CHAPTER 41 – STATE ENERGY OFFICE

 

SUBCHAPTER 41A - ORGANIZATION

 

01 NCAC 41A .0101          purpose

(a)  The Energy Division administers the U.S. Department of Energy's regulations as they relate to the State of North Carolina.

(b)  It develops and coordinates research and studies to provide facts upon which to base energy‑related policy recommendations, provides early warning of impending energy shortages and prepares plans for such contingencies.

(c)  It initiates energy‑related policy recommendations in cooperation with other state agencies and cooperates with federal, regional and neighboring state authorities on energy matters of mutual concern.

(d)  It coordinates state government agency energy conservation measures and, as appropriate, effects coordination between state government and the private sectors in promoting energy conservation.

(e)  The Energy Division provides staff support to the Energy Policy Council.

 

History Note:        Filed as an Emergency Regulation Eff. March 6, 1978, for a period of 120 days to expire on

July 3, 1978;

Authority G.S. 143B‑429; 143B‑430; 143B‑431; 143B‑449;

Made Permanent Eff. July 3, 1978;

Transferred from 04 NCAC 12C .0102 Eff. May 15, 2007.

01 NCAC 41A .0102          DEFINITIONS

The following definitions apply to this Chapter:

(1)           "End‑user" means any firm which is an ultimate consumer of an allocated product other than a wholesale purchaser‑consumer.

(2)           "Wholesale purchaser‑consumer" means any firm that is an ultimate consumer and who:

(a)           is classified agricultural production and purchases more than 20,000 gallons of allocated product per year;

(b)           is classified multi‑family residence and purchases more than 50,000 gallons of allocated product per year; or

(c)           purchases more than 84,000 of allocated product per year.

(3)           "Wholesale purchaser‑reseller" means any firm which purchases, receives through transfer, or otherwise obtains (as by consignment) an allocated product and resells or otherwise transfers it to other purchasers without substantially changing its form.

(4)           "Prime supplier" is a supplier or producer who makes the first sale of any allocated product which is subject to state set‑aside into the state distribution system for consumption within the state.

(5)           "State set‑aside" is that amount of an allocated product made available from the total supply of a prime supplier for utilization by the state to resolve emergencies and hardships due to shortages.

(6)           "Base Period" shall be the 12 month period immediately preceding the months in which an applicant applies for state set‑aside product, or such other time as may be determined by the Energy Division in the event that the 12 month base period is not applicable.

(7)           "Emergency" is a situation or set of circumstances which require immediate remedial action.

(8)           "Hardship" exists when a wholesale purchaser‑consumer or end‑user is adversely affected by his inability to obtain a sufficient quantity of an allocated product.

(9)           "Energy crisis" will exist upon a finding by the Governor with the advice and consent of the Legislature, that there is an actual or impending shortage or curtailment of usable, necessary energy resources to the extent that the maintenance of necessary services; and protection of public health, safety and welfare; or the maintenance of a sound basic state economy is imperiled, as defined and authorized by G.S. 113B‑20.

(10)         "Market area" means a one mile radius around a retail sales outlet selling gasoline and diesel fuel.  [This definition may be used as a factor for determining an applicant's eligibility for state set‑aside fuel if no other retail sales outlet is within this radius to serve customers.]

(11)         "Customer/supplier relationship" will exist between an end‑user, wholesale purchaser‑consumer or wholesale purchaser‑reseller and a supplier after a business relationship has existed for a 30‑day period.

(12)         "Firm" means any association, company, corporation, estate, individual, joint‑venture, partnership, or sole proprietorship or any other entity however organized including charitable, educational, or other eleemosynary institutions, federal government, state and local governments and any other instrumentalities.

(13)         "Agricultural production" means all activities classified under the industry code numbers specified in Subparagraph (a) of this Paragraph, as set forth in the Standard Industrial Classification Manual, latest edition, except those industry code numbers listed in Subparagraph (b) of this Paragraph, which are excluded:

(a)           Activities:

(i)            All industry code numbers included in Division A, Agriculture, Forestry and Fishing, except as specified in Subparagraph (b) of this Paragraph;

(ii)           All industry code numbers included in Major Group 20 and 21, Food and Kindred Products, of Division D, Manufacturing, including grain and seed drying, except as specified in Subparagraph (b) of this Paragraph; and

(iii)          All the following other industry code numbers:

(A)          1474 Potash, Soda and Borate Minerals (Potash mining only);

(B)          1475 Phosphate Rock;

(C)          2141 Tobacco Stemming and Drying;

(D)          2411 Logging Camps and Logging Contractors;

(E)           2819 Industrial Inorganic Chemicals not elsewhere classified (dicalcium phosphate only);

(F)           2873 Nitrogenous Fertilizers;

(G)          2874 Phosphatic Fertilizers;

(H)          2875 Fertilizers, Mixing Only;

(I)            2879 Pesticides and Agricultural Chemicals not elsewhere classified;

(J)            4212 Local Trucking Without Storage (farm to market hauling and log trucking only);

(K)          4971 Irrigation Systems (for farm use; and

(L)           5462 Retail Bakeries, Baking and Selling.

(b)           Activities excluded:

(i)            All the following industry code numbers, otherwise listed under Division A, Agriculture, Forestry and Fishing, are excluded from the definition:

(A)          0181 Ornamental Floriculture and Nursery Products;

(B)          0271 Fur‑Bearing Animals and Rabbits (except rabbit farms);

(C)          0272 Horses and Other Equines;

(D)          0279 Animal Specialties not elsewhere classified (except apiaries, honey production and bee, catfish, fish, frog and trout farms which are included in the definition);

(E)           0742 Veterinary Services for Animal Specialties;

(F)           0752 Animal Specialty Services;

(G)          0781 Landscape Counseling and Planning;

(H)          0782 Lawn and Garden Services;

(I)            0783 Ornamental Shrub and Tree Services; and

(J)            0849 Gathering of Forest Products, not elsewhere classified.

(ii)           All the following industry code numbers, otherwise listed under Major Groups 20, Food and Kindred Products, of Division D, Manufacturing, are excluded from the definition;

(A)          2047 Dog, Cat and Other Pet Food;

(B)          2067 Chewing Gum;

(C)          2084 Wines, Brandy, and Brandy Spirits; and

(D)          2085 Distilled, Rectified and Blended Liquors.

(14)         "Emergency Services" means law enforcement, fire fighting and emergency medical/ambulance services.

(15)         "Energy Production" means the exploration, drilling, mining, refining, processing, production and distribution of coal, natural gas, geothermal energy, petroleum products, shale oil, nuclear fuels and electrical energy.  It also includes the construction of facilities and equipment used in energy production, such as pipelines, mining equipment and similar capital goods.

(16)         "Sanitation Services" means the collection and disposal of solid wastes, whether by public or private entities, and the maintenance, operation and repair of liquid purification and waste facilities.  Sanitation services also includes the provision of water supply services by public utilities, whether privately or publicly owned or operated.

