I got an early education about how different legal systems can shape decision making and problem solving. I grew up in Hawai’i during a time when there was a growing awareness of Hawaiian arts, language, culture, and science. And along with that came an examination of the legal systems put in place during the monarchy that grew from the concept of shared responsibility for land resources. Because the monarchy was illegally overthrown by Americans, its laws and land system have never fully disappeared from the legal landscape, and some of those concepts still exist today.
The story of Facebook CEO Mark Zuckerberg’s efforts to create a remote and exclusive estate on Kauai ran afoul of legal and constitutional rights of native Hawaiians, his involvement being only a part of a really interesting saga Trisha Kehaulani Watson wrote for Honolulu Civil Beat in 2019.
Whether you are financing the development of an estate in Hawai’i, signing an equipment lease in South Korea, or foreclosing on contaminated land in New South Wales, Australia, it’s critical to understand how the laws in your jurisdiction affects your environmental risks. Not only do you need to understand the environmental laws of the place where you are doing business, but you need to then match your understanding of environmental risks to the options available to financiers to collect a loan balance, enforce on property, or exit a contract.
The way that different jurisdictions regulate environmental impacts can have a big impact on whether a condition triggers action to address a health or safety condition under a particular law or regulation. California’s very specific and detailed requirements for soil vapor intrusion means that many more properties in California are being cleaned up for chlorinated solvents in soil gas compared to Texas, where there are no specific requirements.
The differences between different states can extend to lender protections. For example, in California, lenders have broad rights to investigate and even clean up properties without taking on legal liabilities under state cleanup laws, even where the lender takes title to the property for the purpose of recovering loan exposures, as long as the property is then disposed of promptly, usually within a year. But in some states these protections may not extend to affiliated legal entities that are formed to hold the asset.
Lender protections that are written into the U.S. Superfund law and many U.S. state cleanup laws will not apply to other kinds of environmental requirements, for example underground storage tanks or asbestos in building materials. Once again, it’s critical to understand the jurisdiction you’re working in and to get the right kind of legal support to sort out how jurisdictional requirements match to the environmental risks identified for a particular financial transaction.
And then there’s the difference between civil law and common law countries and how that relates to tort liabilities….ah, but that’s a topic for another day.
I spent part of the weekend catching up on a backlog of reading, including this document from the Governor's Wildfire Commission.
My stepdad's home insurance was canceled shortly after the Camp Fire, and his insurer also canceled policies of other people in our town. That started a conversation among my friends and family about how we cope with insurance, since our entire county is essentially a high risk wildfire zone. Some folks have just reduced their coverage level in order to make insurance affordable. Others are digging deeper to pay higher premiums. And of course getting cancelled is a big hassle while you are lining up a new insurance plan. My insurance company has signed me up for a risk mitigation plan, which I am guessing is a prelude to setting standards that I'll have to meet or else get cancelled. And almost everyone I know lives in an older home that doesn't meet the Chapter 7A requirements for building exterior wildfire exposure.
So what to do the experts say?
Generally the approach is that we have deal with the underlying risk, that it's not healthy to subsidize insurance to mask that risk. So there are not going to be any easy answers for me and my family and neighbors as we try to balance our finances and our safety.
Yet the number of people who live in the wildland urban interface (WUI) is very large and growing. According to the Hoover Institution, "In 2010, California had more people and homes located in the WUI than any other state in the continental United States—close to 4.5 million homes and 11 million people. The “fastest-growing land use type” in the continental United States, the WUI swelled by almost a thousand square miles in California alone between 1990 and 2000. Nationwide, sixty percent of all new home construction between 1990 and 2016 took place in the WUI. Across the country, the federal government owns or leases over 6,200 buildings located in the WUI, which President Obama sought to protect in 2016 by issuing a WUI building standard for federal facilities."
Geek Alert: Transparent Wood!
