September 8, 2010 0

Energy Ace: Five Lessons learned From 100+ LEED Projects

By sustainability in Environmental and Sustainability Law

Atlanta-based Energy Ace is a single-source, full service firm providing green building technical and administrative services. (http://energyace.com)

The firm’s president, Wayne Robertson, PE, LEED AP, recently reached out to SGR to discuss his experience and advice after working with more than 100 LEED-certified projects. 

The following is an article authored by Mr. Robertson discussing tips and techniques he and his team learn with each new project.

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“Experience is the best teacher,” someone (probably Adam) once said.

For LEED projects, that maxim holds especially true because ours is a new field without a long history of accepted wisdom, rules of thumb, tricks of the trade, or other well-documented and long-held truths from which the practitioner can learn.

Despite experience with more than 100 LEED projects, our firm learns new tips and techniques with each new project, and we document them for our own improvement.

Here are five to share:

  • Project team: Having an enthusiastic team is the most important factor for success. With a gung-ho owner, a motivated A/E and a cooperative contractor, your project will be well on the way toward success. Enthusiasm is so important that we rank it higher than prior LEED experience on the part of the team members.
  • Project champion: Early on, find the project champion and make friends with him or her. The project champion is the one person on the owner’s team who pushes the project and, even more importantly, pushes the team members to complete their credits, do their calculations, attend the LEED meetings and so on. Even motivated A/Es and cooperative contractors can lose their enthusiasm as a project goes on or get distracted with other pressing issues, so the owner’s champion is the one to light — or relight — the fire.
  • Credit cushion: Regardless of the number of points your team thinks the project will achieve, build in at least a 10 percent cushion to ensure certification level success. That is, if you are seeking LEED Silver (50 points), have 55 points available. If Gold is the goal (60 points), strive for 66 points and so on. Why? Because during design, construction or LEED review, stuff happens and credits get lost or denied in the review process. It’s always wise to have a safety margin.
  • Which credits: To identify LEED credits to pursue, kickoff each project with a LEED charrette with all the team members present in person. After project and LEED orientation, go through the rating system checklist, and ask yourselves three questions for each credit: “Is it easy to do? Is it cheap to do? Is it good for the project?”  Try to get as many affirmative answers for each credit as you can.
  • Interpreting a Credit: When puzzling over a design feature to see if it might satisfy a LEED credit, focus on achieving the intent of the LEED credit and document accordingly. Ask yourself, “What is LEED trying to accomplish with this particular credit?” Read the entire section in the LEED Reference Guide for the subject credit, including the Benefits and Issues to Consider (item 1) and the Examples (item 8). LEED’s main focus in determining credit compliance is that the project is achieving and demonstrating that the intent of the credit has been met. Use the Optional Narrative sections, and document generously. If you think about the intent — and if you interpret it properly — you’ll probably be successful in attaining that credit.

These are five tips to lead you to a successful LEED project. You will no doubt collect your own as you go along, and we recommend you assemble them for your own continuous improvement.

A complete copy of the article is also available at: http://energyace.com/article/best-teacher-five-lessons-learned-100-leed-projects

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September 7, 2010 0

Georgia losing out on renewable energy

By sustainability in Environmental and Sustainability Law

The Reznick Group’s Wes Hudson, co-managing principal of the Atlanta office, recently authored an excellent article discussing how Georgia needs to up the ante in the renewable energy game, given that ”in an economy with record unemployment, Georgia has turned down billions of dollars in federal grants intended to stimulate investment in renewable energy in the past 12 months.”

An excerpt from Mr. Hudson’s article:

It was recently reported in the Atlanta Journal-Constitution (http://www.ajc.com/business/georgia-power-to-double-595617.html ) that “Georgia Power is doubling the amount of solar energy it will buy from independent producers.” Unfortunately, doubling a ludicrously low number is more an exercise in green-washing than any real progress. Especially given glaring facts such as the fact that there is literally 10 times more solar energy installed in DeSoto County Florida (25 Megawatts) than the entire state of Georgia).

While Reznick Group and numerous other companies and professional organizations like the Georgia Solar Energy Association continue to applaud this change in stance by the nation’s most obstinate power company, such changes in heart are unfortunately essentially cosmetic.