(17)         "Telecommunication Services" means the emergency or essential installation, repair, operation and maintenance of voice, data, telegraph, video and similar communications services to the public by a communications common carrier, excluding sales and administrative activities.

(18)         "Passenger Transportation Services" means publicly and privately owned air and surface operations for transporting members of the general public, bus transportation of pupils to and from school (but not including elective extra‑curricular activities), and vanpool operations, and includes facilities necessary to support such operations.

(19)         "Truck" means a motor vehicle for transportation with a gross weight in excess of 20,000 pounds.

(20)         "Health Service Facilities" means hospitals, psychiatric facility, rehabilitation facility, long‑term care facility, kidney disease treatment center, intermediate care facility for mentally retarded, home health agency, chemical dependence treatment facility and ambulatory surgical facility.

 

History Note:        Filed as an Emergency Regulation Eff. March 6, 1978, for a period of 120 days to expire on

July 3, 1978;

Authority G.S. 143B‑429; 143B‑430; 143B‑431; 143B‑449;

Made Permanent Eff. July 3, 1978;

Amended Eff. April 1, 1991; May 15, 1979;

Transferred from 04 NCAC 12C .0104 Eff. May 15, 2007.

 

01 NCAC 41A .0103          SCOPE AND PURPOSE OF STATE SET‑ASIDE

(a)  Control of certain products, may from time‑to‑time be designated by the state.  The products are to be allocated by the state for the purpose of alleviating hardships and/or emergencies within the state. Issuance of the state set‑aside, based upon proof of hardship and/or emergency will follow the priority rules and any special rule as set forth in this Chapter or issued by the Energy Division.  The application must clearly set forth the consequences which will result from one or more end‑users not being able to obtain sufficient product. The following are examples of consequences which could result from one or more end‑users not being able to obtain sufficient products.  Such examples of consequence as filed by the applicant may include, but are not limited to:

(1)           plant closings,

(2)           employee lay‑offs,

(3)           inability to harvest crops, or

(4)           curtailments of vital community services.

(b)  The state set‑aside may be used for:

(1)           end‑users and wholesale purchaser‑consumers who are unable to obtain adequate products and thereby sustain a hardship or emergency as defined in this Chapter,

(2)           wholesale purchaser‑resellers seeking an assignment to meet an emergency or hardship requirement on behalf of end‑users and wholesale purchaser‑consumers.

(c)  Allocations granted under the state set‑aside program must be used to supply wholesale purchaser‑consumers and end‑users described in the application for state set‑aside.

(d)  Who May Apply for State Set‑Aside.  Any wholesale‑purchaser consumer or wholesale‑purchaser reseller may apply for, or on behalf of, end‑users who are eligible under Paragraphs (b)(1) and (2) of this Rule.

(e)  First priority for set‑aside shall go to wholesale purchaser‑consumers and end‑users involved in the following activities (order of priority to be determined by the Energy Division after review of the circumstances then in effect):

(1)           agricultural production;

(2)           aviation ground support vehicles and equipment;

(3)           cargo, freight and mail hauling by truck and mail carries;

(4)           emergency services;

(5)           energy production;

(6)           health care services;

(7)           passenger transportation services;

(8)           sanitation services;

(9)           telecommunication services.

(f)  What Must Be Filed for State Set‑Aside.  All applications must be filed on a Form NC‑ED‑100, "Application to State for Exceptional Hardship Assistance."  Any information submitted on the above‑listed form which the applicant desires to be treated as confidential must be designated as such on the form and a second form (copy) must be filed deleting the information considered confidential by the applicant.

(g)  Where to File an Application for State Set‑Aside:

(1)           All applications [except those listed in Subparagraph (g) (2) of this Rule], shall be filed with the local County Emergency Management Coordinator and are processed through the North Carolina Department of Economic and Community Development, Energy Division, P.O. Box 25249, Raleigh, North Carolina  27611.

(2)           In the event the applicant's county of domicile does not have a County Emergency Management Coordinator assigned, applications may be filed directly with the Energy Division.  The Energy Division may, from time‑to‑time, designate other applicants, such as fire, police, rescue, and other essential government provided services, which will file applications for state set‑aside product directly with the Energy Division.

(h)  Request for Confidential Treatment

(1)           If any person filing a document with the local County Emergency Management Coordinator or the Energy Division claims that some or all the information contained in the document is exempt from the mandatory public disclosure requirement of the Freedom of Information Act [5 U.S.C. 552 (1970)], or is otherwise exempt by law from public disclosure, and if such person requests the local County Emergency Management Coordinator and the Energy Division not to disclose such information, such person shall file together with the document a second copy of the document from which has been deleted the information for which such person wishes to claim confidential treatment.  The person shall indicate in the original document that it is confidential or contains confidential information and may file a statement specifying the justification for non‑disclosure of the information for which confidential treatment is claimed.  If the person states that the information comes within the exception in 5 U.S.C. 552(b)(4) for trade secrets and commercial or financial information, such person shall include a statement specifying why such information is privileged or confidential.  If the person filing a document does not submit a second copy of the document with the confidential information deleted, the Energy Division may assume that there is no objection to public disclosure of the document in its entirety.

(2)           The Energy Division retains the right to make its own determination with regard to any claim of confidentiality.  Should the Energy Division deny a claim to confidentiality, the applicant may require the return of all copies of the disputed document(s) with notification to the applicant that the withdrawal of necessary data from consideration may tend to prejudice his application pending before the Energy Division.

(i)            Limitations on Filing an Application for State Set‑Aside.  Applications must be filed within the month the hardship exists and should be filed with the local County Emergency Management Coordinator not later than the 15th day of the month for which set‑aside product is requested.  The State Emergency Management System will ensure that applications are received by the Energy Division not later than ten calendar days before the end of the month.  In cases where additional information is requested, this information must be received by the local County Emergency Management Coordinator and forwarded to the Energy Division prior to five calendar days before the end of the month.  In cases of disapproval, the applicant will be notified within ten days as to why his application was not approved.

(j)  Release of set‑aside product.  The Energy Division, upon determining to its satisfaction that there will be little or no need for any set‑aside product not allocated, may release the remainder to the suppliers for distribution through their normal North Carolina distribution channels.

(k)  Supplier's Responsibilities:

(1)           Each prime supplier shall designate a representative to act for and in behalf of the prime supplier with respect to state set‑aside assignments.  The Energy Division may, to the maximum extent possible, consult with the prime supplier's representative prior to issuing any authorizing documents affecting the state set‑aside volumes to be provided by the supplier.

(2)           Suppliers shall provide the assigned amount of an allocated product to an applicant when presented with an authorizing document.  The authorizing document shall entitle the applicant to receive product from any convenient local distributor of the prime supplier from which the state set‑aside assignment has been made.