Check out this article about some of the new wood science being done by engineers and scientists out there like Céline Montanari at the KTH Royal Institute of Technology in Stockholm. The idea of using the plant cells in wood and then filling them with a fluid that helps with temperature control? Will we be using transparent wood to provide light and improve passive solar properties of our houses in mountain climates? I can imagine now how much that would be appreciate during the short dark days of winter.
Sometimes people tell me I'm just too optimistic, with my head in the clouds over all these innovations. But as with all progress, we have to dream big and try lots of different ideas, knowing that not all will become big commercial successes. I love to celebrate the people who are dreaming about how to use wood products in new ways that will be reflect a new, low-carbon world.
Right now the State of California is developing a new wood products academic center of excellence, and I'll write about that when I learn more details about where it will be based and who will be directing this exciting new program.
and flood protection and healthy waterways for California's communities, economy and environment. That's the goal and the promise of our newest state initiative.
This week Governor Gavin Newsom directed California's water agencies to prepare a resilient water portfolio that will meet California's needs for the 21st century. You can read the order by clicking here. One thing I really appreciate about this new order is that Newsom acknowledges that water infrastructure can and should include natural elements of our landscape, including forests and floodplains. He also calls for some effective strategies in developing our water portfolio of the future, including working regionally at the watershed level and incorporating successful strategies from different parts of the world.
Looking back at the history of western civilization in California, it's easy to see that we have done none of those things in the past 150 years. Our water strategy is directly descended from the Gold Rush mining practices that started with gold panning, progressed to sluicing and then quickly leveraged new technologies to develop hydraulic mining. That particular technological innovation ended up devastating river after river by dumping epic amounts of sediment and gravel that forever changed the way that water flows down from the mountains in the east, through the Central Valley and out through the San Francisco Bay. Hydraulic mining poisoned our fisheries with mercury and arsenic and forever stopped the riverboats from being able to navigate the Sacramento River to Marysville.
The Gold Rush is also responsible for our love of hydropower and dams, as our very first electrical grid in California came from hydroelectric plants and dams on the Yuba River. The Stairway of Power on the North Fork of the Feather River created a series of dams that eventually culminated in the Oroville Dam and Hyatt Power Plant. All that low-carbon and climate-friendly energy has powered homes and industries for many years, but it's also raised very serious questions about how we'll be managing these dams and reservoirs into the next century as they continue to fill with sediment and age well past their design lifetimes.
Flood control from dams and levees have carved out great sections of land in the Central Valley that have become productive farmland and made our farming families wealthy, and water is moved great distances to the enormous cities of Southern California. But we should always ask ourselves who is benefitting from this enormous water infrastructure and who is paying the cost? When the dam spillway fails, it's the rural residents living downstream who are at risk.
So when Newsom directs our state agencies to embrace new technologies and innovation, I add that we need to be very cautious in evaluating these new options. All too often, we fall in love with technology and forget about how we're paying for it, whether it's our fisheries, our navigable rivers, or our clean, drinkable water. My first recommendation is to analyze what elements of a new technology are being externalized - who or what will have to live with the byproducts or labor or degraded environment?
I've been falling in love with simpler technologies that are associated with smaller infrastructure projects distributed more widely across the land, so that when a failure occurs it is not catastrophic. I'm falling in love with projects that incorporate ecological systems from the very beginning of the design process. I'm already committed to doing more than plan and build water infrastructure but commit to generations of monitoring and assessment of projects so that we can learn from them, study projects in a changing climate, and make adjustments and improvements as we go along. Ask anyone who lives in Oroville: a dam is not a static, motionless monument but is a dynamic system in motion that requires huge commitments of time and money to maintaining and monitoring.
I often speak at public meetings about the state of affordable housing in our region. In both our rural and larger towns, we’re seeing many of the same challenges as large urban areas:
What is the federal role in affordable housing, and how can we make improvements?
