Bill Penny
Bill Penny

Bill Penny is a Member in the Nashville office of Stites & Harbison. He is a member of the firm's Environmental, Natural Resources and Energy Service Group as well as the Green Industry Practice Group. Bill has more than 25 years experience in environmental law. You can contact him at william.penny@stites.com or by phone at 615-782-2308.

Bill Penny
Christina Davidow

Christina Bodewig Davidow is an Associate in the Nashville office of Stites & Harbison and a LEED Accredited Professional. She is a member of both the Environmental, Natural Resources and Energy Service Group as well as the Green Industry Practice Group. She may be contacted at christina.davidow@stites.com or by phone at 615-782-2323.

green building

EPA Issues Sustainable Design and Green Building Toolkit for Local Governments

07.21.10 4:44 PM
posted by Bill Penny

The U.S. Environmental Protection Agency (EPA) recently issued its Sustainable Design and Green Building Toolkit for Local Governments (Toolkit) in order to assist local governments in identifying and removing barriers to sustainable design and green building within their permitting process. This Toolkit addresses the codes/ordinances that would affect the design, construction, renovation, and operation and maintenance of a building and its immediate site. There are two sections to the Toolkit: the first section is an Assessment Tool and Resource Guide. The second section is a guide to developing an Action Plan for implementing changes within a community’s permitting process.

 

The goal of the Assessment Tool is to help the user better understand how a jurisdiction’s current codes/ordinances and permitting process might allow or disallow sustainable design and green building practices. The Toolkit contains an Assessment Tool, a Resource Guide, and an Action Plan for implementing changes to the permitting process.  The Assessment Tool is designed for local governments to review their permitting process and identify barriers or resistance to sustainable design practices.  The Assessment offers a green/yellow/red progress indicator for the user.  Green indicates that the community is doing well in encouraging sustainable design through its codes and ordinances. Yellow indicates that there is room for improvement within the existing permitting process. Red indicates that the community may want to identify the cause of the barrier(s) and remove it from the process. 

 

The Resource Guide contains links to existing organizations and documents that will help communities learn more about each category in the Assessment Tool.  Additionally, the Resource Guide provides users with information that can aid in making codes and ordinances more compatible or supportive of sustainable design and green building.  If green tools or techniques are not permitted or encouraged, this information can help local governments implement changes to allow these techniques. 

 

 

 

 

 

tags: green building energy sustainability sustainable design

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water

PROPOSED EPA STORMWATER RULES WILL HAVE SIGNIFICANT IMPACT ON SMALL BUSINESS: EPA SOLICITS ASSISTANCE

07.21.10 4:37 PM
posted by Bill Penny

The U.S. Environmental Protection Agency (EPA) is inviting small businesses and municipalities to nominate representatives to provide input on a proposed stormwater rule. Click here for detailed information.  EPA has determined that this rule if implemented will have a significant impact on small businesses and small governments.  The rule would strengthen the national stormwater program under the Clean Water Act (CWA) and focus on stormwater discharges from developed sites, such as subdivisions, roadways, industrial facilities, and commercial buildings or shopping centers.

The proposed rules are at 74 FR 68617-68622).  As described in that notice, EPA is considering numerous actions as part of its rulemaking, for example:

·                    Expanding the scope of stormwater discharges regulated under the CWA.   This may mean regulating additional discharges from MS4s, regulating additional discharges from areas served by currently regulated MS4s, and/or regulating discharges from developed sites.

·                    Establishing national standards for stormwater discharges from newly developed and redeveloped sites.

·                    Strengthen existing requirements for discharges from MS4s. 

·                    Revising existing MS4 regulations to set out the requirements for MS4 permits together in one place (as opposed to the separate Phase I and Phase II rules).

·                    Revising the existing MS4 regulations to include requirements for  retrofitting stormwater controls at existing developed sites that discharge to an MS4, and

·                    Including specific regulatory provisions for stormwater discharges in the Chesapeake Bay watershed.

If you are a representative of or a developer or owner of sites such as, but not limited to, subdivisions, roadways, industrial facilities, and commercial buildings or shopping centers and your business is a small business, or you represent or own or operate a small MS4 that may potentially be subject to this rulemaking, you may be eligible to serve as a Small Entity Representative (SER).