All prime suppliers shall supply products from their state set‑aside volume each month, as directed by the Energy Division, not to exceed the total state set‑aside volume for each product for that month.  That portion of a prime supplier's state set‑aside volume for a particular month which is not allocated by the Energy Division during that month, or which is not subject to an authorizing document issued no later than the last day of that month, shall become a part of the prime supplier's total supply for the subsequent month and shall be distributed according to the allocation procedure set forth in the allocation regulations.  The Energy Division may designate certain geographical areas within the state as suffering from an intra‑state supply imbalance.  When this occurs the Energy Division may order some, or all, of the prime suppliers servicing the geographical areas to release part, or all, of their set‑aside volume through their normal distribution systems to increase the fuel supply of their customers.  Orders issued pursuant to the set‑aside program shall be in writing and effective immediately upon presentation to the prime supplier's designated state representative.  Such order shall represent a call on the prime supplier's set‑aside volumes for the month of issuance irrespective of the fact that delivery cannot be made until the following month.

(l)  Procedures for Appeal:

(1)           Whenever the rights, duties, or privileges of the applicant or other substantially affected persons are being determined by the administration of the state set‑aside, within the Energy Division, through the granting or denial of a hardship application, such person(s) may, within ten days of service of the order, file a written request for an appointment with the Director of the Energy Division.  Such request(s) must be sent to the Director, Energy Division, North Carolina Department of Economic and Community Development, 430 N. Salisbury St., Raleigh, North Carolina 27611.

(2)           At the meeting, the aggrieved party may informally review the application and have answered questions concerning the application as may be permitted without violating a confidentiality claim.

(3)           The Director of the Energy Division shall have five working days from the date of the meeting to arrive at a decision.

(4)           All appeals from the decision of the Director of the Energy Division rest with the Secretary of the Department of Economic and Community Development or his designee as provided for under Chapter 1 of this Title.

(5)           At the time of a final decision by the Departmental secretary, the Departmental appeals procedures will have been deemed exhausted.  Any further appeals shall be made by petition to the Office of Administrative Hearings.

(6)           Any person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies may petition either the Superior Court of Wake County or the Superior Court of the county where the person resides.

(7)           Nothing in this Rule shall preclude an application from reapplying for an allocation in lieu of pursuing the appeals process.

 

History Note:        Filed as an Emergency Regulation Eff. March 6, 1978, for a period of 120 days to expire on

July 3, 1978;

Authority G.S. 143B‑429; 143B‑430; 143B‑431; 143B‑449;

Made Permanent Eff. July 3, 1978;

Amended Eff. May 1, 1991; May 15, 1979;

Transferred from 04 NCAC 12C .0106 Eff. May 15, 2007.

 

 

SUBCHAPTER 41b – GUARANTEED ENERGY SAVINGS CONTRACTS

 

SECTION .0100 – GENERAL PROVISIONS

 

01 ncac 41b .0101          RESPONSIBILITY

 

History Note:        Authority G.S. 143-64.17A(c1); 143-64.17F; 143-64.17H;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004.

01 NCAC 41B .0102          SCOPE

This Subchapter shall apply to State governmental units engaging in guaranteed energy savings contracts.

 

History Note:        Authority G.S. 143-64.17F; 143-64.17H; 143-64.17A (c1);

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 ncac 41b .0103          RULE MAKING AUTHORITY

 

History Note:        Authority G.S. 143-64.17A(c1); 143-64.17F; 143-64.17H;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004.

 

01 NCAC 41B .0104          DEFINITIONS

For the purposes of this Chapter, the following definitions apply:

(1)           Terms used herein that are defined in G.S. 143-64.17 shall have the same definitions as in G.S. 143-64.17.

(2)           "Agency."  A North Carolina State governmental unit that is soliciting, through a Request for Proposals (RFP), to enter into a guaranteed energy savings contract.

(3)           "Annual reconciliation statement." A report disclosing shortfalls or surplus between guaranteed energy and operational savings specified in the guaranteed energy savings contract and actual energy and operational savings incurred during each 12 month term commencing from the time that the energy conservation measures became fully operational.

(4)           "Contract."  A guaranteed energy savings contract.

(5)           "Offer."  The response to an RFP means the same as "bid" or "proposal."

(6)           "Investment grade audit" or "investment grade analysis."  A cost-benefit analysis of energy efficiency investments including a review of potential cost savings through operation and maintenance changes.

(7)           "Life-cycle cost analysis."  A method for estimating the total cost of an energy-using component or building over its useful life, including cost factors such as purchase price, or construction, renovation, or leasing costs, energy use, maintenance, interest, and inflation.

(8)           "Measurement and verification review."  An examination of energy measures installed under each contract, using methodology to measure the operation of energy-using systems before and after change, to verify the performance and savings of the installed equipment.

(9)           "Qualified provider."  A person, business, or organization experienced in the design, implementation, and installation of energy conservation measures and determined by the administering and contracting agencies to have the capability in all respects to fully perform the contract requirements.

 

History Note:        Authority G.S. 143-64.17F; 143-64.17H; 143-64.17A(c1);

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

SECTION .0200 – RESERVED FOR FUTURE CODIFICATION

 

SECTION .0300 – SOLICITATIONS

 

01 NCAC 41B .0301          NORTH CAROLINA PRODUCTS

A preference for North Carolina products and services provided by North Carolina residents pursuant to G.S. 143-59 shall apply to Guaranteed Energy Savings Contracts.  

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expires April 27, 2004;

Eff. August 1, 2004.

 

01 NCAC 41B .0302          SOLICITATION DOCUMENTS

(a)  Agencies shall solicit for guaranteed energy savings contracts through a Request for Proposal (RFP).

(b)  Agencies may use the RFP template available from the State Energy Office at MSC 1340, Raleigh, NC  27699-1340.

(c)  Solicitation documents shall include a Treasurer's estimated cost of financing.

(d)  Solicitation documents may allow for qualified provider or third party financing.

(e)  Solicitation documents may include a copy of the Facilities Condition Assessment Program (FCAP) report covering part or all of the facilities subject to the solicitation.

(f)  Solicitation documents shall state the evaluation criteria specified by G.S. 143-64.17A (b) and (d) as well as those in this Chapter.  The documents shall also state the criteria weighting defined by the agency for each particular project.  Weighting may change from one RFP to another RFP from an agency based upon the particular needs of that agency.

(g)  Solicitation documents shall stipulate that employee or time savings cannot be included in the offer unless a position is eliminated as a result of contract implementation.

(h)  Solicitation documents shall stipulate that the qualified provider is responsible for all costs incurred in preparing the initial proposal.

(i)  Solicitation documents shall stipulate that the contractor cannot include costs or allowances for contingencies in the contract.

(j)  Solicitation documents may include a three-year history of usage and billing for all utilities for the facilities subject to the proposal.

