Untitled California Attorney General Opinion ( 1992 )


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  •                       TO BE PUBLISHED IN THE OFFICIAL REPORTS
    OFFICE OF THE ATTORNEY GENERAL
    State of California
    DANIEL E. LUNGREN
    Attorney General
    ______________________________________
    OPINION             :
    :          No. 91-1203
    of                 :
    :          AUGUST 18, 1992
    DANIEL E. LUNGREN            :
    Attorney General          :
    :
    GREGORY L. GONOT            :
    Deputy Attorney General      :
    :
    ______________________________________________________________________________
    RICHARD T. CONRAD, EXECUTIVE DIRECTOR OF THE CALIFORNIA
    BUILDING STANDARDS COMMISSION, has requested an opinion on the following question:
    Is the energy conservation manual developed by the California Energy Commission
    subject to the approval of the Building Standards Commission?
    CONCLUSION
    The energy conservation manual developed by the California Energy Commission
    is not subject to the approval of the Building Standards Commission.
    ANALYSIS
    The duties of the California Energy Commission ("Commission") include prescribing,
    by regulation, standards designed to reduce wasteful, uneconomic, inefficient, or unnecessary
    consumption of energy. (Public Resources Code, § 25402.) The standards are contained in an
    energy conservation manual. Section 25402.1, subdivision (e) specifically requires the Commission
    to:
    "Certify, not later than 180 days after approval of the standards by the State
    Building Standards Commission, an energy conservation manual for use by
    designers, builders and contractors of residential and nonresidential buildings. . . .
    The manual shall contain, but not be limited to, the following:
    "(1) The standards for energy conservation established by the commission.
    "(2) Forms, charts, tables, and other data to assist designers and builders in
    meeting the standards.
    1.                                         91-1203
    "(3) Design suggestions for meeting or exceeding the standards.
    "(4) Any other information which the commission finds will assist persons
    in conforming to the standards.
    "(5) Instructions for use of the computer program for calculating energy
    consumption in residential and nonresidential buildings.
    "(6) The prescriptive method for use as an alternative to the computer
    program."
    The Commission's standards contained in the manual that have been approved by the State Building
    Standards Commission ("BSC") are "building standards." Public Resources Code section 25402.2
    provides:
    "Any standard adopted by the commission pursuant to Sections 25402 and
    25402.1 which is a building standard as defined in Section 25488.5 shall be
    submitted to the State Building Standards Commission for approval pursuant to, and
    is governed by, the provisions of the State Building Standards Law, Part 2.5
    (commencing with Section 18091) of Division 13 of the Health and Safety Code and
    Section 25216.4 of this code. Such building standards adopted by the commission
    and published in the State Building Standards Code shall be enforced as provided in
    Sections 25402 and 25402.1."
    Public Resources Code section 25488.5 in turn adopts the definition of "building standard" that is
    set forth in Health and Safety Code section 18909,1 which reads in part:
    "(a) ``Building standard' means any rule, regulation, order, or other
    requirement, including any amendment or repeal of that requirement, which
    specifically regulates, requires, or forbids the method of use, properties,
    performance, or types of materials used in the construction, alteration, improvement,
    repair, or rehabilitation of a building, structure, factory-built housing, or other
    improvement to real property, including fixtures therein, and as determined by the
    commission.
    "(b) Except as provided in subdivision (d), ``building standard' includes
    architectural and design functions of a building or structure, including, but not
    limited to, number and location of doors, windows, and other openings, stress or
    loading characteristics of materials, and methods of fabrication, clearances, and other
    functions.
    "(c) ``Building standard' does not include a regulation, rule, or order relating
    to the enforcement of a building standard, including the penalties for failure to
    comply with a building standard."
    The question presented for analysis is whether the Commission must submit its
    energy conservation manual to the BSC for approval before the manual may be distributed to the
    general public. We conclude that the manual is not subject to such review and approval.
    1
    All unidentified section references hereafter are to the Health and Safety Code.
    2.                                          91-1203
    The duties of the BSC are set forth in section 18931. The statute provides:
    "The commission shall perform the following:
    "(a) In accordance with Section 18930 and within 120 days from the date of
    receipt of adopted standards, review the standards of adopting agencies in order to
    approve, return for amendment with recommended changes, or reject building
    standards or administrative regulations that apply directly to the implementation or
    enforcement of building standards submitted to the commission for its approval.
