Amended in Senate March 19, 2013

Senate BillNo. 37


Introduced by Senator De León

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(Principal coauthor: Assembly Member Eggman)

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(Coauthor: Assembly Member Muratsuchi)

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December 5, 2012


begin deleteAn act relating to energy. end deletebegin insertAn act to add Sections 1940.10 and 2079.10b to the Civil Code, to amend Section 25402.9 of the Public Resources Code, and to add Chapter 7.6 (commencing with Section 2833) to Part 2 of Division 1 of the Public Utilities Code, relating to electricity.end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 37, as amended, De León. Energy efficiency and renewable energy upgrades: on-bill repayment program.

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Under

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begin insert(1)end insertbegin insertend insertbegin insertUnder end insertexisting law the Public Utilities Commission has regulatory authority over public utilities, including electrical corporations and gas corporations, as defined. Existing law authorizes the commission to fix the rates and charges for every public utility and requires that those rates and charges be just and reasonable.

This bill wouldbegin delete state the intent of the Legislature toend delete enactbegin insert the California Clean Energy Consumer Access Act of 2013 and would authorize the commission to require an electrical or gas corporation with 250,000 or more service connections to develop and implementend insert an on-bill repayment programbegin delete that will provide Californians greater access toend deletebegin insert providing financial assistance forend insert energy efficiencybegin delete and clean technology upgradesend deletebegin insert, renewable energy, distributed generation, or demand response improvements by allowing for the repayment of the financial assistance to be included in the utility customer’s utility bill (on-bill repayment). The bill would provide that the on-bill repayment obligation would run with the meter, as defined. Because a violation of any part of any order, decision, rule, direction, demand, or requirement of the commission isend insertbegin insert a crime, this bill would impose a state-mandated local programend insert.

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(2) Existing law requires sellers of property or landlords to provide specified disclosure, to prospective buyers or prospective or existing tenants, regarding the property.

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This bill would additionally require sellers of property or landlords to provide to prospective buyers or prospective or existing tenants a disclosure indicating that a portion of the utility bill is subject to an on-bill repayment obligation.

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(3) Existing law requires the State Energy Resources Conservation and Development Commission (Energy Commission) to develop, adopt, and publish an informational booklet to educate and inform homeowners, rental property owners, renters, seller, brokers, and the general public about the statewide home energy rating program. Existing law requires the Energy Commission to charge a fee for the booklet.

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This bill would require the Energy Commission to update the booklet to include information about home energy conservation and on-bill repayment program developed pursuant to (1) above. This bill would instead authorize the Energy Commission to charge a fee for the booklet.

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(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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Vote: majority. Appropriation: no. Fiscal committee: begin deleteno end deletebegin insertyesend insert. State-mandated local program: begin deleteno end deletebegin insertyesend insert.

The people of the State of California do enact as follows:

P2    1begin insert

begin insertSECTION 1.end insert  

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This act shall be known, and may be cited, as the
2California Clean Energy Consumer Access Act of 2013.

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3begin insert

begin insertSEC. 2.end insert  

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(a) The Legislature finds and declares all of the
4following:

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P3    1(1) Currently, many Californians lack access to affordable
2financing for onsite energy efficiency and clean energy projects.

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3(2) Existing clean energy programs and incentives are important
4but limited in that they are funded by insufficient amounts of
5ratepayer or taxpayer moneys, and in that existing programs reach
6only a small number of Californians due to restrictions in income
7level, credit score, project size, or property and technology specific
8eligibility criteria.

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9(3) California’s current economic condition necessitates that
10the Legislature engineer pioneering ways to create sustainable,
11green collar jobs.

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12(4) Since the recession began in late 2007, California has lost
13nearly 1.4 million jobs, including 400,000 in the construction
14industry alone. Investing in clean energy projects will maximize
15job creation and will help the state regain a sense of economic
16security and sustainability at a time when unemployment remains
17high. The state can further stimulate its economy by putting the
18industry segment back to work that is most in need, the construction
19trades.

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20(5) Allowing the financing of clean energy projects through the
21utility bill has the cobenefit of allowing for a more affordable
22interest rate than would be otherwise available due to the security
23of utility bill payments and allowing for ratepayers to see the
24benefits and costs of clean energy projects on the same document.