 

History Note:        Authority G.S. 143-64.17F; 143-64.17H;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0303          TREASURER'S COST ESTIMATE OF FINANCING

Agencies shall obtain an estimate of financing cost from the Director of Debt Management, Office of the Treasurer.  This estimate shall not be binding upon the State and is subject to change by the Office of the Treasurer.  The Office of the Treasurer may reject any potential contract if the actual cost of financing has exceeded the estimated cost of financing when the contract is submitted to the Office of the Treasurer for approval.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0304          GENERAL FUND PREFERENCE

(a)  The agency shall give preference to projects where the energy costs are paid through General Fund appropriations as compared to receipts, or federal funds, or other sources.  This preference shall be stipulated in the solicitation documents.

(b)  Solicitation documents shall include, when feasible, a breakdown of the source of funds for energy costs and shall direct the vendors to break down savings by source of funds if the aforementioned information is included in the solicitation document.

(c)  The Council of State may give preference to projects where the energy costs are paid through General Fund appropriations as compared to receipts, or federal funds, or other sources.

 

History Note:        Authority G.S. 143-64.17F; 143-64.17H;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0305          PROHIBITION ON FEDERAL FUNDS

The agency shall not solicit proposals for projects that include payment from federal funds unless the agency has obtained, and includes in both the solicitation and contract, documentation from the Federal Government or the Office of State Controller stating that the use of federal funds for payment of the contract is authorized.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0306          ADVERTISEMENT REQUIREMENTS

In addition to advertising requirements stated in G.S. 143-64.17A(a), agencies shall send a copy to the State Energy Office at MSC 1340, Raleigh, NC 27699 and shall include in the notification instructions on how to obtain the complete solicitation.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expires April 27, 2004;

Eff. August 1, 2004.

 

01 NCAC 41B .0307          CONFERENCES/SITE VISITS

Agencies may conduct vendor conferences and site visits before the Request for Proposals closing date.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expires April 27, 2004;

Eff. July 1, 2004.

 

SECTION .0400 - PRECERTIFICATION OF PROVIDERS

 

01 ncac 41b .0401          INFORMATION REQUIRED FOR PRECERTIFICATION

01 ncac 41b .0402          PRECERTIFICATION EVALUATION

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004.

 

SECTION .0400 - PRECERTIFICATION OF PROVIDERS

 

01 NCAC 41B .0401          INFORMATION REQUIRED FOR PRECERTIFICATION

Organizations may establish capability to provide services under performance contracts with state agencies by providing the following information to the State Energy Office:

(1)           past experience with energy performance contracting with a minimum of three years operation and completed installation of a minimum of three projects;

(2)           performance contracting experience and resumes of individuals expected to work on North Carolina projects including a minimum of one professional engineer licensed in North Carolina;

(3)           summary information, with client contact information, on all performance contracting projects in North Carolina during the previous five years listing only completed projects with at least one year in repayment;

(4)           summary information, with client contact information, on all performance contracts with any state government agencies in the United States with a maximum of five projects for each of the previous five years;

(5)           summary information, with client contact information, on any  performance contracting projects which resulted in the company paying energy costs to clients;

(6)           summary of the history and operation of the business and organization, including volume, bonding capacity and type of clients; and

(7)           financial statements of the performance contracting organization and (if applicable) parent company for the previous two years.

 

History Note:        Authority G.S. 143-64.17F

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expires April 27, 2004;

Eff. August 1, 2004.

 

01 NCAC 41B .0402          PRECERTIFICATION EVALUATION

Organizations shall present information required for precertification to the State Energy Office with a request for consideration for inclusion as a precertified entity.  The State Energy Office shall offer a precertification period for providers at three-year intervals.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expires April 27, 2004;

Eff. August 1, 2004.

 

01 NCAC 41B .0403          CONTESTING PRECERTIFICATION

(a)  If the State Energy Office denies an organization's request for precertification, a written appeal from the organization may be provided by the organization within 60 days after date of notification of the denial.  A letter appealing the decision may be filed with:

Director, State Energy Office

North Carolina Department of Administration

1830A Tillery Place MSC 1340

Raleigh, North Carolina 27699-1340

(b)  In the event that an organization wishes to contest the case further, contested case hearings are available as provided in G.S. 150B, and petitions for contested case hearings shall be filed in accordance with the provisions of that Chapter.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0404          PUBLISHED LIST OF PRECERTIFIED ENTITIES

Organizations precertified by the State Energy Office to provide services under performance contracts may be included on a list available on the Website of the State Energy Office at http://www.energync.net.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0405          PRECERTIFIED ENTITY RESTRICTION

Only precertified organizations may enter into a performance contract with a state governmental agency.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

SECTION .0500 - EVALUATION, SELECTION, AND AWARD

 

01 NCAC 41B .0501          LATE OFFERS, MODIFICATIONS, OR WITHDRAWALS

No late offer, late modification, or late withdrawal shall be considered unless received before contract award, and the offer, modification, or withdrawal would have been timely but for the action or inaction of agency personnel.  The offeror shall have his offer delivered on time, regardless of the mode of delivery used, including the U.S. Postal Service or any other delivery services available.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0502          EXTENSION OF ACCEPTANCE TIME

Companies may be requested to extend the time offered for the acceptance of offers.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expires April 27, 2004;

Eff. August 1, 2004.

 

01 NCAC 41B .0503          ERROR/CLARIFICATION

When an offer contains an obvious error or otherwise where an error is suspected, the circumstances may be investigated and then may be considered and acted upon.  Any action taken shall not prejudice the rights of the public or other offering companies.  Where offers are submitted substantially in accordance with the request for response document but are not entirely clear as to intent or to some particular fact or where there are other ambiguities, clarification may be sought and accepted provided that, in doing so, no change is permitted in prices.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0504          BASIS FOR REJECTION

In soliciting offers, any and all offers received may be rejected.  Bases for rejection shall include, but are not limited to, the offer being deemed unsatisfactory as to the quantity, quality, delivery, price or service offered; the offer not complying with conditions in the RFP or with the intent of the proposed contract; lack of competitiveness by reason of collusion; error(s) in specifications or indication that revision(s) would be to the state's advantage; cancellation of or changes in the intended project or other determination that the proposed requirement is no longer needed; limitation or lack of available funds; circumstances which prevent determination of the lowest responsible or most advantageous offer; or any determination that rejection would be to the best interest of the state.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expires April 27, 2004;

Eff. August 1, 2004.

 

01 NCAC 41B .0505          PUBLIC RECORD

Action in rejecting offers shall be made a matter of record.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0506          RECIPROCAL PREFERENCE

(a)  01 NCAC 05B .1522(a), (b), (c), (d), and (g) shall apply to this Subchapter.

(b)  If the use of the reciprocal preference changes which bidder is the low bidder, the agency may waive the use of the reciprocal preference, after consultation with the Council of State, and after taking into consideration such factors as, competition, price, product origination, and available resources.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0507          PROPOSAL EVALUATION

(a)  Evaluation criteria shall include those specified by G.S. 143-64.17A(b) and (d).

