Legislative committee listened, delay implementation until July 2024
By Alden Wicker and Emma Cotton/VTDigger
In May, a group of builders and architects took a somewhat unusual step: They asked Vermont lawmakers and state government officials to increase regulation and oversight of their own industry.
Requirements created by a new proposed building energy code, they argued, could become dangerous for homeowners and tenants unless contractors and builders have more training and oversight while they attempt to meet the standards.
On Thursday, June 8, the state’s Legislative Committee on Administrative Rules, or LCAR, appeared to heed the builders’ concerns. Members voted to move forward with a new residential building energy standard, but they delayed its effective date by a year — to July 2024.
Meanwhile, lawmakers who serve on the committee said they plan to introduce a bill next session that would design a new state program to enforce the building energy code and educate builders who have not had the training they need to comply with it.
As it stands, the building energy code in Vermont — which regulates residential construction to ensure that buildings use energy efficiently and to help meet climate change goals — is seldom enforced.
“Every other state has a full agency dedicated to amending the code, adopting a code, certifying contractors, training contractors, inspecting contractors and certifying,” Jason Webster, president and co-owner of Huntington Homes, told lawmakers in May. “Since 1997, the Vermont Legislature has not given Vermonters or Vermont builders that agency. It’s just given us the wish that we want energy efficiency.”
The lack of oversight and certification requirements for builders has led to buildings that structurally fail, builders told lawmakers last month. For example, improper use of spray foam insulation has caused building structures to rot, causing devastation for homeowners.
Vermont’s building energy code is updated every three years to comply with the International Energy Conservation Code. While builders say the lack of oversight has already led to home failures, the new proposed changes mark “the first amendment where the technical requirements of the code are going beyond basic building practices,” Webster said.
The proposed changes would require more robust insulation in basements, tighter air sealing, efficient and balanced ventilation systems. They would also include new standards for homes to have the capacity to charge electric vehicles.
“I think it’s really, really dangerous to be requiring an installation strategy that we haven’t been trained on, and there’s nobody there looking at us to make sure we’re doing it the right way,” Webster said.
In Vermont, the Dept. of Public Service designs changes to the building energy code, which are then approved by LCAR — a panel of state representatives and senators charged with evaluating rules put forward by the executive branch. Then, according to Sen. Chris Bray, D-Addison, who serves on LCAR, the Department of Public Safety checks certain components that could pose safety concerns, like a home’s HVAC system and its plumbing and wiring but doesn’t enforce compliance with the energy code.
“We have this odd situation where the people who publish the code don’t enforce the code, and so we need a home for the reinforcement and education pieces,” Bray said.
During Thursday’s meeting, Bray said the committee didn’t have a good reason to delay voting on the building energy code. The Dept. of Public Service had drafted a reasonable rule, he said, and the enforcement issue stood outside of the rulemaking process.
With that in mind, he proposed that the committee confirm the rule but delay its implementation until July 2024 to give the Legislature time to create a state entity that would improve compliance with the code. The committee voted in favor of his motion, 6-1-1.
In an interview, Bray said he can’t say for sure what a new state entity would look like, but that it could include two to three staff members who would coordinate a new system.
He pointed to a piece of the omnibus housing bill, S.100, which Gov. Phil Scott recently signed, that creates a working group to study the issue of building energy code compliance. Its report is due in December, in time to inform lawmakers’ decisions next session.
“It’s like a three-legged stool,” he said. “You need the builders, you need the administration and you need the Legislature all working together to get this done. Today in that meeting, I heard a clear articulation from all sides that we need to get all three legs of the stool shored up and working.”
Bray said that in the past the Scott administration hadn’t readily agreed to regulating the building industry but that the pleas from builders themselves may help change the governor’s mind.
Jim Bradley, a project developer with Hayward Design Build who also performs building audits, said he’s pleased that lawmakers appear ready to move toward a system with increased oversight.
Bradley works as an energy auditor for Efficiency Vermont and often investigates building failures. He estimated that he’s been called to evaluate around 20 homes in the last year that have failed due to improper building practices. “And I’m one person,” he said.
He imagines a system in which some builders or contractors receive extra training and certification through a program called HERS, the Home Energy Rating Score, and then help to inspect and certify projects.
Regardless of what happens next year, Bradley counted the outcome of Thursday’s meeting as a win.
“I think it’s a big win for consumers in Vermont,” he said. “I think it’s a big win for our building industry. It’s a big win for our planet.”
Sandy Vitzthum, a Montpelier architect and representative of the American Institute of Architects, has been active throughout the process and said she, too, counts the committee’s decision as a significant step forward, but she’s cautious in her optimism.
“It depends heavily, also, on the Scott administration supporting it, too,” she said. “There’s a lot of ‘ifs’ in this, but we’re hopeful, because it’s a really significant problem.
“(Massachusetts) has a full agency that is tasked with adopting and amending codes,” said Webster, whose business builds homes across New England. “Massachusetts has near 100% compliance on their target energy scores. They actually inspect, they actually certify, they actually train their builders to do it.
As part of a law passed in 2020, Vermont is operating under a deadline to reduce climate emissions by ambitious targets in 2025, 2030 and 2050 or risk litigation. Only the transportation sector produces more emissions than those created by Vermonters heating homes and other buildings.
But without a government authority to oversee implementation, witnesses testified, many builders will ignore the stricter energy code and Vermont will fail to meet its climate goals.
Meanwhile, well-meaning contractors with no training or education in building science who try to follow the stricter energy code will likely create dangerous conditions for Vermont homeowners, including rot, mold and other air quality and structural problems, builders testified in May.
Several builders and architects shared horror stories of clients becoming disabled by mold sickness or discovering damage requiring almost $100,000 in remediation and repair traced back to mistakes in weatherization and construction. Currently, a Vermont homeowner’s only recourse upon finding failures and mold is expensive and years-long litigation.
“(The energy code) offers no consumer protection right now,” said Jim Bradley, founder of the building science consultancy Authenticated Building Performance Diagnostics in Cambridge. “When that is left in the lap of the client, where they have to go fix things, remediate things. It’s a waste of our resources, which are in finite supply, and a waste of our builders, which are in finite supply.”
“I am the last person to recommend we need more enforcement by the government,” Collin Frisbie, vice president of Sterling Homes, testified. “It’s a health and safety issue. Will builders be fine? Yes, we will still make money. Will Vermonters be better off? No.”
“We have been begging the state for 20 years to fix this problem,” Vitzhum said. “We need to put our foot down, because it gets more serious with every update in the code. This is an untenable situation.”