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25(6) By tying repayment to the utility bill, ratepayers will make
26payments for their upgrades on the same bill where savings are
27realized from the investment, resulting in a new bill that can be
28equal to or even less than their utility bill prior to energy upgrades.

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29(7) On-bill repayment is a unique clean energy incentive
30program because it does not rely on public funding and expands
31access to energy efficiency and clean technology upgrades.

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32(8) On-bill repayment will incentivize private investors to invest
33in clean energy improvements in California, will stimulate the
34state’s economy by creating jobs for contractors and other persons
35who complete new energy improvements, and will reinforce the
36leadership role of the state in the new energy economy, thereby
37attracting clean energy manufacturing facilities and related jobs
38to the state.

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39(b) It is the intent of the Legislature, in enacting this act, to
40allow greater access to onsite clean energy projects by allowing
P4    1consumers to finance clean energy projects through their utility
2bills in a financing mechanism called “on-bill repayment.”

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3begin insert

begin insertSEC. 3.end insert  

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begin insertSection 1940.10 is added to the end insertbegin insertCivil Codeend insertbegin insert, to read:end insert

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4

begin insert1940.10.end insert  

(a) A property owner that authorizes a project
5financed by the OBR program pursuant to Chapter 7.6
6(commencing with Section 2833) of Part 2 of Division 1 of the
7Public Utilities Code shall provide to an existing tenant who is
8responsible, directly or indirectly through the provisions of the
9applicable lease, for paying all or a portion of the cost of utility
10service that is subject to an OBR obligation, the disclosure made
11available to the property owner pursuant to Section 2833.3 of the
12Public Utilities Code.

13(b) Prior to the signing of a lease or rental agreement, an owner,
14or the agent of an owner of any premises with respect to which
15utility service is subject to an OBR obligation that will be paid by
16the tenant, whether directly or indirectly through the provisions
17of the applicable lease, shall provide a prospective tenant with the
18disclosure that was provided to the owner pursuant to Section
192833.3 of the Public Utilities Code.

20(c) A lease shall not be invalidated solely because of the failure
21to comply with this section.

22(d) For the purposes of this section, the following terms have
23the following meanings:

24(1) “OBR program” has the same meaning as that set forth in
25Section 2833 of the Public Utilities Code.

26(2) “OBR obligation” has the same meaning as that set forth
27in Section 2833 of the Public Utilities Code.

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28begin insert

begin insertSEC. 4.end insert  

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begin insertSection 2079.10b is added to the end insertbegin insertCivil Codeend insertbegin insert, to read:end insert

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29

begin insert2079.10b.end insert  

(a) Every seller of real property subject to an OBR
30obligation that runs with the meter, pursuant to Chapter 7.6
31(commencing with Section 2833) of Part 2 of Division 1 of the
32Public Utilities Code, shall deliver to the buyer of the property the
33disclosure that was provided to the seller Section 2833.3 of the
34Public Utilities Code.

35(b) Upon delivery of the disclosure form to the buyer of real
36property, the seller or agent is not required to provide additional
37information relative to the OBR obligation and the information in
38the disclosure form is deemed adequate to inform the buyer about
39the existence of the OBR obligation and the OBR repayment charge
P5    1that will run with the meter pursuant to Section 2833.3 of the
2Public Utilities Code.

3(c) For the purposes of this section, the following terms have
4the following meanings:

5(1) “OBR obligation” has the same meaning as that set forth
6in Section 2833 of the Public Utilities Code.

7(2) “OBR repayment charge” has the same meaning as that set
8forth in Section 2833 of the Public Utilities Code.

9(3) “Runs with meter” has the same meaning as that set forth
10in Section 2833 of the Public Utilities Code.

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11begin insert

begin insertSEC. 5.end insert  

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begin insertSection 25402.9 of the end insertbegin insertPublic Resources Codeend insertbegin insert is
12amended to read:end insert

13

25402.9.  

(a) On or before July 1, 1996, the commission shall
14develop, adopt, and publish an informational booklet to educate
15and inform homeowners, rental property owners, renters, sellers,
16brokers, and the general public about the statewide home energy
17rating program adopted pursuant to Section 25942.