(b)  Evaluation criteria for the proposal shall also include the following:

(1)           Life cycle cost analysis as defined in G.S. 143-64.15.

(2)           Certification by a registered engineer that the measurement and verification protocol presented in the proposal is capable of measuring actual or projected savings.

(3)           A process of annual third party measurement and verification of savings in accordance with the pre-defined and certified protocol found in 01 NCAC 41B .0510.  The cost of this process shall be included in the total cost of the contract.

(4)           The total cost based on Office of Treasurer cost of financing estimate and cost based on Qualified Provider or third party financing in the response.

 

History Note:        Authority G.S. 143-64.17F; 143-64.17H;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0508          PRE-AWARD REPORTS

Before the award of a guaranteed energy savings contract, the qualified provider shall provide a report, as part of its proposal, which shall be available for public inspection, summarizing estimates of all costs of installation, maintenance, repairs and debt service and estimates of the amounts by which energy or operating costs will be reduced.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 ncac 41b .0509          TABULATIONS AND ABSTRACTS

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004.

 

01 NCAC 41B .0510          MEASUREMENT AND VERIFICATION

Any guaranteed energy and operational savings shall be determined by using one of the measurement and verification methodologies listed in the United States Department of Energy's "Measurement and Verification Guideline for Energy Savings Performance Contracting," the "International Performance Measurement and Verification Protocol," or "ASHRAE 14-2002."  If due to existing data limitations or the nonconformance of specific project characteristics, none of the measurement and verification methodologies listed above is sufficient for measuring guaranteed savings, the qualified provider shall develop an alternate method that is compatible with one of the three and mutually agreeable with the agency.

 

History Note:        Authority G.S. 143-64.17F; 143-64.17H;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0511          CONTRACT EXECUTION

Contract execution by the successful companies shall occur upon contract award and before the agency sends the documents to the Office of State Budget and Management.  Contracts shall stipulate that the execution is contingent upon approval and financing.  Upon execution, the agency shall forward the documents to the Capital Improvement Section of the Office of State Budget and Management with a copy to the Director of the State Energy Office.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

SECTION .0600 – RESERVED FOR FUTURE CODIFICATION

 

SECTION .0700 – APPROVAL

 

01 NCAC 41B .0701          OFFICE OF STATE BUDGET AND MANAGEMENT CERTIFICATION

The Office of State Budget and Management (OSBM) shall certify, within 10 business days of receipt, expected availability of resources and set up appropriate reserve accounts or other accounting procedures to transfer funds from the agency to the Office of the Treasurer for payment.  Upon certification, the OSBM shall forward the documentation to the Office of the Treasurer's Director of Debt Management.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0702          OFFICE OF THE TREASURER APPROVAL

The Office of the Treasurer shall, within 10 business days of receipt, review the documentation and select the desired financing option.  Upon review and selection, the Treasurer shall forward the documentation to the Secretary of the Department of Administration.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

SECTION .0800 – RESERVED FOR FUTURE CODIFICATION

 

SECTION .0900 - POST-APPROVAL PROCEDURES

 

01 NCAC 41B .0901          ANNUAL REPORTS AND INSPECTIONS

(a)  The State Energy Office may inspect any and all documentation and facilities it deems appropriate at the agency to determine the effectiveness of the guaranteed energy savings contract and to provide information to the Council of State and the General Assembly on the effectiveness of the contract.

(b)  Agencies failing to provide documentation to the State Energy Office as requested, shall be reported to the Council of State and shall be prohibited from engaging in further energy savings contracts until the deficient documentation is provided to the State Energy Office.

(c)  Requested information, by definition, includes timely submission of the "Annual Report of Savings Report" available from the State Energy Office at 1340 MSC, Raleigh, NC 27699-1340.

 

History Note:        Authority G.S. 143-64.17F; 143-64.17H;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

 

 

SUBCHAPTER 41C - ENERGY IMPROVEMENT LOAN PROGRAM

 

SECTION .0100 - GENERAL PROVISIONS

 

01 NCAC 41C .0101          DEFINITIONS

For the purposes of this Chapter, the following definitions apply:

(1)           "Allowable Costs," origination cost, up front cost, letter of credit fee (first year), engineering design fee, and implementation of eligible energy conservation measure.  All allowable costs to be included in the loan must be incurred after the execution date of the Letter of Intent;

(2)           "Applicant," any commercial or industrial business applying for a loan under the Program;

(3)           "Btu," British thermal unit; the amount of heat required to raise the temperature of one pound of water one degree Fahrenheit at or near 39.2 degrees F;

(4)           "Btu/sq. ft/yr.," Btu per square foot per year; an index of building energy use, calculated by dividing the total annual energy use of a building by its square foot area;

(5)           "Commercial or industrial business," a commercial or industrial concern which provides goods or services for profit from a location in North Carolina;

(6)           "Credit worthiness", ability of applicant to meet lending institution's standard lending criteria;

(7)           "DOA Fiscal Department," the Fiscal Management Department, N. C. Department of Administration;

(8)           "Energy conservation measure," a commercially available energy efficient device, technique or technology, designed to reduce energy consumption, peak demand, or as utility costs at an existing or proposed commercial or industrial business;

(9)           "Letter of Intent," written notification of the intent of the Department to originate the Loan, subject to the conditions and limitations of the Program;

(10)         "Payback," the total energy conservation measure costs (including installation, equipment and engineering design) divided by the annual estimated utility cost savings;

(11)         "Program," the Energy Improvement Loan Program;

(12)         "Recycling Projects," projects which extract and reprocess energy, water and materials for reuse in buildings, transportation systems, environmental management, consumer products and/or outreach;

(13)         "Renewables," solar, wind, biomass or hydropower resources;

(14)         "Repayment Schedule," a schedule of periodic payments based upon simple payback as projected in the Technical Analysis rounded to the next quarter. Prepayments shall reduce the term of the loan with periodic payments remaining unchanged;

(15)         "State Energy Office," the State Energy Office, N. C. Department of Administration;

(16)         "Technical Analysis ("TA")", a report that identifies and analyzes cost‑effective capital energy conservation improvements that the applicant wishes to implement.  The Technical Analysis need address only the specific energy conservation measures for which the loan is being requested.  Each energy conservation measure analyzed shall be the subject of a single recommendation incorporating technical and economic analyses of the measure, considering building, process and equipment characteristics and energy use patterns pertinent to the improvement.  The Technical Analysis must include the estimated cost of the implementation, a construction schedule, and expected energy savings;

(17)         "Technical analyst," a person with experience in energy conservation to conduct technical analysis for the purposes of this article;

(18)         "Third Party Technical Analyst", a technical analysis performed by an agency or someone who has neither financial interest in the commercial business, non-profit institution, local government institution, or industrial business nor in the sale and installation of any proposed energy conservation measure; however, the Technical Analyst is permitted to provide construction management services to an approved applicant;

(19)         "Unallowable costs," costs associated with Technical Analysis preparation, costs associated with pre‑application conference, costs incurred prior to execution date of Letter of Intent, costs associated with loan application (i.e., consultation fees, Technical Analysis modifications); and

(20)         "Up front cost," the prepaid charge, if any, at a rate to be determined by the DOA Fiscal Department sufficient to cover the costs of administering and servicing the program.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. September 1, 2004.

