CleanEnergy DC Omnibus Amendment Act of 2018.
RESOLVED, BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this
resolution may be cited as the Building Energy Performance Standards Program Infractions
22 Resolution of 2022.
23 Sec. 2, Pursuant to section 104(a)(1) of the Department of Consumer and Regulatory
24 Affairs Civil Infractions Act of 1985, effective October 5, 1985 (D.C. Law 6-42; D.C. Official
25 Code 2-1801.04(a)(1)) and section 301(i)ofthe CleanEnergy DC Omnibus Amendment Act of
26 2018, effective March 22, 2019 (D.C. Law 22-257; D.C. Official Code 8-1772.21(i)) (Clean
27 Energy DC Omnibus Amendment Act), the Council approves the proposed final rulemaking
28 adopted by the Department of Energy and the Environment, which was published in the D.C.
29 Register on April 15, 2022 at 69 DCR 003556, to establish a scheduleofcivil infractions for
30 violationsofsection 301ofthe CleanEnergy DC Omnibus Amendment Act (D.C. Official Code
31 8-1772.21),
32 Sec. 3. Transmittal.
33 The Secretary to the Council shall transmit a copy of this resolution, upon its adoption, to
34 the Mayor, the Director of the Department of Energy and Environment, and the Administrator of
35 the Office of Documents and Administrative Issuances.
36 Sec. 4. Fiscal impact statement.
37 The Council adopts the fiscal impact statement in the committee report as the fiscal
38 impact statement required by section 4a of the General Legislative Procedures Act of 1975,
39 approved October 16, 2006 (120 Stat. 2038; D.C. Official Code 1-301.47a).
40 Sec. 5. Effective date.
4 This resolution shall take effect immediately.
 DEPARTMENT OF ENERGY AND ENVIRONMENT
NOTICEOFFINALRULEMAKING
Building Energy Performance Standards Program Infractions
The Director of the Department of Energy and Environment (DOE or Department), pursuant to
the authority set forth in the Department of Consumer and Regulatory Affairs Civil Infractions Act
of 1985, effective October 5, 1985 (D.C. Law 6-42; 2-1801.04 (2013 Repl.)); the District
Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C.
Law 16-51; D.C. Official Code 8-151.01 et seq.) (2013 Repl. & 2017 Supp.)); section 301ofthe
CleanEnergy DC Omnibus Amendment Act of 2018 (CEDC Act), effective March 22, 2019 (D.C.
Law 22-257; 66 DCR 3973 (April 5, 2019)), as amended by section 2 of the CleanEnergy DC
Omnibus Technical Amendment Temporary Amendment Act of 2020, effective March 16, 2021
(D.C. Law 23-258; 68 DCR 3680 (April 9, 2021)); Mayor's Order 2006-61, dated June 14, 2006;
and Mayors Order 2020-087, dated August 21, 2020, hereby gives noticeofthe intention to adopt
the following amendments to Chapter 40 (Department of Environment (DDOE) Infractions) of
Title 16 (Consumers, Commercial Practices, and Civil Infractions) of the District of Columbia
Municipal Regulations (DCMR).
This final rulemaking establishes a schedule of civil infractions for violations of the District's
Building Energy Performance (BEPS) Program rules. A Notice of Proposed Rulemaking was
published in the District of Columbia Register on April 15, 2022 (69 DCR 003556). A thirty (30)
day comment period on the proposed rulemaking ended on May 16, 2022.
DOEE received one (1) set of comments after the close of the public comment period, DOEE
considered the comment and responds below.
First Offense
Citing changes in economic conditions for the downtown office market and the continued impact
of the COVID-19 pandemic, the commenter requested that DOEE commit to not subjecting
building owners to a monetary fine for a first offense if the building owner can demonstrate a
good faith effort to comply with specific BEPS regulations. DOEEs strategy for enforcing and
ensuring compliance with the BEPS regulations is beyond the scope of this rulemaking, which
solely establishes a scheduleofcivil infractions for the violation of BEPS regulations.
