environment

Improving Indoor Air Quality the Easy Way

Environmental Leader, 5/2/2014
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The natural first step most building managers take when they suspect that their building is causing health problems is to find the root cause and remove, replace or fix the problem. However, there are often more direct and less costly ways to attack poor indoor air quality, LEED trade magazine EDC reports.

Among these ways:

  • Use fewer chemicals. Cleaning chemicals, whether green or not, impact the indoor environment and using less will, naturally, lessen the impact. Janitors and other cleaning staff are wont to mix more chemical with water than necessary, according to EDC. This can be eliminated by installing an automatic dilution system.
  • Using greener chemicals can help, too. Look for products that have been independently tested and bear ecolabels such as UL’s Ecologo or the EPA’s Design for the Environment program. These are a better bet for those wanting to buy VOC-free or low environmental-impact chemicals.
  • Check vacuum cleaners. Vacuum filters are the one piece of equipment that can most contribute to indoor air quality improvement. By selecting advanced filtration filters and changing them regularly — twice a year is usually adequate — you can make drastic improvements.
  • Train workers on green cleaning. Many custodial workers don’t use environmentally friendly products in the right way. Implementing a training plan or sending workers to a green cleaning training program can overcome this problem.
  • Educate building users. Educating all those who use the building on the best ways to improve indoor air quality is the best way of making sure all building users are playing their part.

The global revenue for the indoor air quality monitoring and management market, driven by new building standards and regulations as well as a rebounding economy, will grow 80 percent to $5.6 billion by 2020, according to a forecast from Navigant Research released earlier this week.

The developed markets for indoor air quality-related HVAC markets remain sluggish — a holdover from the 2009 global recession. However, the North American market will become more robust this year. Europe will follow a similar trend but will not begin to recover until late 2014, the report says.

A Commitment to Action: Taking Recycling to the Next Level in the United States

January 13, 2014

Elisabeth Comere
Director, Environmental and Government Affairs
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When asked why recycling is so important, my response is simple: it is integral to business. Recycling is a fundamental requirement to uphold competitiveness and reputation as responsible and innovative companies.

For decades, companies and their respective trade associations have invested in various recycling initiatives aimed at recovering their own used packaging and printed paper products.  While initially such efforts reaped measurable recovery benefits, very little progress has been made in the past 10 years. We, too, have seen firsthand the benefits of a carton-specific voluntary approach through our own efforts and that of the Carton Council. However, future carton recovery progress relies on addressing the infrastructure, promotional, and harmonization needs that affect the recovery of all packaging and printed paper materials.

Discussion is ongoing among brand owners, packaging manufacturers and other “producers” regarding how to substantially increase material recovery and recycling in the United States via cross-sector collaboration.  While it has not led to much action to date, the forums for discussion have kept the conversation alive and have succeeded in elevating the knowledge and awareness level of all stakeholders through the process. The dialogue exposed the risks of inaction as well as the opportunities inherent in a robust recovery system.

Discussions have also led to extensive research conducted by multiple organizations to develop an understanding of the nuances that impact recovery success. AMERIPEN, for instance, has collected data and developed findings regarding what works best to dramatically improve recovery in cities across the US. AMERIPEN’s study combined with other research efforts have laid the groundwork by defining what needs to be done. It is now clearly understood that effective recovery requires a comprehensive set of best practices – optimized infrastructure, effective promotion and education, incentives, policies aimed at boosting recycling participation, and sustainable program funding.  Implementing best practices in all of these areas is unreasonable to ask of local governments and is more than any one material sector can bring about on their own.

Forums like Alcoa’s Action to Accelerate Recycling and AMERIPEN have primed stakeholders for collaboration bringing the right people to the table and raising the right questions to facilitate action.

The New Ask

Industry is now rallying around a new call to action: create an organized coalition(s) of private and public sector representatives to create a scalable but phased systems approach to recycling. Building upon past learnings, this approach will leverage pooled resources and use a combination of tools to strategically address priority opportunities as opposed to a series of discreet pilot programs and projects.

Experimentation in Coalition Building

To support the move from talk to collaborative action, my company is launching projects in Tennessee and North Carolina that will target communities with customized action plans addressing multiple barriers to materials recovery performance.  Depending on a community’s existing infrastructure and resources, we have identified the policies, practices and investment focus areas that will yield the greatest impact on recovery. Examples include recycling mandates or ordinances for variable-rate waste collection pricing, a transition to single-stream, roll-cart recovery systems, investment in optimizing processing facilities, working with state government to align policy and grant funding with local needs, and so on. We have estimated a total increase in recovery of over 220,000 tons if best practices and a robust outreach and education campaign are brought to bear on recycling programs across Tennessee.