SECTION .0200 – LOANS

 

01 NCAC 41C .0201          ELIGIBILITY

The following classes of applicants are eligible to apply for loans:

(1)           A local government organization, nonprofit organization, commercial or industrial business located in North Carolina that owns the existing building or site of planned construction where the energy conservation measures will be made, or which has a lease or management agreement for such proposed building site or building extending beyond the term of the loan; provided, however, that where the owner of the building authorizes the approved energy conservation measures, the lease or management agreement need not extend beyond the term of the loan.

(2)           A Nonprofit organization, commercial or industrial business relocating to North Carolina that owns the site of planned construction where the energy conservation measures will be made, or which has a lease or management agreement for such proposed building or building site extending beyond the term of the loan; provided, however, that where the owner of the building or building site authorizes the approved energy conservation measures, the lease or management agreement need not extend beyond the term of the loan.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. September 1, 2004.

 

01 NCAC 41C .0202          CRITERIA FOR ENERGY CONSERVATION LOANS

Energy conservation projects for which the loans are desired must meet the following criteria:

(1)           The building site where the measures are to be installed must be in North Carolina;

(2)           The project must demonstrate the ability to conserve energy through efficient energy use or the utilization of renewable energy resources which results in energy savings based upon a net reduction in the use of nonrenewable resources;

(3)           A maximum total loan indebtedness of five hundred thousand dollars ($500,000) for a single local government organization, nonprofit organizations, commercial business or industrial business at any given time;

(4)           The project must utilize commercially available technologies.

(5)           Experimental or research‑related technologies are not eligible for funding;

(6)           Each energy conservation measure shall address energy efficiency;

(7)           The installation of the energy conservation measure may, at the discretion of the applicant, commence after DOA Fiscal Office issues the Letter of Intent; however, the applicant places itself at risk and is reminded that origination of the Loan is subject to the conditions and limitations of the Program;

(8)           The energy conservation measure must demonstrate a simple payback period of 10 years or less;

(9)           Each energy conservation measure must have a useful life at least equal to its estimated simple payback;

(10)         Eligible energy conservation measures shall fall under one of the following categories:

(a)           lighting systems;

(b)           heating, ventilation, and air conditioning systems;

(c)           electrical distribution systems (motors, variable speed drives, fans, etc.);

(d)           energy management systems;

(e)           boiler efficiency systems;

(f)            energy recovery systems, including on‑site generation of electricity;

(g)           alternate/renewable energy systems;

(h)           building envelope (doors, windows, roofs, etc.);

(i)            industrial process or fabrication systems;

(j)            load management systems;

(k)           fuel conversion projects provided that the simple payback calculations shall be based on the cost of the current fuel;

(l)            other cost‑effective demand or rate‑based improvements; and

(m)          recycling projects;

(11)         The energy conservation measure shall meet applicable state air and water quality standards; and

(12)         The energy conservation measure shall be based on a current Technical Analysis report as defined in Rule .0101 of this Subchapter.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. September 1, 2004.

 

01 NCAC 41C .0203          CONDITIONS AND LIMITATIONS

Loans are made subject to the following conditions and limitations:

(1)           Interest shall be charged at the rate of three percent per annum and one percent for renewable and recycling projects;

(2)           The amount of the loan shall not exceed allowable costs;

(3)           The repayment schedule shall be based on the estimated payback as shown in the Technical Analysis report;

(4)           Payments shall be made at a frequency of not less than once per month;

(5)           The total amount of the loan, or any portion thereof may be repaid at any time without penalty;

(6)           Rebates received through other program offerings of the State Energy Office for projects undertaken from loan proceeds shall be used to reduce the amount of principal;

(7)           The borrower shall warrant that all work or construction done with the proceeds of a loan under this program shall comply with all building codes and standards;

(8)           Project implementation shall begin within 90 days after approval of the application.  If delays are encountered following loan closing, any arbitrage profits will be repaid to the revolving fund;

(9)           Loans shall not be used to replace an existing loan;

(10)         Loan payments or drafts shall be sent or delivered to the DOA Fiscal Department at its current address as stated in the loan agreement;

(11)         A letter of credit from a bank approved to do business in North Carolina shall secure the loan against non‑payment and also serve as a quarterly drafting mechanism for loan repayment from the bank; and

(12)         No loans shall be forgiven.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. August 1, 2004.

 

01 NCAC 41C .0204          PRE-APPLICATION CONFERENCE

(a)  At least one week prior to submission of a project application the State Energy Office shall convene a pre‑application conference by email, telephone or office visit. 

(b)  Parties present at the pre‑application conference shall include representatives from the DOA Fiscal Division, the State Energy Office, the applicant or the applicant's engineer.

(c)  The purpose of the conference is to help ensure the application procedures are understood and that the application and technical analysis, when accepted, shall be complete.

(d)  The applicant shall offer verbal, and if available, written project descriptions. 

(e)  The applicant shall address environmental impact of the project. 

(f)  When final, copies of water and air permits shall be provided by the applicant in addition to the technical analysis.  

(g)  Another purpose of this conference shall be to reach an understanding among all parties that the project is of the type that may be considered for approval.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. August 1, 2004.

 

01 NCAC 41C .0205          APPLICATION PROCEDURES

The applicant shall complete an application on a form provided by the DOA Fiscal Department.  The application shall contain the following information:

(1)           The name and complete mailing address, including the county, of the applicant;

(2)           The address, building name (where applicable) or site description including photographs to locate where the energy conservation measure(s) will be installed;

(3)           The name of a contact person, including title and telephone number;

(4)           The amount of the loan requested;

(5)           The estimated dates of start and completion of the project;

(6)           A copy of the Technical Analysis approved by the State Energy Office as fulfilling the energy aspects of the proposed energy conservation measures;

(7)           Identification of the commercial lending institution that is providing letter of credit, depository and repayment services;

(8)           All applicants shall provide financial data on which to base a determination of the applicant's creditworthiness.  Documentation shall include the following:

(a)           Financial statements from the last five years; and

(b)           Profit and loss statements.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. August 1, 2004.

 

01 NCAC 41C .0206          APPLICATION REVIEW

Application review shall consist of the following phases:

(1)           The administrative review shall be conducted by the DOA Fiscal Department and may include any data or information needed to complete that review.