    When building standards are returned for amendment or rejected, the commission
    shall inform the adopting agency of the specific reasons for the recommended
    changes or rejection, citing the criteria required under Section 18930. When
    standards or administrative regulations that apply directly to the implementation or
    enforcement of building standards are not acted upon by the commission within 120
    days, the standards shall be approved, including codification and publication in the
    California Building Standards Code, without further review and without return or
    rejection by the commission.
    "(b) Codify, including publish, all building standards or administrative
    regulations that apply directly to the implementation or enforcement of building
    standards of state agencies and statutes defining building standards into one
    California Building Standards Code.
    "(c) Resolve conflicts, duplication, and overlap in building standards or
    administrative regulations that apply directly to the implementation or enforcement
    of building standards in the code.
    "(d) Ensure consistency in nomenclature and format in the code.
    "(e) In accordance with Section 18945, hear appeals resulting from the
    administration of state building standards.
    "(f) Adopt any procedural regulations which it deems necessary to
    administer this part."2
    2
    Under subdivision (a) of section 18929, the BSC is also responsible for developing regulations
    which will ensure:
    "(1) Adequate public participation in the development of building standards
    prior to submittal to the commission for adoption and approval.
    "(2) Adequate notice to the public in written form of the compiled building
    standards and their justification.
    "(3) Adequate technical review of proposed building standards and
    accompanying justification by advisory bodies appointed by the commission.
    "(4) Adequate time for review of recommendations by advisory bodies prior
    to action by the commission.
    "(5) The procedures shall meet the intent of the Administrative Procedure
    3.                                        91-1203
    At the time an adopting state agency submits its proposed building standards or
    administrative regulations to the BSC,3 it must provide the BSC with an analysis which justifies the
    approval thereof in terms of a number of statutorily prescribed criteria. (See § 18930, subd. (a).)
    After the building standards and related administrative regulations are approved by the BSC, they
    are to be incorporated into the California Building Standards Code, title 24 of the California Code
    of Regulations. (§ 18940.)
    To make it clear that the Commission must gain approval of the BSC for all its
    building standards, the Legislature added section 25216.4 to the Public Resources Code:
    "Notwithstanding any other provision of this code or of law and except as
    provided in the State Building Standards Law, Part 2.5 (commencing with Section
    18901) of Division 13 of the Health and Safety Code, on and after January 1, 1980,
    the State Energy Resources Conservation and Development Commission shall not
    adopt nor publish a building standard as defined in Section 18909 of the Health and
    Safety Code unless the provisions of Sections 18930, 18933, 18938, 18940, 18943,
    18944, and 18945 of the Health and Safety Code are expressly excepted in the statute
    under which the authority to adopt rules, regulations, or orders is delegated. Any
    building standard adopted in violation of this section shall have no force or effect.
    Any building standard adopted before January 1, 1980, pursuant to this code and not
    expressly excepted by statute from such provisions of the State Building Standards
    Law shall remain in effect only until January 1, 1985, or until adopted, amended, or
    superseded by provisions published in the State Building Standards Code, whichever
    occurs sooner."
    Thus, the energy conservation manual in question, as mandated by Public Resources
    Code section 25402.1, subdivision (e), may not contain any building standards which have not been
    approved by the BSC in accordance with established procedures. However, there is no provision
    requiring that the manual as a whole be submitted to the BSC for general approval after the BSC has
    approved the individual standards submitted by the Commission. Given that the purpose of the
    manual is to assist persons in conforming to standards which themselves have gone through a
    lengthy review process (Pub. Resources Code, § 25402.1, subd. (e)), that all approved building
    standards and regulations are to be placed in the California Building Standards Code (§ 18940), and
    that certification of the manual by the Commission may occur up to 180 days after approval of the
    building standards by the BSC, it is evident that the Legislature did not contemplate that compilation
    of the manual with its approved standards would trigger another round of review by the BSC.
    What is to occur, then, if the Commission's energy manual contains building
    standards that have not been approved by the BSC? We believe that the Legislature has answered
    that question by providing a mechanism for challenging specific aspects of the Commission's energy
    manual, once it has been published. Section 18945, subdivision (a) states:
    Act and Section 18930."
    The intent of these provisions is to prevail where there is a conflict with other provisions of the
