                      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.

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                   "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."

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