Local Law 97 (LL97) of 2019 §28-320.8 & §28-320.9 Adjustments Frequently Asked Questions

§28-320.8 Adjustment to applicable annual building emissions limit for calendar years 2024-2029

Buildings with calendar year 2018 emissions that are more than 40% above the 2024 limits provided for in Local Law 97 (LL97) due to a special circumstance (An applicant must show that the covered building’s emissions for calendar year 2018 exceed the 2024 building emissions limit by more than 40%)

• the excess building emissions must be attributable to a special circumstance related to the use of the building
• the covered building’s energy performance needs to be equivalent to that of a similar building in compliance with the 2014 New York City Energy Conservation Code (NYCECC), and
• the covered building must submit a plan indicating the path to reduce the actual building emissions to comply with building emissions limits for 2030-2035

28-§320.9 Adjustment to applicable annual building emissions limit for not-for-profit hospitals and healthcare facilities

Buildings that are not-for-profit hospitals or healthcare facilities may also be eligible for an adjustment to the applicable annual building emissions limits. To be eligible for this adjustment, an applicant must:

• Demonstrate not-for-profit building classification in existence on November 15, 2019, and for each year that an adjustment is used as the basis for compliance reporting

*For the purposes of AC §28-320.9, not-for-profit classification includes spaces owned or occupied by a not-for-profit hospital or healthcare facility.

Just as every building is unique, the applications for adjustment may vary from one building to another. Step-by-step instructions are detailed in the Filing Guide in sections 3.C and 3.D (for buildings with excess emissions) and sections 4.C and 4.D (for not-for profit hospitals or healthcare facilities). Applications will include information submitted directly in the DOB NOW system, along with technical documents and backup uploaded to DOB NOW, listed further in this FAQ.

Special circumstances include, but are not limited to:

• 24-hour operations (for occupancies/buildings that would otherwise not normally operate 24 hours daily);
• Operations critical to human health and safety;
• High density occupancy;
• Energy intensive communications technologies or operations; Energy-intensive industrial processes typically classified as an un-regulated load under the Energy Code.

The special circumstance must also account for more than 40% of the 2024-2029 building emissions limit applicable to the building. A narrative description of the special circumstance may be documented in the EN97A Workbook (refer to EN97A instructions)

This adjustment is not available to not-for-profit entities that are not hospital or healthcare organizations. This adjustment is also not available to hospital or healthcare organizations that are not designated as not-for-profit entities.

For commercial owners seeking an adjustment for space leased to a not-for-profit healthcare organization, adjustments can only be approved for leased spaces that are separately metered for electricity. Additionally, if the Not-for-Profit status is not maintained continuously as of November 15, 2019, then an adjustment cannot be granted. If the Not-for-Profit status changes after an adjustment has been granted, then the adjustment will not be allowable for reporting years in which the Not-for-Profit status does not exist.

Equivalent energy performance should be based upon annual building emissions after removing the effect of the special circumstance on building emissions. For the purpose of submitting an application, a building is currently equivalent to the 2014 NYCECC under the following conditions:

The CY2018 emissions are more the 40% above the 2024 limit, and All of the emissions in excess of the limit are attributable to one or more special circumstance(s). Buildings permitted and built under the 2014 NYCECC, or later version, should provide their DOB job number as evidence of equivalency. Note that part of the review will be a qualitative check for equivalency of the actual building versus a 2014 NYCECC compliant building. The department may require additional documentation to establish equivalency.

Building location (house number, street name, borough, block, and lot) and stakeholder (applicant of record/filing representative, and owner) information must be provided. The applicant of record and filing representatives must be registered with the Department of Buildings.

(§320.8) Required Entry in DOB NOW: Building Emissions Limit, 2018 Actual Building Emissions, ECC Equivalency Summary (Only for buildings not currently 2014 NYCECC equivalent), Emissions Reduction Plan Summary, Future Energy Use Breakdown Summary. Required uploads to DOB NOW: Stacking Diagram, EN97A Energy Analysis Workbook, Energy Analysis Report, Emissions Reduction Plan Report.

(§320.9) Required Entry in DOB NOW: Adjustment Application per §320.9, Establishing Building Emissions Limit, 2018 Actual Building Emissions. Required uploads to DOB NOW: Not-For-Profit Status, Stacking Diagram, EN97A Energy Analysis Workbook, EN97A Energy Analysis Report (only for applications submitting an energy model).

Applications must be submitted by a registered design professional (RDP). Only the stakeholders listed in the application may contact the Department about the filing.

Owner responsibility: The owner should provide accurate information to the applicant of record. Once the application is completed, the owner should review, verify, and attest that all the information submitted by the Applicant of Record is correct.

Applicant of record responsibility: The Applicant of Record should verify that the information provided by the owner and entered into DOB NOW is accurate to the best of their knowledge.

There is a review process in which the Department issues objections, and the applicant has time to correct issues with the application.

“High Density Occupancy” is not defined in the law. For an application to claim a special circumstance due to high density occupancy, the applicant must define the approach used to calculate the occupant density and explain how this building is considered high density compared to similar occupancy types. The Department will consider the methodology and has not set prescriptive requirements.

"Default energy calculations" are available for some properties and are based on their LL84 Benchmarking Energy data reported to Energy Star Portfolio Manager. Whether an energy model is necessary or not is based on how complex the special circumstance or energy systems in a specific building are. For some buildings, if these systems are metered and less complex, an energy model may not be needed. In very complex buildings, modeling may be necessary to make the case. Default energy calculations are submitted using the EN97A workbook and summarized and input into the DOB NOW system.

Occupancy should reflect how the building is being used. But if it is very contrary to the Certificate of Occupancy, you may need to update the C of O, which may prevent you from getting an adjustment.

We recommend that applicants do their best to document that they meet all of the requirements. However, applicants do have to submit every part of the application. If applicants can describe a specific challenge in meeting the requirements for a condition in a building, please send an e-mail to explain it. If we believe that it is not going to meet the requirements for an adjustment, we'll do our best to give you feed-back, prior to submitting. Send the details to ghgemissions@buildings.nyc.gov.

Most owners should have submitted energy benchmarking data to comply with Local Law 84 for 2018. If they did not submit, they will need to compile all of the energy bills to determine what the 2018 emissions were.

The emissions limits are based on specific property types. The limit for museums should reflect their unique operation. If there is a special circumstance for a museum that the 2024 emissions limit does not reflect, and the emissions are more than 40% above the limit, then an adjustment application can be submitted.

*Note: The Department is still working on the §320.7 Adjustments application process. Details on this will be forthcoming.