We see our role in this experiment as the catalyst for collaboration. We are now building informal coalitions in Tennessee and North Carolina with key industry and government stakeholders to bring these system improvements to fruition. This experiment is testing a series of approaches on the ground to see what works at the local level allowing for replication elsewhere on a greater scale.

Aiming Higher: The SERDC Coalition

We now want to move forward with regional campaigns for collaborative voluntary producer initiatives – campaigns that build upon the learnings from state-by-state activities and stress best practices in packaging recovery to overcome funding constraints, infrastructure gaps and barriers to policy adoption.

In support of this idea, we took part in the Southeast Recycling Development Council’s (SERDC) Paper & Packaging Symposium this month in Atlanta. Involving over 100 participants, SERDC issued a straightforward call to action: Work together to recover more recyclables, of better quality, and quickly.

A common discussion thread was what distinguishes the SERDC initiative from past efforts and how that will bring about success.  Key differences are that SERDC is an established organization of state government and industry partners and other key stakeholders – the influencers are already at the table. Research to inform priorities for the region has been conducted and the group is ready to move on building the organizational mechanism to transition from research to action.

SERDC recovery initiative partners intend to explore the optimum levels of engagement of public and private resources, expertise and funding. Given growing consumer expectations and the threat of government regulation, the risk of inaction surpasses the rationale for a laissez-faire approach. We all have a stake in the outcome of recycling performance in this country and will achieve more by combining forces than through disparate action. We call on you to commit to participating in SERDC’s coalition.

Elisabeth Comere is the director of environment and government affairs for Tetra Pak in North America, the world leader in packaging and food processing solutions. She joined the company in 2006 as Environment Manager for Europe where she helped define and drive Tetra Pak’s environmental strategy. She joined the North American operations in 2010, focusing on advancing Tetra Pak’s commitment to sustainability in the US and Canada, and she is active in various industry and customer packaging and sustainability initiatives. Elisabeth previously served as a political adviser to a member of the European Parliament in Brussels, Belgium, and headed the environment department of the Food & Drink Industry group in Europe.

New Phase I Environmental Assessment Standard Just the Starting Point for Managing the Purchase of Contaminated Property

February 25, 2014
Peter R. Duchesneau
Partner, Manatt, Phelps & Phillips, LLP

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On December 30, 2013, the U.S. Environmental Protection Agency (“EPA”) adopted ASTM E1527-13, an updated Phase I environmental assessment standard for performing all appropriate inquiries to establish landowner liability protections under the U.S. Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). This new Phase I protocol clarifies the previous standard for all appropriate inquiries, which is an important first step, but not the only one for establishing landowner liability protections. With the adoption of ASTM E1527-13, buyers of potentially contaminated property should take the opportunity to revisit the other requirements and scope of landowner liability protections. By doing so, prospective purchasers will not only better their chances of effectively establishing such protections, but can also better manage risks that may fall beyond them.

CERCLA Landowner Liability Protections
Under CERCLA, existing property owners are strictly liable for the cleanup of contamination of their property, including new owners who acquire the property years after the contamination occurred. To promote the development of contaminated property, on January 11, 2002, President Bush signed the Small Business Liability Relief and Brownfields Revitalization Act, Public Law 107–118 (‘‘the Brownfields Amendments’’), which amended and clarified CERCLA by establishing three forms of landowner liability protections for new owners of contaminated property: the bona fide prospective purchaser (“BFPP”), the contiguous property owner, and the innocent landowner.

To qualify for these CERCLA landowner liability protections, the Brownfields Amendments provide that parties purchasing potentially contaminated property must comply with a number of requirements, including undertaking ‘‘all appropriate inquiries’’ into the ownership and use of the property prior to purchase. On November 1, 2005, the EPA promulgated regulations that set standards and practices for all appropriate inquiries and authorized the use of ASTM E1527-05 to comply with the rule.

ASTM E1527-13 Phase I Standard
In November 2013, ASTM International published ASTM E1527-13, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,” replacing ASTM E1527-05. In many respects, ASTM E1527-13 is the same as its predecessor. However, the new standard contains some important revisions, including a clarification that all appropriate inquires must include an assessment of vapor migration and vapor releases on, at, in or to the subject property. Other revisions to the standard include updated definitions of “Recognized Environmental Conditions” (“REC”), “Historical Recognized Environmental Conditions,” and “de minimis conditions,” as well as the addition of a new form of REC, “Controlled Recognized Environmental Conditions.” ASTM E1527-13 also contains additional requirements pertaining to regulatory agency file and records review and clarification of the “User” obligations.

