Managing Risks

Nov 1, 2006 12:00 PM, By John E. Osborn

Colleges and universities face a wide range of environmental risk. In spite of this, with proper planning, they can avoid emergencies or surprises. Advanced planning, coupled with strategic, technical environmental and legal advice, enable higher-education institutions to keep their environmental budgets under control and predictable.

Since 2000, the U.S. Environmental Protection Agency (EPA) has targeted higher-education institutions as one of the industries that has had trouble complying with environmental regulations. The agency has encouraged colleges and universities to take part in a voluntary environmental audit program focused on attaining compliance. Colleges and universities are asked to complete questionnaires and disclose environmental problems that may lead to violations. If the violations are corrected promptly, no violation or penalty will be issued or assessed; with a showing of good faith, schools are granted time extensions to comply.

Excluded from this amnesty program are serious environmental hazards that threaten public health and safety, and failure to follow prior judicial or administrative orders. Environmental issues that are determined to be part of a pattern of non-compliance also are excluded from amnesty and are subject to significant fines; if economic benefit has been derived from past non-compliance, that economic benefit must be forfeited.

In substance, the EPA University Initiative promotes self-disclosure and compliance by forgoing penalties if the college or university is willing to discover, disclose and correct the problems promptly.

Many universities have been proactive in turning the EPA's focus into a benefit by using it to develop an environmental road map. In response to the EPA's initiative, institutions of higher learning have developed consortiums to compare notes. This has improved awareness drastically and has led to better compliance.

For example, in Pennsylvania, the EPA, the state department of environmental protection and the Association of Colleges and Universities signed an environmental self-audit agreement that has led to environmental-compliance programs through the pooling of resources.

A long list

The range of environmental issues that face colleges and universities is broad, and institutions of higher education may not be focusing on buildings and facilities, which often are old and poorly maintained. Administrators have severe budget limitations, and educational issues typically take precedence over renovating older buildings.

The environmental-management priority list is long; when any of the priorities have been neglected, it can be treacherous:

• Lead-based paint

  The federal government has banned lead-based paint in post-1978 housing. This requirement affects a large segment of university residence halls and faculty housing. As a practical matter, schools are allowed to keep well-maintained, lead-based paint in place. Full abatement of lead-based paint is inordinately expensive.

  Universities can comply with laws relating to lead-based paint by stripping or removing window and door frames, and by using sheetrock to cover walls that have lead-based paint. The most cost-effective and prudent approach is to establish a paint-maintenance plan that is followed consistently. Peeling and flaking paint must be avoided, and each apartment or residence-hall room must be inspected as it is vacated to determine if repainting is necessary.

• Asbestos

  Colleges and universities may have asbestos present in sprayed-on fireproofing, pipe insulation, and on plumbing and heating pipes. Asbestos may have been used in plaster and roofing material.

  The best approach is to undertake a full asbestos inspection of all facilities and buildings. If asbestos is present in an area that is about to be renovated, proper planning can prevent the release of asbestos fibers. As the asbestos-abatement industry has matured, colleges and universities have no excuse for the renovation of an existing building to lead to government intervention and fines. An environmental consultant can help a university navigate through asbestos issues by developing full knowledge of the premises before renovation begins.

• Mold

  Colleges and universities should plan campus construction projects to avoid moisture problems: properly storing sheetrock so it is not left outside in the elements; emphasizing construction sequencing that ensures that the building is closed in or protected; and keeping moisture and water out before the interior finishes are installed. Plumbing and heating leaks must be avoided or addressed immediately if they occur.

  The failure to understand the appropriate use of vapor barriers can lead to problems that deteriorate the building structure in ways that are not visible. Suggested solutions must be examined with an understanding of a region's climactic conditions. Some areas do not have moisture problems; others have significantly high humidity that will exacerbate every minor design mistake in a heating and cooling system, the type of insulation material and the specified location of the vapor barrier.

  The key to mold management is to act promptly in stopping moisture from entering a structure and then to remove the material affected by the mold. An architect must address mold prevention during planning and not as an emergency matter overseen by environmental consultants.

• Underground storage tanks; groundwater and soil contamination

  Many regulations at the federal and state levels set underground-tank-management protocols. Fines for non-compliance are significant. All underground tanks inevitably will leak, so consistent due diligence and monitoring is necessary to head off expensive remediation of contaminated soil and groundwater.

• Other environmental issues and concerns

  Chemical disposal, contamination caused by the use of pesticides, and poor indoor air quality are other issues that must be on the radar screen for colleges and universities. It is important to know that environmental management is part of the capital budget and that there is an impetus to use that budget to be proactive environmentally.

Osborn is a partner with John E. Osborn, PC, New York City, a law firm concentrating in litigation and consultation on environmental law and construction contract matters.

NOTABLE

1978

Residence halls built after this year must not contain any lead-based paint, as mandated by the federal government.