The General Assembly 2011: Stealth Sustainability Measures
March 15, 2011
The Virginia General Assembly’s last session disappointed green building advocates by failing to enact legislation requiring public entities starting to design new buildings or to conduct major building renovations to meet LEED standards or the equivalent. Although such legislation (SB832), passed the Senate and would have required such steps for buildings or renovations exceeding certain thresholds, that proposed legislation died in the House Committee on General Laws along with House versions of the same legislation.
Despite this disappointment, the General Assembly enacted several pieces of legislation which encourage:
- more sustainable building and infrastructure designs (SB1737)
- construction of renewable energy projects (HB1686, HB2389)
- environmentally benign management of lawns, an issue for the Chesapeake Bay and stormwater management of commercial real estate (HB1831).
These new measures attracted little attention but have positive and potentially significant implications for sustainable building and infrastructure efforts in the Commonwealth.
SB1737 revised section 15.2-2114 of the Virginia Code, governing stormwater regulation. The changes make it easier for municipalities to collect fees necessary to operate effective stormwater management programs, and provide authority to reduce such fees charged to property owners “that implement or participate in strategies, techniques or programs that reduce stormwater flow or pollutant loadings, or decrease the cost of maintaining or operating the public stormwater management system.” Sustainable design techniques to retain and reuse stormwater onsite may thus enjoy an operating cost advantage over property with older stormwater management measures. When this change is combined with Congress’ recent change in the Clean Water Act to make clear that federal facilities would also pay such stormwater fees, this revision may encourage significant improvements in local stormwater controls to help local rivers, creeks and streams feeding the Chesapeake Bay.
The General Assembly also enacted legislation (HB1686) directing the State Corporation Commission to consider for approval distributed solar energy electric generating projects, such as solar panels, and provide for special tariffs to encourage their use. These are to be demonstration projects by utilities and communities to assess how well these projects work, especially in congested or high load areas. Similarly, HB2389 revised section 62.1-198 to authorize the Virginia Resources Authority to finance “local government renewable energy project[s] including solar, wind, biomass, waste-to-energy, and geothermal energy projects.” Both of these new laws may help developers of new or renovated buildings seeking to use renewable energy sources as part of their projects in cooperation with local governments or local utilities.
Finally, the General Assembly adopted HB1831, a ban on the use of phosphate fertilizer for non-agricultural (lawn) use after 2013, in order to reduce the pollutant loading of phosphorous to the Chesapeake Bay. The new law also bans the use of nitrogen compounds in deicing chemicals in order to reduce nitrogen loadings to local water bodies. The new requirements are written into sections 3.2-3600 to 3611, and into parts of 10.2-104 and 603, which authorizes more stringent local ordinances. The fertilizer requirements may affect operational requirements for green roofs, bio-retention swales, and other landscaping, while the requirements governing de-icing chemicals may require some changes towards compounds which may prove more corrosive to concrete and metal components than certain nitrogen compounds currently in use. While these new rules are environmental steps forward, they may require landlords and property managers to approach maintenance tasks rather differently than they do currently.
While these legislative changes are less visibly tied to sustainable building design, construction and operation than legislation requiring adoption of LEED standards or equivalent measures, they each have significant implications for sustainable building efforts in the Commonwealth, some with respect to the financing of renewable energy systems and innovative stormwater control measures, and some concerning the design, cost, operation and maintenance of low visibility but important building and property systems to manage ice, snow, rain and vegetation at commercial and institutional buildings.
Can Olive Drab Also Be Green?: Resolving Conflicts Between Sustainable Design and Federal Antiterrorism Standards for Buildings
August 4 , 2010
The federal government is the largest tenant in the National Capital Region and helps drive our regional real estate market, setting market norms by what it seeks in its buildings, whether leased or owned. Two conflicting federal building policies – sustainable design and protection against terrorists -- create major design and implementation challenges for architects, engineers, planners, and the military agencies responsible for military and contractor buildings, especially in Northern Virginia.
This sharp conflict becomes evident when sustainable design principles are contrasted with DoD’s Minimum Antiterrorism Standards for Buildings (AT Standards).(1)
While those AT standards are quite prescriptive, they also state that “nothing in these standards should be interpreted to supersede the provisions of any other applicable building or design criteria.” Id. Paragraph 2-4.8. In cases of conflict, however, DOD’s Low Impact Development Manual states that the AT standards prevail(2), going on to note that the projects must also comply with stormwater, wetlands and other applicable legal standards.(3) Making military and contractor buildings both secure and sustainable is not only mandatory but exceedingly complex, requiring intense early attention to integrated design.