(2)           The technical review shall be conducted of the Technical Analysis by the State Energy Office.

(3)           The technical review may occur concurrently with application submittal to the DOA Fiscal Department. 

(4)           The technical review shall consider each energy conservation measure for which funding is requested and shall include the accuracy and sufficiency of calculations, engineering principles considered, and labor and material costs relative to the current local market. 

(5)           Following acceptance, the State Energy Office will approve those Energy Conservation Measures that were found to meet the energy aspects of the Program. 

(6)           No application shall be accepted for consideration by the DOA Fiscal Department without the acceptance of the Technical Analysis by the State Energy Office.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. August 1, 2004.

 

01 NCAC 41C .0207          LOAN APPROVAL

Applications shall be considered for loan approval upon completion of the administrative and technical review. Approval shall be based upon the following:

(1)           Results of the administrative and technical review documenting energy efficiency; and

(2)           Creditworthiness of the applicant.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. August 1, 2004.

 

01 NCAC 41C .0208          LOAN AGREEMENT AND PROMISSORY NOTE

After an application for a loan is approved, a loan agreement shall be executed between the DOA Fiscal Department and the borrower.  The loan agreement shall include a promissory note and other necessary documents including, but not limited to, security agreements, mortgages, recordings; and shall contain the covenants and representations as to the borrower's qualification to borrow for the loan, intended use of the loan proceeds, conditions under which the loan will be repaid and events requiring the acceleration, rights and responsibilities of the parties and the terms and conditions of the loan. The requirements to secure the loan shall be included in the loan agreement. Loans shall be secured through bank Letter of Credit.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. August 1, 2004.

 

01 NCAC 41C .0209          REPORTS

Reports must be submitted as follows:

(1)           Progress reports must be submitted quarterly to the State Energy Office during the period implementation or construction is in progress and must include a description of the current status, any problems, and forecast of expectations or deviations from the planned schedule; and

(2)           A final report certified by the technical analyst must be submitted to the State Energy Office upon completion of the project. The report must include a description of the measures implemented; the actual cost of each measure, and the adjusted estimated payback, based on the actual cost.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. September 1, 2004.

 

01 NCAC 41C .0210          MONITORING

The DOA Fiscal Department shall monitor the use of the funds under this program through continuous review of reports.  The State Energy Office shall monitor those buildings/projects where the energy conservation projects are in progress to verify the installation of the energy conservation measures conforms to the original Technical Analysis. At least one visit shall be made to the site of each energy conservation project during the life of the loan.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. August 1, 2004.

 

01 NCAC 41C .0211          DEFAULT

If the borrower violates any of the terms of the loan agreement, the DOA Fiscal Department may place the borrower in default. Borrowers determined to be in default shall be notified by certified mail and the letter of credit provided as security shall be used to protect the interest of the State of North Carolina.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. August 1, 2004.

 

SECTION .0300 - TECHNICAL ANALYSIS

 

01 NCAC 41C .0301          TECHNICAL ANALYSIS REQUIRED

An application for an energy conservation loan must be accompanied by a Technical Analysis that has been conducted by a third party technical analyst and certified by the State Energy Office as fulfilling the energy aspects of the Program.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. September 1, 2004.

 

01 NCAC 41C .0302          TECHNICAL ANAYLYST QUALIFICATIONS

To be qualified to conduct the Technical Analysis required by this article, a technical analyst must meet the following requirements:

(1)           Have experience in energy conservation in building construction, mechanical systems or manufacturing processes;

(2)           Have neither financial interest in the commercial business, non-profit institution, local government institution, or industrial business nor in the sale and installation of any proposed energy conservation measure; however, the Technical Analyst is permitted to provide construction management services to an approved applicant.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. September 1, 2004.

 

01 NCAC 41C .0303          REPORT REQUIRED

A qualified third party technical analyst shall submit three copies of the results of a Technical Analysis in writing on a form provided by the State Energy Office.  The report must include the following:

(1)           A description of facility characteristics and energy data, including the operational characteristics of the energy‑using systems;

(2)           A description and engineering analysis of each identified energy conservation measure, including the following:

(a)           An estimate of the cost of design, acquisition, and installation, including monitoring equipment to assess the performance of the measure discussing assumptions as necessary;

(b)           An estimate of the annual energy and energy cost savings by fuel type using generally accepted engineering standards and practices, including all formulae, data and assumptions clearly presented in arriving at the estimate;

(c)           The results of a combustion efficiency test, if furnace or boiler modifications or replacements are being implemented;

(d)           The simple payback period of each energy conservation measure, calculated by dividing the estimated total cost of the measure by the estimated annual energy cost saving;

(e)           A proposed construction schedule for each energy conservation measure; and

(f)            The payback period of each energy conservation measure;

(3)           The energy use and cost data for each fuel type used for the prior 12‑month period, by month or in accordance with the usual billing cycle;

(4)           An outline of qualifications of the analyst documenting previous experience in energy conservation in building construction, mechanical systems, and/or manufacturing processes.

 

History Note:        Authority G.S. 143-345.18(b)(2a); 143-345.18(b)(3);

Eff. September 1, 2004.

 

 

 

SUBCHAPTER 41D - ENERGY POLICY ACT CREDIT BANKING AND SELLING PROGRAM

 

SECTION .0100 - GENERAL PROVISIONS

 

01 NCAC 41D .0101          PURPOSE AND ORGANIZATION

(a)  Pursuant to G.S. 143-58.4 the State Energy Office has established a credit banking and selling program to allow State departments, institutions, and agencies to use monies generated by the sale of EPAct credits to purchase alternative fuel, develop related refueling infrastructure and purchase alternative fuel vehicles.

(b)  Pursuant to G.S. 143-58.5, the State Energy Office has established an Alternative Fuel Revolving Fund generated from the sale of EPAct credits. These funds may to be used to purchase alternative fuel, develop related refueling infrastructure and purchase alternative fuel vehicles for use by State departments, institutions, and agencies.

 

History Note:        Authority G.S. 143-58.4; 143-58.5;

Eff. May 1, 2007.

01 NCAC 41D .0102          DEFINITIONS

For the purposes of this Chapter, the following definitions apply:

(1)           "AFV" means the same as defined in 143-58.4.

(2)           "Alternative fuel" means the same as defined in 143-58.4.

(3)           "Biodiesel Fuel Use Credit" means an EPAct credit given by the U.S. DOE for each 450 gallons of pure biodiesel purchased for use in blends of 20% or higher. No credit is granted for the petroleum portion of biodiesel fuel blends.

(4)           "B20" means the same as defined in 143-58.4.

(5)           "Department" means the Department of Administration.

(6)           "Energy Policy Act" means the same as defined in 143-58.4. 

(7)           "EPAct credit" means the same as defined in 143-58.4.

(8)           "EPC" means the Energy Policy Council, created pursuant to G.S. Chapter 113B, Article 1.