18(b) In the development of the booklet, the commission shall
19consult with representatives of the Department of Real Estate, the
20Department of Housing and Community Development, the Public
21Utilities Commission, investor-owned and municipal utilities,
22cities and counties, real estate licensees, home builders, mortgage
23lenders, home appraisers and inspectors, home energy rating
24organizations, contractors who provide home energy services,
25consumer groups, and environmental groups.

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26(c) The commission shall update the booklet developed pursuant
27to subdivision (a) to include information about home energy
28conservation and on-bill repayment programs developed and
29implemented pursuant to Chapter 7.6 (commencing with Section
302833) of Part 2 of Division 1 of the Public Utilities Code.

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31(c)

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32begin insert(d)end insert The commissionbegin delete shallend deletebegin insert mayend insert charge a fee for the informational
33booklet to recover its costs under subdivision (a).

34begin insert

begin insertSEC. 6.end insert  

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begin insertChapter 7.6 (commencing with Section 2833) is added
35to Part 2 of Division 1 of the end insert
begin insertPublic Utilities Codeend insertbegin insert, to read:end insert

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P6    1Chapter  begin insert7.6.end insert California Clean Energy Consumers Access
2Act of 2013
3

 

4

begin insert2833.end insert  

For the purposes of this chapter, the following the terms
5have the following meanings:

6(a) “Bill neutrality” means a utility customer’s annual payments
7of OBR repayment charges set at an amount that is less than or
8equal to the projected annual electric and gas energy savings
9arising from the OBR improvements in a methodology to be
10determined by the commission pursuant to Section 2833.1.

11(b) “Incurring customer” means the utility customer of record
12during the billing period during which any OBR repayment charge
13becomes due and payable.

14(c) “OBR agreement” means a written agreement executed by,
15and among, a utility customer, an OBR partner or its agent, and
16a utility or its agent, governing the terms of an OBR obligation.

17(d) “OBR improvement” means an eligible energy improvement
18financed through an OBR obligation.

19(e) “OBR obligation” means an obligation to repay a financing
20provided to a utility customer pursuant to an on-bill repayment
21program.

22(f) “OBR partner” means a person or entity providing financing
23for eligible energy improvements pursuant to an on-bill repayment
24program. OBR partners include, but are not limited to, banks,
25savings and loan institutions, credit unions, project developers,
26or independent solar energy producers, as defined in Section 2868.
27Financing may be provided in the form of a loan, lease, power
28purchase agreement, energy service agreement, or other financing
29structure approved by the commission.

30(g) “On-bill repayment program” or “OBR program” means
31a program, which may include one or more pilot test programs,
32approved by the commission that enables building owners or
33occupants to arrange, by an OBR agreement, for the financing of
34eligible energy improvements that is repaid through charges to be
35included as a portion of utility bills for utility service to the
36premises served by the improvements.

37(h) “OBR repayment charge” means a charge, constituting
38repayment of all or a portion of any OBR obligation, that is
39included on a utility bill in accordance with a
40commission-approved utility tariff.

P7    1(i) “Run with the meter” means all of the following:

2(1) The OBR obligation, for so long as any portion of the OBR
3obligation remains outstanding prior to the sale or transfer of the
4applicable real property, survives a change in ownership, tenancy,
5or meter account responsibility.

6(2) The OBR obligation, for so long as any portion of the OBR
7obligation remains outstanding, at all times constitutes an
8obligation of the utility customer of record with respect to the
9premises served by the OBR improvements to repay.

10(3) Arrears in OBR repayment charges outstanding prior to the
11sale or transfer of the applicable real property remain the
12responsibility of the incurring customer, unless expressly assumed
13by a subsequent customer or third party.

14(4) The exemption from restrictions on a utility’s right to
15terminate service pursuant to Section 2833.11 applies to the
16subsequent utility customer for as long as any portion of the OBR
17obligation remains outstanding.

18(j) “Utility” means an electrical corporation or gas corporation
19that develops, or is required to develop, an on-bill repayment
20program.

21

begin insert2833.1.end insert  

(a) The commission may require an electrical
22corporation or gas corporation with 250,000 or more service
23connections in the state to develop and implement one or more
24on-bill repayment programs for eligible energy efficiency,
25renewable energy, distributed generation, or demand response
26improvements.