    Building Standards Law. (§ 18929, subd. (b).)
    3
    The Commission's "administrative regulations that apply directly to the implementation or
    enforcement of building standards" are primarily those needed for record-keeping purposes.
    4.                                         91-1203
    "Any person adversely affected by any regulation, rule, omission,
    interpretation, decision, or practice of any state agency respecting the administration
    of any building standard may appeal the issue for resolution to the [Building
    Standards] commission."4
    The energy manual may be viewed as setting forth interpretations, decisions, and practices of the
    Commission which concern the administration of building standards. To the extent that these
    interpretations, decisions, and practices are themselves building standards which have not been
    approved by the BSC, they have "no force and effect" (Pub. Resources Code, § 25216.4) and may
    be so found by the BSC upon successful challenge by a person who is adversely affected. (See §
    18946.)5
    We do not believe that this administrative appeal process undermines the legislative
    goals of having the BSC review and approve all building standards and regulations that apply
    directly to the implementation or enforcement of building standards. Only standards and regulations
    approved by the BSC are set forth in the California Building Standards Code. (§ 18931.) It is this
    codification that is determinative of the regulatory measures that are binding upon builders as valid
    building standards and regulations. Reliance is properly placed upon the latter code for
    "requirements" as distinguished from the manual's "suggestions." (§ 25402.1, subd. (e).)
    It is beyond the scope of this opinion to determine whether any current energy
    manual provision is actually an unapproved building standard6 despite being intended to serve
    merely as a "compliance aid."7 However, because of the explicit prohibition against the adoption
    4
    Section 18945 is one of the provisions which Public Resources Code section 25216.4
    enumerates as being applicable to all building standards adopted by the Commission unless
    specifically waived by the statute under which the authority to adopt rules, regulations, or orders is
    delegated.
    5
    This method of challenging specific aspects of the energy manual should not be viewed as an
    avenue for securing general review of the manual by the BSC; we interpret subdivision (e) of section
    25402.1 as not so mandating review of the entire manual by the BSC.
    6
    We do not read subdivision (b) of Section 18909 as broadening the scope of the term "building
    standard" as defined in subdivision (a). Subdivision (b), which provides that "building standard"
    includes "architectural and design functions of a building or structure," must be read in light of
    subdivision (a), which provides the main definition of "building standard" and is couched in terms
    of "requirements." Therefore, we read subdivision (b) as meaning requirements which pertain to
    "architectural and design functions of a building or structure."
    7
    Under subdivision (c) of section 18930, any factual determinations of the adopting agency must
    be considered conclusive by the BSC unless the BSC specifically finds, and sets forth its reasoning
    in writing, that the factual determination is arbitrary and capricious or substantially unsupported by
    the evidence considered by the adopting agency. In addition, whenever a building standard is
    principally intended to conserve energy, the BSC must consider or review the cost to the public or
    benefit to be derived as a "factual determination" pursuant to subdivision (c). (§ 18930, subd. (d).)
    However, these presumptions apply only when proposed regulations have been submitted by the
    Commission, as the adopting agency, for approval by the BSC. Provisions in the manual, aside from
    the approved building standards themselves, have not previously been reviewed by the BSC and
    therefore cannot be considered "factual determinations" which are entitled to "great weight." (§
    18930, subd. (c).) Among other things, the Legislature has charged the BSC with ensuring that there
    5.                                          91-1203
    of building standards by the Commission without approval of the BSC, we must conclude that any
    provision in the manual which serves to expand or change the underlying building standard is
    subject to being contested under the provisions of section 18945.8 In any event, as previously
    indicated, the relevant statutes, read as a whole, do not require the energy manual to be approved
    by the BSC before being published but contemplate only that particularized concerns with the
    contents of the manual be appealed to the BSC.
    *****
    is adequate technical review of proposed building standards and accompanying justification by
    advisory bodies appointed by the BSC. (§ 18929, subd. (a)(3).)
    8
    In this connection, considerable discretion is vested in the BSC since subdivision (a) of section
    18909 provides that "building standard" includes not only the specified rules, regulations, orders,
    or other requirements, but also other items "as determined by the commission."
    6.                                         91-1203
    

Document Info

Docket Number: 91-1203

Filed Date: 8/18/1992

Precedential Status: Precedential

Modified Date: 2/18/2017