This article draws those contrasts and suggests initial steps to address the problems. These steps include careful drafting and revision of building contracts and leases, early formation of a design team versed in both sustainable design and AT standards, and inclusion of key personnel with both the security clearances and sustainable design expertise needed to assure both mandates are fully met.
Sustainability Mandates for Federal Buildings.
Recent federal policy changes are encouraging a regional market shift towards sustainable development and the use of LEED standards.(4) According to GSA congressional testimony on July 21, 2010:
GSA already requires that a LEED rating of Silver or better be part of the design criteria for all GSA new construction and major renovation projects; the agency currently has 48 LEED-certified owned and leased buildings with approximately 150 more working towards accreditation. Eighteen of these projects have exceeded the minimum with LEED Gold certifications, and one GSA lease, the FBI Regional Office in Chicago, has achieved a Platinum LEED rating for Existing Buildings. . . . According to the USGBC, the Federal Government currently has 241 LEED certified projects with another 3,373 pursuing certification. At least 14 Federal agencies have policies to promote the use of LEED in their buildings.
Two Executive Orders, one from President Obama, Ex. Ord. 13514 (2009), and one from President Bush, Ex. Ord. 13423 (2006), resulted in five guiding principles for decisions to build, renovate and lease buildings for the federal government including the military. These principles are integrated design, improved energy efficiency, improved water conservation, enhanced indoor air quality, and reduced environmental impact of the materials used. There are specific numerical targets to use in implementing these principles, targets which will help in measuring progress towards these mandates.
AT Standards and Traffic Gridlock: Creating Sitting Ducks, Fouling the Air.
The AT standards sharply conflict with key aspects of these “green” policies, a conflict well illustrated in northern Virginia by the 2005 Base Realignment and Closure (BRAC) decisions to relocate many military offices from leased space to area bases. As a result, thousands of employees who were formerly in easy walking distance of effective public transit now had to drive to area bases accessible for many people only by car on now badly overloaded roads. People who used to take Metro to Crystal City or Ballston now drive to Fort Belvoir. This was a serious backward step for this ozone air pollution nonattainment area. Of course, sustainable design principles strongly emphasize access to public transit in order to obtain LEED certification of buildings.
The AT standards require a minimum “standoff distance” to protect buildings against truck bombs. This security concern is founded in fact: truck bombs have killed hundreds of U.S. military and civilian personnel in Beirut in 1983, at Oklahoma City in 1995, at Khobar Towers in 1996, and at two U.S. embassies in Africa in 1998. That experience has been repeated in Iraq and Afghanistan.
But the BRAC implementation of the AT standards in northern Virginia may simply have traded the old set of terrorist targets, leased buildings on city streets, for a new set: military and civilian personnel sitting in large traffic jams waiting to clear security at their new locations. Traffic jams often occur at Fort Myer and Quantico (among other area bases) when security is tightened. In 1993, a terrorist waited near the CIA entrance at morning rush hour and killed critical personnel stopped in line to enter that secure location. And if the solution to such traffic problems is to ease security at base perimeters, much of the security benefit of the changed locations will be lost.
The BRAC decisions highlight serious inconsistencies in DoD’s force protection concerns: if DoD is really concerned about protecting its personnel from terrorist attack why does it refuse to pay to upgrade the roads the BRAC relocations have now badly overloaded? Aren’t these people sitting ducks in soft targets when they are stuck in traffic at an entry checkpoint or waiting at a light on the way in? Whether terrorists attack or not, thousands of people are often waiting in idling or slow moving cars, predictably polluting the air and wasting energy much more than they did in their old work locations.
Windowed Fortresses: The Pane of Sustainability?
Beyond the painfully obvious problems of security induced traffic congestion, there are other serious conflicts between AT standards and sustainable design principles, conflicts to resolve in order to improve both security and sustainability.
These conflicts include:
- AT need for new construction vs. preservation and reuse of older structures and reused materials;
- AT ban on underground or elevated parking vs. reduced stormwater footprint;
- AT ban on nearby equipment or vegetation vs. rain gardens, shade trees, green roofs;
- AT emphasis on shatterproof glazing and minimizing windows vs. emphasis on natural light and ventilation;
- Certification, Benchmarking and Security Clearances.