27(b) A utility shall not implement the on-bill repayment program
28without the express approval of the commission.

29(c) The commission shall supervise on-bill repayment programs
30to ensure that the programs are administered in compliance with
31the terms approved by the commission.

32

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(a) The commission shall establish requirements to
33be met by each utility in the utility’s on-bill repayment programs
34that are submitted to the commission for approval, including, but
35not limited to, eligibility criteria for types of improvements and
36projects, the establishment of energy and cost savings evaluation
37standards, requirements that prevent increases in expected
38disconnection rates, prepayment options, rules that prohibit the
39unauthorized removal from the property of an OBR improvement,
P8    1a methodology to determine bill neutrality, and project inspection
2services or requirements.

3(b) The commission shall limit technologies eligible to be
4financed through OBR obligations to those that will achieve
5reductions of greenhouse gases as defined in the California Global
6Warming Solutions Act of 2006 (Division 25.5 (commencing with
7Section 38500) of the Health and Safety Code).

8(c) The commission shall ensure the on-bill repayment program
9includes all of the following program elements:

10(1) (A) For two years from the initial approval of the program
11by the commission, all on-bill repayment programs shall require
12bill neutrality.

13(B) Two years after the initial approval, the commission shall
14evaluate the success of projects financed through on-bill repayment
15to date. If the commission determines that the requirement for bill
16neutrality has unnecessarily limited the types of projects that may
17be financed through the program, the commission may limit the
18application of the bill neutrality requirement.

19(C) Notwithstanding subparagraph (B), the bill neutrality
20requirement shall apply, at all times, in cases where a portion of
21the OBR repayment charges are expected to be paid by one or
22more tenants on the property, whether directly or indirectly.

23(2) A requirement that an OBR obligation shall not be put in
24place without authorization by all owners of the fee interest in the
25property where the premises served by the OBR improvements is
26located.

27(3) Consumer protections for low-income residential customers,
28including protections to prevent increases in the expected number
29of service terminations, such as targeted use of a
30commission-approved loan loss reserve in lieu of service
31termination, and, including, at all times, a requirement for bill
32neutrality for lower income households.

33(4) A requirement that the OBR partner implement consumer
34protections, loan eligibility, and credit determinations.

35(5) A requirement that the OBR partner provide the utility or
36its agent with a copy of all financing documents associated with
37an OBR obligation.

38(6) A requirement that the OBR repayment charge be listed by
39the utility as a separate line item on the customer’s bill from the
40utility.

P9    1(7) A requirement that the on-bill repayment charge collected
2by the utility or its agents be remitted to the OBR partner pursuant
3to a timeframe determined by the commission.

4

begin insert2833.3.end insert  

The OBR program shall develop all of the following:

5(a) A description of OBR programs and OBR obligations that
6would be included in the informational booklet developed pursuant
7to Section 25402.9 of the Public Resources Code.

8(b) A standard disclosure required by Section 2079.10b of the
9Civil Code to be available for use by a seller of real property that
10is served by OBR improvements that is provided free of charge to
11the seller upon request.

12(c) A standard disclosure required by Section 1940.10 of the
13Civil Code to be available for use by a lessor of real property that
14is served by OBR improvements that is provided free of charge to
15 the lessor upon request.

16

begin insert2833.4.end insert  

(a) If the amount paid by the utility customer is less
17than the amount billed to the customer on the utility bill, for a
18utility customer account to which an OBR obligation is in effect,
19the commission shall adopt one of the following methods for
20allocation of the payment:

21(1) Allocate the payment in the following order of priority:

22(A) Beginning with the earliest billing period in which an
23arrearage exists, allocate to the utility in respect of the outstanding
24arrearage in all charges other than OBR repayment charges (such
25charges, the non-OBR charges) accrued during that billing period.
26Upon the satisfaction of that arrearage, allocation to the OBR
27partner in respect of the outstanding arrearage in the OBR
28repayment charges accrued during that billing period.