The new stance by the power company is truly only modestly helpful news for real estate, and then only on the very small scale as compared to other southern states. The latest change in corporate policy by the public utility is unfortunately very, very limited (by design) and does not, indeed cannot, apply to the required larger commercial and utility scale solar projects that big-box companies are preferring to do in other states like North Carolina, Florida, Tennessee and other southern states. So Georgia is still at the back of the line in relative comparison.

Yet Georgia’s economy cannot afford to lose out on large commercial and utility scale solar and biomass projects, which continue to select other southeastern states for their base of operations. Why? It’s because Georgia state law does not support the renewable energy electrical sales industry and instead supports fossil and nuclear fuels. Georgia only dabbles in biomass and landfill gas to serve the purposes of corporate marketing. Hyrdo power is maxed out.

Read more: Georgia losing out on renewable energy – Atlanta Business Chronicle

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September 6, 2010 0

O’Day to speak at Upcoming AIA Conference

By sustainability in Environmental and Sustainability Law

Steve O’Day will speak on “LEED-ing Edge Liability” at the AIA South Carolina 2010 Fall Conference entitled, “Sustainable Planet Sustainable Profit: SYNERGY BY DESIGN.”

The conference will be held October 21-23 in Hilton Head Island, South Carolina.

For more information, please click here

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September 2, 2010 0

Another Oil Rig Blast in Gulf, AP Reports

By sustainability in Environmental and Sustainability Law

Another offshore oil rig has exploded in the Gulf of Mexico, west of the site of the BP blast and resulting oil spill that occurred in April, the Associated Press reports.

Thirteen people were on the rig and have been rescued and accounted for. One person was injured, according to a U.S. Coast Guard spokesman.

An oil sheen of approximately 100 feet wide has been reported.

The company that owns the rig, Houston-based Mariner Energy, reported that it did not know what caused the blast.

For the complete AP Story by Alan Sayre, please visit: http://www.washingtonpost.com/wp-dyn/content/article/2010/09/02/AR2010090202590.html?wpisrc=nl_natlalert

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September 1, 2010 0

EPA Proposes Rules on Clean Air Act Permitting for GHG Emissions

By sustainability in Environmental and Sustainability Law

In spring 2010, EPA finalized the Greenhouse Gas (“GHG”) Tailoring Rule, which states that large industrial facilities and projects will require an air permit for their GHG emissions beginning in 2011.

On August 12, 2010, EPA issued two proposed rules to address concerns that some states will not be ready to issue permits on January 2, 2011.

In the first rule, EPA proposes to find that 13 states — Alaska, Arizona, Arkansas, California, Connecticut, Florida, Idaho, Kansas, Kentucky, Nebraska, Nevada, Oregon, and Texas — have state implementation plans (SIP) that are “substantially inadequate” to meet CAA requirements. The plans are inadequate because they do not appear to apply prevention of significant deterioration (PSD) requirements to GHG-emitting sources. EPA is proposing an expedited schedule for these states to make changes to their implementation plans and submit corrective SIP revisions.

Because some states may not be able to develop and submit revisions to their plans before the Tailoring Rule becomes effective in 2011, in the second, companion rule, EPA proposes a federal implementation plan (FIP) that would give EPA authority to issue permits for large GHG emitters located in these states. This would be a temporary measure in place until the state can revise its own plan and resume responsibility for GHG permitting.

With certain deadlines approaching and additional guidance and regulations expected, SGR will continue to monitor the legal challenges to EPA’s GHG rules and provide updates.