A New Property Owner’s Post-Acquisition Obligations
For the most part, the requirements to establish the three protections are similar, including the necessity of performing all appropriate inquiries prior to purchasing property. While many prospective purchasers diligently attempt to perform all appropriate inquiries, the other requirements can be overlooked, as can the limitations of CERCLA landowner liability protections.

Perhaps of most concern are real property transactions where contamination or other recognized environmental conditions are identified in the course of performing all appropriate inquiries. Despite such knowledge, as a BFPP, the new owner can largely be exempt from CERCLA liability for preexisting contamination. Yet the requirement to establish the BFPP defense does not end with performing all appropriate inquires under ASTM E1527-13 prior to purchase. Buyers also have important obligations after the acquisition of property.

Parties seeking the benefit of the BFPP protections must establish, by a preponderance of evidence, each of the “painstakingly detailed statutory elements,” as one court put it in the course of rejecting a bid to secure the BFPP protections. See U.S. v. Slay, 2013 U.S. Dist. LEXIS 46204, n. 6 (2013). In all, there are eight statutory elements, including that a new property owner must provide all legally required notices with respect to the discovery or release of hazardous substances at the property; exercise appropriate care with respect to the hazardous substances found at the facility by taking reasonable steps to stop any continuing release, prevent threatened future releases and preventing or limiting exposure to previous releases; and provide full cooperation, assistance and access for response actions.

A number of courts have recently declined or otherwise expressed doubt as to BFPP claims due to the claimants’ failures to demonstrate they met their post-acquisition obligations. For instance, in Saline River Properties, LLC v. Johnson Controls, Inc., 823 F. Supp. 2d 670, 686 (E.D. Mich. 2011), the court held that the defendant had failed to demonstrate that it had not impeded performance of a response action when it broke up a concrete slab alleged to have caused hazardous substances beneath the barrier to migrate into additional soils and groundwater. In Voggenthaler v. Maryland Square, 724 F.3d 1050, 1062-1063 (9th Cir. 2013), although the Court of Appeals remanded the issue to the trial court, it expressed skepticism that the party would be able to establish a BFPP defense and show it prevented further harm and limited exposure to preexisting contamination after it demolished a building and took no steps to remove the contaminated soil or limit its spread. Similarly, in PCS Nitrogen v. Ashley II of Charleston, 714 F.3d 161, 180-181 (4th Cir. 2013), the court found that a party’s delay in filling in sumps and not stopping runoff amounted to failure to exercise appropriate care, thwarting its BFPP defense.

Environmental Risks Outside CERCLA Landowner Liability Protections
Even where a party can establish CERCLA landowner liability protections, the scope of such protections warrants careful consideration for buyers of contaminated property. There are a number of environmental risks that fall outside the purview of the CERCLA landowner liability protections. For instance, the protections do not extend to releases of fuel from underground storage tanks, given CERCLA’s petroleum exclusion. Nor do the protections necessarily apply to state cleanup claims or toxic tort actions, with laws varying by state. For example, under the California Land Reuse and Revitalization Act of 2004, an agreement with a state environmental agency must be entered into before the land owner liability protections will attach. Buyers must also be astute of contractual provisions for property acquisitions that may stymy the protections.

Despite the potential limitations of the CERCLA landowner liability protections, ASTM E1527-13 establishes a valuable starting point for buyers to assess potential environmental risks of real property and achieve CERCLA landowner liability protections. However, prospective purchasers need to remember that all appropriate inquiries is only the start and just one element for managing environmental risk when acquiring contaminated property. Other means to manage risk may be necessary, and new property owners should take care not to neglect post-acquisition obligations to achieve landowner liability protections.

Peter R. Duchesneau is a partner in the Los Angeles office of Manatt, Phelps & Phillips, LLP. His practice focuses on environmental law involving litigation, administrative proceedings, regulatory compliance and business transactions. He holds a B.S. degree in Chemical Engineering; is admitted to practice before the U.S. Patent and Trademark Office; and regularly advises clients on corporate and real estate transactions, Brownfields, and environmental due diligence. Mr. Duchesneau can be reached at (310) 312-4209 or pduchesneau@manatt.com.

This column is part of a series of articles by law firm Manatt, Phelps & Phillips, LLP’s Energy, Environment & Natural Resources practice.