29(B) Upon the satisfaction of arrearage pursuant to subparagraph
30(A), the remaining amount of the payment, if any, shall be allocated
31to the arrearages accrued in subsequent billing periods pursuant
32to subparagraph (A), with the arrearage accruing from any earlier
33billing period being satisfied before the arrearages accruing from
34subsequent billing period. With respect to any billing period,
35allocation shall be made first to the utility in respect of all
36non-OBR charges, and, after satisfaction of the arrearage in
37non-OBR charges accruing in such billing period, to the OBR
38partner in respect of the arrearage in OBR repayment charges
39accruing in such billing period.

P10   1(C) Upon the satisfaction of all prior arrearages accruing from
2prior billing periods, the remaining payment, if any, shall be
3 allocated first to the utility in respect of the non-OBR charge in
4the current billing period. Upon the satisfaction of that charge,
5allocation shall be made to the OBR partner in respect of the OBR
6repayment charge in the current billing period.

7(2) Allocate the payment to the utility and the OBR partner on
8a pro-rata basis, in proportion to the non-OBR charge and OBR
9repayment charge due and owing during the applicable billing
10period, with arrearages from the earlier billing period being
11satisfied first, followed by arrearages from subsequent billing
12periods, which shall be addressed in chronological order, followed
13by charges that are due and owing during the current billing
14period.

15(b) Any arrearage in payment for a billing period shall be
16included in subsequent billing periods until it is paid in full.

17(c) In the event of an arrearage in payment, the full amount of
18the arrearage constitutes a failure to pay for electric or gas service
19and shall be treated consistent with the rules established by the
20commission for a customer’s failure to pay for service.

21

begin insert2833.5.end insert  

With respect to a utility account that has been closed
22and in which arrearage exist, including arrearage with respect to
23OBR repayment charges, the commission may adopt rules
24providing that after a period of time to be determined by the
25commission, the share of total arrearage that is attributable to the
26OBR obligation may be deemed, as of a date certain, to be an
27obligation owed directly to the OBR partner and not to the utility.

28

begin insert2833.6.end insert  

(a) An OBR obligation shall run with the meter unless
29the commission has determined that it is not reasonable for the
30applicable category of OBR obligation to run with the meter.

31(b)  Acceptance of electric or gas service to premises that are
32served by OBR improvements, and to which an OBR obligation is
33outstanding, following submission of an application for that
34service, operates as an acceptance of the OBR obligation
35associated with electric or gas service, as applicable, to the extent
36that OBR repayment charges accrue during the period of electric
37or gas service and an assumption of the contractual rights and
38obligations of the OBR agreement for the duration of receipt of
39that service.

P11   1(c)  Acceptance of electric or gas service does not operate as
2an assumption of any past due OBR repayment charges incurred
3prior to the commencement of that service by the person or entity
4that subsequently becomes the customer of record.

5

begin insert2833.7.end insert  

(a) The commission shall authorize a utility to recover
6all prudently incurred actual costs, net of any fees charged to a
7customer, OBR partner, contractor, or other third party, of
8establishing and administering the on-bill repayment program.

9(b) The commission shall approve a utility’s request for cost
10recovery of actual costs for all judgments, settlements, costs, and
11expenses, including attorney’s fees, and other liabilities paid or
12incurred by or imposed upon the utility in carrying out required
13activities under an OBR program pursuant to public or private
14enforcement of federal laws governing consumer lending, credit,
15debt collection, and servicing.

16(c) Utilities, to the extent they are carrying out required
17activities pursuant to an on-bill repayment program, shall not be
18responsible for lending, underwriting, and credit determinations,
19and are not subject to the California Finance Lenders Law
20(Division 9 (commencing with Section 22000) of the Financial
21Code), the California Financial Privacy Act (Division 1.4
22(commencing with Section 4050) of the Financial Code), or the
23Rosenthal Fair Debt Collection Practices Act (Title 1.6C
24(commencing with Section 1788) of Part 2 of Division 3 of the
25Civil Code).

26

begin insert2833.8.end insert  

(a) For each OBR obligation, the OBR partner or its
27agent shall record in the county recorder’s office of a county in
28which the property is located, a notice, with respect to the real
29property on which the premises served by the OBR improvements
30are situated, of the existence of the OBR obligation and stating
31the total amount of the OBR obligation, the term of the OBR
32obligation, and that the OBR obligation is being repaid through
33a charge on an electric or gas service provided to the property.
34The notice shall further state that it is being filed pursuant to this
35section and, unless fully satisfied prior to the sale or transfer of
36the property, the OBR obligation shall survive changes in
37ownership, tenancy, or meter account responsibility and, until
38fully satisfied, shall constitute the obligation of the person
39responsible for the meter account. The notice shall not constitute
40a mortgage or deed of trust and shall not create any security
P12   1interest or lien on the property. Upon satisfaction of the OBR
2obligation, the OBR partner or its agent shall promptly record a
3notice of repayment or a termination of notice.