The past 12 months has seen numerous changes and actions from EPA:

  • On February 24, 2010, we noted that a number of lawsuits had been filed challenging EPA’s December 2009 determination that greenhouse gases (“GHG”s) endanger human health and welfare.  This year, as EPA issues additional regulations and guidance governing GHGs, more lawsuits have followed.
  • In March of 2010, EPA reconsidered the “Johnson Memorandum” relating to when pollutants are subject to regulation, thereby triggering Clean Air Act permitting programs. In its reconsideration decision, EPA explained that Prevention of Signification Deterioration (“PSD”) permitting for pollutants such as GHGs is triggered when the control requirements of a nationwide GHG rule take effect — meaning stationary sources of GHGs will have to obtain permits when the EPA’s rule for regulating the tailpipe emission of cars and light trucks takes effect in January 2011. Following this issuance, industry groups sued EPA, challenging the EPA’s policy and its use of the Clean Air Act (CAA) as justification.
  • In May of 2010, EPA finalized its rule regulating the GHG tailpipe emissions of cars and light trucks. While the car industry has not challenged this rule, perhaps due to a desire to have nationwide standards, some lawsuits remain.
  • On June 3, 2010, EPA finalized its “tailoring” rule setting thresholds for GHG emissions that define when permitting is triggered for stationary sources.  The rule establishes a phase-in program that initially targets only the larger GHG sources.  To date, industry groups and lawmakers have challenged this rule and other challenges were filed before the August 2, 2010 deadline.  The legal challenges to EPA’s actions have been filed by various industry groups, 15 States, and 15 Members of Congress. The suits raise a number of claims, including: (i) that the GHGs rules will regulate a large portion of the U.S. economy, thereby costing billions of dollars; (ii) that the science underlying the GHG regulations is controversial; and (iii) that the agency has exceeded its authority. While many lawsuits have been filed, however, EPA also has supporters – more than 15 states have intervened in these legal challenges on the side of EPA.

For more information, please contact Steve O’Day (soday@sgrlaw.com) or Lisa Branch (lbranch@sgrlaw.com), or post comments here and we will respond as soon as possible!

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August 31, 2010 0

The Limits of Asset Protection For Florida Homestead Property

By admin in Estate Planning & Wealth Protection

Authored by: Michael C. Levy, Esq.

Protecting an estate or trust’s assets from creditors often requires estate planning attorneys to advise clients to buy or own property in states with strong asset protection statutes.  The Florida Homestead Law provides, amongst other benefits, one of the strongest protections against the claims of creditors.  Generally, creditors cannot force the sale of homestead property to satisfy their outstanding claims.  However, a recent Tax Court decision indicated one major exception to this rule.

In Rubenstein v. Commissioner, the IRS sought to levy against the transferee of Florida homestead property to satisfy the claims against the transferor-debtor.  The transferee, the son of the debtor, had received the homestead property in 2003 at a time when his father owed the IRS over $100,000 in unpaid federal income tax.  The IRS subsequently filed a lien against the son for the father’s outstanding debt and subsequently determined that the son was liable for the value of the transferred property.  The son challenged the IRS on several grounds, most notably that the homestead property was exempt from claims of creditors and thus he should have no transferee liability.

In ruling against the son, the Tax Court acknowledged that, in general, homestead property is exempt from claims of creditors.  Several exceptions exist including for claims that arise in connection with the property (such as mortgages) and, as the Court held, federal agencies including the IRS.  Because the father’s transfer occurred while he had an outstanding debt to the IRS and insufficient means to pay off his debt, the transfer was considered a fraudulent conveyance, creating transferee liability to the son.  The son also argued that by providing care for his father during years of his deteriorating health, the transfer was made for reasonable consideration.  The Court similarly rejected this argument, holding that although the son’s service to his father was ‘commendable’, it did not rise to the level of reasonable consideration for his father’s transfer of the property.

Asset protection planning requires careful consideration of not only a specific jurisdiction’s law, but also the facts and circumstances that are behind the planning.  As the decision in Rubenstein shows, failure to properly consider the facts or the law can lead to loss of the assets and potential liability for the transferees.

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August 23, 2010 0

EPA Proposed Rule Increases Reporting Requirements for Certain Chemicals

By sustainability in Environmental and Sustainability Law

On August 11, EPA released the text of a proposed rule under the Toxic Substances Control Act (TSCA), which will increase reporting requirements for chemicals regulated under that statute.

The proposed rule will amend EPA’s Inventory Update Rule (IUR), which requires manufacturers and importers of certain chemicals to report specified information for those substances.  The amended rule will increase those reporting requirements, including expanding the time period for reporting, increasing the frequency, eliminating upper thresholds for reporting, and rejecting more confidential business information claims, among other changes.