Failure to Select a Compliance Pathway
20 DCMR 3519.2 states that [tJhe ownerof a building that does not meet the BEPS shall select
a compliance pathway described under 3518.1 for DOEE review and approval. The commenter
noted that 20 DCMR 3519.3 of the BEPS regulations states that [iJfa building owner does not
select a compliance pathway as specified in 3519.2 or does not receive DOEE approval for a
pathway, DOEE shall assign a pathway for the building. The commenter further noted that section
4018.2 in the civil infraction schedule designates the failure to submit selection ofa compliance
pathway as a Class 2 infraction, subjecting an offending building owner to a $1,000 fine. The
 commenter believes that the fine and infraction designation are unnecessary because, if a
building owner does not select a compliance pathway, DOEE shall assign a pathway under 20
DCMR 3519.3, rendering proposed Section 4018.2 superfluous.
DOEE does not agree. The fact that DOE will assign a pathway under 20 DCMR 3519.3 toa
building owner that fails to select a compliance pathway or fails to have one approved by DOEE
does not render section 4018.2 superfluous. Instead, it is appropriate that a failure to comply
with the regulatory requirement to select a compliance pathway for DOEE review and approval
should subject an offending regulated party to a possible civil infraction.
DOEE is finalizing the rule as proposed. The final rulemaking was submitted to the Council of the
District of Columbia for review and approval, in accordance with D.C. Official Code 2-1801.04
[and was approved/passively approved by the Council]
The rule will become effective on the dateofpublicationofthis notice in the District of Columbia
Register.
Chapter 40, DEPARTMENT OF ENVIRONMENT (DDOE) INFRACTIONS, of Title 16
DCMR, CONSUMERS, COMMERCIAL PRACTICES, AND CIVIL INFRACTIONS, is
amended as follows:
A new Section 4018, BUILDING ENERGY PERFORMANCE STANDARDS PROGRAM
INFRACTIONS, is added to read as follows:
4018 BUILDING ENERGY PERFORMANCE STANDARDS PROGRAM
INFRACTIONS
4018.1 Violation of anyofthe following provisions shall be a Class|infraction:
(@) 20 DCMR 3518.3 (implementationof a compliance measure that poses a
threat to the health and safetyof a building occupant or user).
4018.2 Violation of anyofthe following provisions shall be a Class 2 infraction:
(@) 20 DCMR 3519.2 (failure to submit selection ofa compliance pathway
to DOEE).
4018.3 Violation of anyofthe following provisions shall be a Class 3 infraction:
(2) 20 DCMR3519.5 (failure to submit a report on completed actions for a
performance or standard target pathway to DOEE);
(b) 20 DCMR 3519.6(a) (failure to submit an energy audit for a prescriptive
pathway to DOE);
 () 20 DCMR 3519.6(b) (failure to submit an action plan for a prescriptive
pathway to DOEE);
(d) 20 DCMR 3519.6(c) (failure to submit an implementation report for a
prescriptive pathway to DOEE);
(e&) 20 DCMR 3519.6(d) (failure to submit an evaluation, monitoring, and
verification report for a prescriptive pathway to DOEE);
() 20 DCMR 3519.6(e) (failure to submit additional documentation for an
approved prescriptive pathway to DOEE);
(g) 20 DCMR 3519.8 (failure to submit documentation for an alternative
compliance pathway to DOE);
(h) 20 DCMR 3519.10 (failure to submit supporting documentation to
DOEE);
(i) 20 DCMR 3519.11 (failure to submit a complete and accurate plan or
report or complete and accurate documentation); and
G) 20 DCMR 3519.13 (failure to provide a buyer of a building with
information prior to a transfer or sale).
4018.4 [RESERVED]
 GOVERNMENT OF THE DISTRICT OF COLUMBIA
Office of the Attorney General
xk *
ATTORNEY GENERAL. Es
KARL A, RACINE EES)
Legal Counsel Division
MEMORANDUM
TO: Bryan Hum
Interim Director
Office of Policy & Legislative Affairs
FROM: Brian K, Flowers
Deputy Attorney General
Legal Counsel Division
DAT! August 10, 2022
SUBJECT: Legal Sufficiency Review Draft Building Energy Performance Standards
Program Infractions Resolution of 2022
(AE-21-313-B)
This is to Certify that tnis ottice nas reviewed the above-
referenced proposed resolution and found it to be legally sufficient. If you have any
questions in this regard, please do not hesitate to call me at 724-5524,
Buan 6. Flowere
Brian K. F
[350 Pennsylvania Avenue, NW, Suite 409, Washington, D.C. 20004 Phone (ia) 7245524 Fax (200) 750-0654