 

Selected participants would provide input to a Small Business Advocacy Review panel, which will consist of officials from EPA, the U.S. Small Business Administration and the Office of Management and Budget. The representatives will provide input on how EPA can minimize the potential burden on small entities of the proposed regulation. Nominations must be received by August 4, 2010 by sending a message to RFA-SBREFA@epa.gov or call (202) 564-2855 by no later than August 4, 2010.  

 

tags: NPDES STORMWATER MS4 EPA

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waste

COAL ASH RULEMAKING PUBLISHED IN FEDERAL REGISTER

06.21.10 10:23 AM
posted by Bill Penny

The May 4, 2010 prepublication version of EPA's co-proposal on how it plans to regulate coal ash from utilities was published on June 21, 2010.  Click here to view the rules.   The public has until July 21 to request a public hearing.  The comment period closes on September 21.

tags: coal waste hazardous waste solid waste coal ash ccp

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water

303 (d) List Available For Public Comment

06.07.10 9:28 AM
posted by Christina Davidow

TDEC recently presented its Draft 303 (d) List, which is currently available for public comment. Under the authority bestowed by the Clean Water Act, TDEC is soliciting public comments on its draft List of impaired waters.  To view the draft, please click here.

For those of you unfamiliar with the term "303 (d) List," TDEC defines it as a compilation of the streams and lakes in Tennessee that are “water quality limited” or are expected to exceed water quality standards in the next two years and need additional pollution controls. Water quality limited streams are those that have one or more properties that violate water quality standards even with the application of technology based effluent limitations.  They are considered impaired and do not fully meet designated uses.    Most of the impairments are based on biological indicators.  TDEC evaluates streams on a 5-year basis using standard operating procedures to compare the biology in a stream with a reference stream.  The 303(d) process then leads to the development of a total maximum daily load (TMDL) that provides waste load allocations for point source discharges.  The TMDL is the sum of the loading from point sources as well as non point sources plus a margin of safety. Once established, the TMDL could siginficantly affect activities from point sources.  Therefore, it is important to make sure that TDEC properly evaluates the stream in the first place to make sure it properly belongs on the list. 
 
According to 40 CFR 130.7 (b)(1), “[e]ach State shall identify those water quality-limited segments still requiring [Total Maximum Daily Loads] within its boundaries for which: (i) Technology-based effluent limitations are required … ; (ii) More stringent effluent limitations … are required by either State or local authority … ; and (iii) Other pollution control requirements (e.g., best management practices) are required by local, State, or Federal authority are not stringent enough to implement any water quality standards (WQS) applicable to such waters.”  

tags: 303(d) List Tennessee TDEC Draft CWA Clean Water Act 40 CFR 130.7 (b)(1)

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waste

RECENT UST LEGISLATION

05.19.10 10:03 AM
posted by Bill Penny

Legislation effective May 11, 2010 extends liability to other persons not previously considered to be responsible parties, allows the Commissioner to order permanent closure of a UST site and allows the commissioner to apportion liability between liable parties for costs incurred by the department. In addition, the legislation, which became Public Chapter No. 903, clarifies that the underground storage tank fund can be used not only for petroleum sites that contain the underground tanks, but allow the fund to be used to address releases where the UST’s have been removed. More significant, however, the Act adds two additional categories of responsible parties: (1) Persons who intentionally directly cause the release of petroleum and (2) any person who negligently directly causes the release of petroleum. This latter category is directed at persons not affiliated with the owner or operator of the UST or the owner of the site. Thus, the fuel supplier, for example, who negligently causes a release of petroleum when resupplying the tanks could be liable for cleanup.

 

The legislation also permits the Commissioner to order permanent closure of a UST if the UST is not brought into compliance within six months of being prohibited from receiving petroleum or if all fees, penalties and interest are not paid by the following year when the next year’s fees are due. Current law permits the Commissioner to file an action in court to collect its oversight costs. Public Chapter No. 903 makes that easier by allowing the Commissioner to issue an administrative order. In doing so, the Commissioner can apportion the amount among the responsible parties. The factors for apportionment, however, are those that typically appear in penalty considerations rather than apportionment. For example in Superfund type apportionments of oversight costs, the commissioner considers the relative contribution and other equitable factors. Apportionment among the responsible parties in this legislation include, financial benefit, culpability, efforts and expenses already paid. Like other Commissioner’s orders the assessment is final if not appealed within thirty days of receipt.

 

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