Companies who import or manufacture chemicals that are subject to TSCA and are concerned about any of the proposed additional reporting requirements should comment on the proposed rule during the public comment period.

For more information or assistance, please contact Steve O’Day (soday@sgrlaw.com), Phillip Hoover (pehoover@sgrlaw.com), or Lisa Branch (lbranch@sgrlaw.com).

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August 22, 2010 0

New E. Coli Drinking Water Standard Proposed by EPA

By sustainability in Environmental and Sustainability Law
  • Posted by Jessica Lee Reece (jreece@sgrlaw.com)

The U.S. EPA has announced that it will switch its indicator standard for fecal contamination of public water systems from fecal coliform to e. coli.

In a proposed rule entitled the “National Primary Drinking Water Regulations: Revisions to the Total Coliform Rule,” EPA proposes to establish a maximum contaminant level of zero e. coli bacteria in drinking water.  EPA states that e. coli is a “more restricted group of coliform bacteria that almost always originate in the human or animal gut” and therefore is a better indicator of fecal contamination than fecal coliform.

Drinking water systems will switch to the new standard according to schedules specific to each system.

For more information, please contact Stephen E. O’Day (soday@sgrlaw.com).

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August 20, 2010 0

Landmark Ruling Could Make Livestock Processors Liable for Contractors’ CWA Violations

By sustainability in Environmental and Sustainability Law

On July 21, the U.S. District Court for the District of Maryland denied a motion to dismiss filed by Perdue Farms, Inc. in a Clean Water Act (“CWA”) citizen suit. The suit alleges Perdue is liable for CWA violations of the contractor that operates a “concentrated animal feeding operation” (CAFO) in Maryland. 

The Court held that Perdue could be liable as an operator of the facility based on allegations that it exercised control over its contractor’s chicken operations and that it was not necessary for Perdue to hold the actual permit in order to be liable for permit violations. 

The ruling could result in so-called “integrators” like Perdue being held liable when the facilities they purchase processed livestock from discharge pollutants in violation of their CWA permits, and therefore subject them to citizen suits seeking to enforce the Act’s requirements.

According to the ruling, EPA acknowledged this basis of liability for integrators in its 2001 Proposed CAFO Rule, in which it stated that “under the existing regulation and the existing case law, integrators [that] are responsible for or control the performance of the work at individual CAFOs may be subject to the CWA as an operator of the CAFO.”

The CWA makes violations by “any person” actionable in a citizen suit, and other courts “have held that ‘the CWA imposes liability both on the party who actually performed the work and on the party with responsibility for or control over performance of the work.’” 

This district court ruling could impact the operations of agricultural companies that contract with growers to produce food, where the growers either have or are required to obtain National Pollutant Discharge Elimination System Permits for discharges from their operations.  Because such companies could be liable for another company’s actions, any company that contracts with such growers should evaluate their operations in light of the court ruling. 

For more information, contact Steve O’Day (soday@sgrlaw.com) or Phillip Hoover (pehoover@sgrlaw.com).

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August 18, 2010 0

Appellate Ruling Deals Blow to Nuisance Suits for Air Pollution

By sustainability in Environmental and Sustainability Law

On July 26, the Fourth Circuit U.S. Court of Appeals reversed a lower court ruling that had found that pollutant emissions from four coal-fired power plants operated by the Tennessee Valley Authority constituted a public nuisance to the State of North Carolina, and vacated an injunction requiring stringent emissions controls on the four plants.

In its ruling, the Fourth Circuit stated that it is “difficult” to see how emissions that were explicitly permitted and regulated by EPA and the State of Tennessee could be a public nuisance.

The Court stated that “if allowed to stand, the injunction would encourage courts to use vague public nuisance standards to scuttle the nation’s carefully created system for accommodating the need for energy production and the need for clean air.” It would result in a “balkanization of clean air regulations and a confused patchwork of standards”.

The ruling is widely viewed as an impediment to the use of common law nuisance claims to address alleged air pollution when the emissions are permitted under the Clean Air Act. The ruling’s effect on pending cases challenging greenhouse gas emissions under a nuisance theory is less clear, because there is currently no permitting program for emission of greenhouse gases.

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