The AT standards are intended to make military buildings better able to survive explosive and other attacks. Some of the measures saved lives when the Pentagon was attacked on September 11, 2001. The newly refurbished section attacked that day withstood collapse much longer than prior construction would have and so allowed many people to escape with their lives. Building to prevent collapse after explosive attack requires a more robust structure than conventional office construction, as the AT standards make clear. (UFC 4-010-01, paragraphs 2-3.2, B-2.1, Standard 6. Progressive Collapse Avoidance). Similarly, AT standards suggest that fire protection be enhanced (UFC 4-010-01, paragraphs 2-4.1.4, 2-4.9).
By contrast, sustainable design principles such as those used in the LEED system reward the reuse of building materials and the rehabilitation of old structures. Meeting the tougher design standards for strength will make it much harder to use old structures and harder to reuse materials. The LEED system also rewards the use of sustainable materials, e.g. wood, usage of which may be discouraged by the AT standards increased emphasis on fire protection.
- Parking: Bigger Footprints, More Stormwater Pollution.
The AT standards and their standoff requirements were a major factor in BRAC decisions moving military offices onto bases accessible only by car for most employees. Parking needs will be greater than in the prior locations served by Metro, requiring construction of larger parking lots. The AT standards strongly discourage measures to reduce this footprint, measures such as elevated or underground parking garages in new buildings. (AT Standards, Appendix B, Paragraph B-1.5, Standard 5. Parking Beneath Buildings or on Rooftops.)
By contrast, sustainable design principles as well as EPA storm water permitting standards will make this “big footprint” approach troublesome and potentially costly. These standards need to be especially stringent in this region because of serious storm water pollution. To that end, requirements are geared towards onsite retention and reuse of water, both to reduce the volume discharged to surface waters and to reduce the instantaneous volume, a major problem for stream erosion and sediment. Large parking lots will need to carefully planned and constructed, using permeable pavement, rain gardens, and similar measures, as well as providing means to reuse the water for non-potable purposes. These challenges may be significant given the predominant clay soil types in Fairfax County and other Piedmont regions, soils significantly limiting infiltration of water into the ground. Similarly, location of parking lots over older areas of bases contaminated from prior industrial or maintenance use will also limit the use of infiltration to handle stormwater.
- Building Utilities Location
The AT standards prescribe unobstructed space of at least ten meters from the building so that “aggressors” cannot conceal explosives. Paragraph B-1.2, Standard 2. Unobstructed Space. The standards also state that “the preferred location of electrical and mechanical equipment such as transformers, air-cooled condensers, packaged chillers is outside the unobstructed space or on the roof. Id. Paragraph B-1.2.1. Roof access is to be tightly controlled. Id. Paragraph B-3.5, Standard 14. Roof Access. Air intakes are to be at least three meters above the ground for new buildings. Id. Paragraph B-4.1, Standard 16. Air Intakes. “Critical or fragile utilities” in new construction are not to be located on exterior walls or walls shared with mail rooms. Id. Paragraph B-4.4.1, Standard 19. Utility Distribution and Installation.
These requirements will complicate construction of rain gardens around buildings to handle stormwater, as well as to discourage planting of shade trees to reduce summer cooling costs in the building. Both of these measures – rain gardens and shade trees – are commonly considered in sustainable design. Similarly, the preferred location of utility systems on the roof (instead of at what may be an inefficient distance from the building) will complicate design and construction of any green roof system, another common design feature in sustainable buildings. Requirements restricting location of utilities will further complicate the sustainable design task.
- Glass & Shades: Light, Ventilation and Danger.
Sustainable design tends to emphasize use of natural light, natural ventilation, and wisely oriented shade. These measures reduce the size and energy intensity of lighting and HVAC systems and generally result in healthier indoor air, better lighting, and more comfortable temperatures inside and higher worker productivity.
Some of the most detailed AT building requirements, covering more than six pages, govern the glazing and framing of windows. Id. Paragraph B-3.1. Windows and Skylights. These are intended primarily to protect people from the real danger of flying glass from an explosion. Retrofits using fragment retention film are forbidden in all but leased buildings. Paragraph B-3.1.7. These requirements will effectively ban windows that open for ventilation and limit the choice of glass materials to those which will meet the standards for shatter resistance. These may be significant impediments to sustainable design.
Other AT recommended standards say simply “to minimize the potential for glazing hazards, minimize the size and number of windows in new construction.” Paragraph C-2.7. Related recommendations counsel the location of key personnel and assets away from the building exterior and windows, and thus away from natural light or ventilation, while discouraging the use of external hallways. Id. Paragraphs C-2.4, C-2.5, C-2.6. The AT standards also forbid new buildings to have overhangs with inhabited areas located above them. Paragraph B-2.3. Standard 8. Building Overhangs.