(9)           "E85" means the same as defined in 143-58.4.

(10)         "FFV" means a flexible fuel vehicle that is capable of operating on both E85 and gasoline.

(11)         "Incremental fuel cost" means the same as defined in 143-58.4.

(12)         "Incremental vehicle cost" means the same as defined in 143-58.4.difference in cost between an AFV and conventional vehicle of the same make and model. For vehicles with no comparable conventional model, incremental vehicle cost means the generally accepted difference in cost between an AFV and a similar conventional model.

(13)         "LDV" means a light duty vehicle that has less than an 8,500 lb gross vehicle weight rating (GVWR).

(14)         "NC Alternative Fuel Consortium" means a voluntary group of state agencies, institutions and interested entities that meet at least quarterly and is hosted by the State Energy Office to coordinate alternative fuel and petroleum displacement activities in North Carolina.

(15)         "OEM" means original equipment manufacturer.

(16)         "SEO" means the State Energy Office.

(17)         "U.S. DOE" means the United States Department of Energy.

(18)         "U.S. EPA" means the United States Environmental Protection Agency.

 

History Note:        Authority G.S. 143-58.4; 143-58.5;

Eff. May 1, 2007.

 

SECTION .0200 - CREDIT BANKING AND SELLING PROGRAM PROVISIONS

 

01 NCAC 41D .0201          BANKING

(a)  EPActs credits shall be accrued and banked according to the following:

(1)           The U.S. DOE Alternative Fuel Transportation Program (10 CFR Part 490) requires that 75% of LDVs acquired by state fleets shall be FFVs, compressed natural gas vehicles, propane vehicles or electric vehicles;

(2)           One credit is earned for each OEM or EPA certified retrofit FFV, compressed natural gas, propane or electric vehicle purchased;

(3)           Credits that exceed the annual minimum state AFV acquisition requirements may be banked through the U.S. DOE Office of Freedom Car and Vehicle Technologies Program to meet future year requirements or traded;

(4)           State fleets can earn Biodiesel Fuel Use Credits to meet 50% of their annual AFV acquisition requirements by purchasing and using biodiesel; and

(5)           Biodiesel Fuel Use Credits cannot be traded or banked.

(b)  Credits are determined by state agencies in cooperation with the State Energy Office in the following manner:

(1)           Each year by December 1st every State department, institution and agency subject to EPAct requirements shall provide the State Energy Office with the types of vehicles purchased, the vehicle identification numbers and the dates of purchase to determine the number of EPAct credits generated by the State; and

(2)           The SEO shall submit an annual EPAct credit report to the U.S. DOE by December 31st.

(c)  The following provisions shall be used in determining credits:

(1)           EPAct credits eligible for sale include FFVs if the FFVs are operating on E85;

(2)           EPAct credits generated through the use of B20 are not eligible for sale or transfer, however, they shall be used by the State to meet 50% of Energy Policy Act requirements; and

(3)           State agencies and institutions that purchase FFVs shall record the use of E85 for the FFVs.

 

History Note:        Authority G.S. 143-58.4; 143-58.5;

Eff. May 1, 2007.

 

01 NCAC 41D .0202          Selling

(a)  The State Energy Office shall form a Credit Selling Work Group to determine the number of excess credits to be sold as follows:

(1)           The Credit Selling Work Group shall consist of:

(A)          Department of Administration Motor Fleet Management designee;

(B)          Department of Transportation Equipment Unit designee;

(C)          State Energy Office designee; and

(D)          Designees of other state agencies and institutions that generate EPAct credits; and

(2)           The Credit Selling Work Group shall determine the asking price for credits.

(b)  The State Energy Office shall obtain approval from the Energy Policy Council prior to selling EPAct credits.

(c)  The State Energy Office shall sell EPAct credits in accordance with the provisions of the Energy Policy Act.

 

History Note:        Authority G.S. 143-58.4; 143-58.5;

Eff. May 1, 2007.

 

SECTION .0300 - PROCEEDS AND DISTRIBTUTION

 

01 NCAC 41D .0301          Proceeds and distribution

(a)  Funds generated by the sale or transfer of EPAct credits by the Department shall be deposited into the Alternative Fuel Revolving Fund.

(b)  The following shall be undertaken to determine the distribution of proceeds from the Alternative Fuel Revolving Fund:

(1)           The State Energy Office shall annually inform the NC Alternative Fuel Consortium of the amount of revenue accrued to the Alternative Fuel Revolving Fund and the percentage of these funds that were generated by participating state agencies, institutions or entities;

(2)           The State Energy Office shall organize meetings of the NC Alternative Fuel Consortium and the Credit Selling Work Group to discuss and prioritize distribution of funds;

(3)           Fund distribution shall be prioritized based on maximizing benefits to the State for the purchase of alternative fuel, related refueling infrastructure and AFV purchases;

(4)           An annual plan for the dispersion of Alternative Fuel Revolving Funds shall be prepared by the State Energy Office based on recommendations of the Alternative Fuels Consortium and the Credit Selling Work Group; and

(5)           The Energy Policy Council shall review and approve the annual plan.

 

History Note:        Authority G.S. 143-58.4; 143-58.5;

Eff. May 1, 2007.

 

01 NCAC 41D .0302          Fund disbursements

All state departments, institutions and agencies are eligible to utilize Alternative Fuel Revolving Funds.

 

History Note:        Authority G.S. 143-58.4; 143-58.5;

Eff. May 1, 2007.

 

SECTION .0400 - REPORTS

 

01 NCAC 41D .0401          Reports

(a)  Progress reports shall be submitted biannually by State departments, agencies, and institutions that receive funds from the Alternative Fuel Revolving Fund.

(b)  The progress report shall include a description of the current project, number of gallons of alternative fuel or vehicles purchased, challenges and successes, and forecast of expectation or deviation from the planned schedule.

 

History Note:        Authority G.S. 143-58.4; 143-58.5;

Eff. May 1, 2007.

 

 

 

SUBCHAPTER 41E – ENERGY POLICY COUNCIL

 

01 NCAC 41E .0101          FUNCTIONS

The Energy Policy Council serves as the central energy policy planning body of the state.  Its responsibilities are:  to advise and make recommendations on energy policy to the Governor and the General Assembly; to conduct an ongoing assessment of the opportunities and constraints presented by various uses of all forms of energy and to encourage the efficient use of all such forms in a manner consistent with state energy policy; to coordinate all state government research, education and management programs relating to energy matters; and continually educate and inform the general public regarding energy matters.

 

History Note:        Filed as an Emergency Regulation Eff. March 6, 1978, for a period of 120 days to expire on

July 3, 1978;

Statutory Authority G.S. 113B‑2; 143B‑429; 143B‑430; 143B‑431; 143B‑449;

Made Permanent Eff. July 3, 1978;

Transferred from 04 NCAC 12E .0103 Eff. May 15, 2007.