4(b) The county recorder shall record the notices in the same
5book in which the deeds are recorded.

6

begin insert2833.9.end insert  

The commission and the utility shall not provide a
7forum to adjudicate disputes arising from this chapter. If a dispute
8arises between the customer and the OBR partner regarding the
9customer’s obligation to pay the OBR obligation, the utility shall
10not be responsible in any respect relating to the disputes and shall
11handle funds collected from the customer in accordance with the
12program rules.

13

begin insert2833.10.end insert  

The commission shall periodically evaluate on-bill
14repayment programs and may suspend or modify part or all of a
15program if it finds that the program does not meet commission
16requirements or goals. Suspension shall not affect the OBR
17obligations that exist at the time of the suspension.

18

begin insert2833.11.end insert  

Subdivision (e) of Section 777.1 and subdivision (a)
19of Section 779.2 do not apply to delinquency in OBR repayment
20charges.

21

begin insert2833.12.end insert  

(a) This chapter does not require that the on-bill
22repayment programs be identical and the commission may vary
23program elements for each utility based upon each utility’s
24individual circumstances.

25(b)  This chapter does not limit the authority of the commission
26to approve and supervise separate on-bill repayment programs
27with different features for different categories of customers,
28including single-family residential, multifamily residential,
29industrial, governmental, commercial, and other categories of
30customers that the commission determines to be appropriate.
31Utilities shall not implement on-bill repayment programs without
32the express approval of the commission.

end insert
33begin insert

begin insertSEC. 7.end insert  

end insert
begin insert

No reimbursement is required by this act pursuant to
34Section 6 of Article XIII B of the California Constitution because
35the only costs that may be incurred by a local agency or school
36district will be incurred because this act creates a new crime or
37infraction, eliminates a crime or infraction, or changes the penalty
38for a crime or infraction, within the meaning of Section 17556 of
39the Government Code, or changes the definition of a crime within
P13   1the meaning of Section 6 of Article XIII B of the California
2Constitution.

end insert
begin delete
3

SECTION 1.  

The Legislature finds and declares all of the
4following:

5(a) Despite existing programs, large numbers of Californians
6currently do not have access to energy efficiency and clean
7technology upgrades.

8(b) Existing clean energy programs and incentives are important
9but limited in that they are underfunded and reach only a small
10number of Californians due to restrictions in income level, credit
11score, project size, or commercial-only eligibility.

12(c) Energy efficiency and clean technology upgrades currently
13have especially low penetration rate due to a split incentive between
14renter and landlord over the costs and benefits of such projects.

15(d) California’s current economic condition necessitates that
16the Legislature develop pioneering ways to create sustainable,
17green collar jobs.

18(e) On-bill repayment is an innovative and pioneering concept
19that would provide affordable financing of energy efficiency and
20on-site clean generation technology upgrades by tying repayment
21of the loan obligation to the utility meter.

22(f) By tying repayment to the utility bill, ratepayers would repay
23the loan on the same bill where savings are realized from the
24investment, creating a potential net bill neutrality or even a
25decrease in the ratepayer’s bill as a result of the investment.

26(g) On-bill repayment would be a unique clean energy incentive
27program because it would not rely on ratepayer or taxpayer funding
28and it would expand access to energy efficiency and clean
29technology upgrades.

30(h) On-bill repayment would incentivize private investors to
31invest in California’s clean energy improvements, would stimulate
32the state’s economy by creating jobs for contractors and other
33persons who complete new energy improvements, and would
34reinforce the leadership role of the state in the new energy
35economy, thereby attracting clean energy manufacturing facilities
36and related jobs to the state.

37(i) It is the intent of the Legislature to enact an on-bill repayment
38program that will provide Californians greater access to energy
39efficiency and clean technology upgrades.

end delete


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