These AT recommendations, particularly to minimize the number and size of windows and to move people away from them, runs sharply counter to the use of natural light, shade and air in sustainable buildings. If these issues are not addressed early and wisely in design, the result may be buildings which comply with AT standards but which are costly, inefficient, uncomfortable and unhealthy. Our military personnel deserve better.
- Certification, Benchmarking and Security Clearances.
Many building performance rating systems track building performance over time and can require access to numerous portions of the affected building. This emphasis on field performance is very important to assure that buildings achieve the environmental and efficiency benefits for which they were designed.
Although not all military operations are classified, particularly mundane office functions such as finance, human resources, and related work, military requirements often prohibit access by foreign nationals to certain unclassified information. When contractors hire recent immigrants for entry level jobs this requirement creates problems for work such as document production and facility maintenance. And where more national security classification is an issue, experience in the environmental compliance arena demonstrates that access for inspections becomes a serious problem. These access obstacles may create serious impediments to proving that military buildings are meeting sustainability targets mandated by the applicable Executive Orders and legislation.
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A skilled architect will undoubtedly spot additional conflicting requirements between AT standards and sustainable design principles. Likewise, there will be some complimentary requirements such as tighter insulation for sustainability and the AT standards’ emphasis on resistance to chemical and biological attacks.
These serious conflicts in design requirements underline the importance of the first principle in sustainable design: early integrated design. On a practical level, this will require early determination of specific environmental and sustainability requirements, as well as tenant or building owner operating requirements and security obligations.
Implementation may also require acquisition of necessary security clearances by key contractor personnel, a process requiring the active cooperation of the sponsoring military agency. These personnel have had less need for such clearances in the past but will now need to know much more about the military security requirements and agency operating needs in order to produce workable, efficient, sustainable and comfortable buildings for our military needs.
For building owners trying to lease space to serve the military’s needs, these overlapping requirements make careful advance review of building contracts and leases critical essential to address both the AT and sustainability requirements.
These overlapping federal requirements make it crucial to form a design team early, a team consisting not only of skilled architects but also of counsel and consultants conversant with both military security requirements and sustainability principles. If approached this way, the military can meet both its security and sustainability challenges effectively.
DoD Minimum Antiterrorism Standards for Buildings (Unified Facilities Criteria (UFC) 4-010-01), adopted October 2003, revised, January 2007.
DoD Low Impact Development Manual (UFC 3-210-10), adopted October 2004, paragraph 2-2.3.
Id. paragraph 2-3.
There is an excellent website, the Whole Building Design Guide, http://www.wbdg.org/, sponsored by the National Building Design Institute with support from many federal agencies, including the Department of Defense (DOD), as well as private organizations, setting forth federal high performance building requirements in considerable detail, giving examples and providing numerous resources for those seeking to build such high performance or “green” federal buildings, or to renovate existing federal buildings to make them “greener,” or better performing.
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(1) DoD Minimum Antiterrorism Standards for Buildings (Unified Facilities Criteria (UFC) 4-010-01), adopted October 2003, revised, January 2007.
(2) DoD Low Impact Development Manual (UFC 3-210-10), adopted October 2004, paragraph 2-2.3.
(3) Id. paragraph 2-3.
(4) There is an excellent website, the Whole Building Design Guide,
http://www.wbdg.org/, sponsored by the National Building Design Institute with support from many federal agencies, including the Department of Defense (DOD), as well as private organizations, setting forth federal high performance building requirements in considerable detail, giving examples and providing numerous resources for those seeking to build such high performance or “green” federal buildings, or to renovate existing federal buildings to make them “greener,” or better performing.
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LINK TO DIAGRAMS
Diagrams from the Pentagon's antiterrorism standards for buildings show the standoff distances for various building configurations required by these rules. These distances make it very difficult for leased space inside the Beltway to meet the standards and thus discourage location of DoD work at locations served by the Metro.
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Russ Randle, together with his colleagues Scott Stewart, Bob Brams, and David Farber, works on sustainable design and related environmental, construction and insurance law issues for clients at Patton Boggs LLP. Our e-mails are rrandle@pattonboggs.com, sstewart@pattonboggs.com, rbrams@pattonboggs.com, and dfarber@pattonboggs.com.