The federal government has a housing subsidy program, called Section 8, that provides housing vouchers that can be associated with a renter or with a particular housing unit. In our region of California, like many other places, the program is not working very well. There are also federal financial incentive programs to encourage development of affordable housing, but in many rural areas, we are not seeing any new housing development, much less affordable housing development, so these programs do not have much impact on our communities. In the end, much of our less-expensive housing units are old, dilapidated, and may contain hazardous building materials or mold that is not healthy for tenants.
I think we can develop innovative programs that can help coordinate federal, state, and local programs and laws to improve affordable housing.
This week I spent several days with representatives from the Maidu community, government agencies, non-profits, and academia in Genesee Valley, Plumas County. We camped in a beautiful stand of trees during the hottest day of the year and got drenched in a thunderstorm and talked and laughed and learned together. It was an honor to be invited to participate in this gathering.
I learned so much that it’s hard to capture in a short article.
We talked and talked and talked about future projects that balance fire resistance with timber production and ecosystem restoration. These kinds of meetings are critical to California’s future, and we need to talk a lot more about how to best model the way and scale up projects to cover our entire forest landscape.
For more information about Genesee Valley and forest planning, visit these websites:
Since I’ve had a chance to live and spend time in Japan, the United States, and Mexico, not to mention all the time spent in industrial facilities all over the world, I’ve been able to see a number of different approaches to razing buildings. I love the term “razing,” because it can encompass a whole range of different techniques.
The most elegant work I’ve seen is in Tokyo, where space constraints and very strict waste management rules means that buildings are not demolished but are dismantled piece by piece. Here is a great little video that shows some of the challenges and solutions of working in Japan.
I’ve inspected many recycling facilities and building sites in Japan, and I will forever be in awe at the degree to which waste materials are separated and recycled, to avoid creating waste that must go into scarce landfill space. We could all learn a lot about recycling from Japan.
There is even one technique, Daruma Otoshi, that involves removing a floor at a time, starting at the bottom of the building. This remains one of my favorite ever demolition videos, especially since I’ve spent a lot of time inside the Prince Hotel before it was closed down.
And another short video that does a great job of showing Daruma Otoshi in time lapse.
With our excess of space and cheap landfills in the United States, we’re not quite so careful. In fact, we’re famous for our method of imploding buildings, which has spread to other areas of the world. There are even highlight reels of annual building implosions, including this one.
Of course, we still demolish most buildings with heavy equipment and a lot of time and effort. Two of the most common methods are with a wrecking ball (old school) and with a high reach excavator (newer school).
Building demolition in the U.S. can create a huge amount of dust, and cleaning up afterwards is really just picking everything up and trucking it all to a landfill. That means you have to remove any hazardous building materials before any demolition starts. Hazardous building materials can include asbestos, both in insulation and in everything from wall board to floor tiles. Use of friable asbestos was phased out before 1980, but asbestos can still be found in a wide range of building materials at relatively low concentrations. Lead-based paint has a similar story. It is still used on some exterior applications and was used quite a bit on interiors before 1978. Before polychlorinated biphenyls were banned in 1979, they were used extensively as insulation in liquid filled electrical equipment ranging from transformers and capacitors to small fluorescent light fixture ballasts. PCBs were also used as a plasticizer in paint (mostly in places like ships), and caulking. All of these hazardous building materials are strictly regulated as wastes and must be separated from other kinds of demolition waste. Asbestos gets landfilled in specially designed landfills where it can be sufficiently contained. Lead debris gets stabilized by mixing with concrete so that it won’t leach into the groundwater when it is landfilled. And all PCB waste gets incinerated at facilities that are designed to destroy these persistent organic chemicals at a 99.9999% destruction and removal efficiency.
I am often asked about why cleanup activities in California are more complicated than in other states. The quick answer is that California has several different laws that could trigger cleanups, and there may be a number of different regulatory agencies involved depending on the source of the contamination and the extent of contamination - whether soil, groundwater, surface water, or sediment is affected.
California is like other states, in that you must identify all the exposure pathways and address risks for human health and environmental receptors in order to close out a hazardous substance or petroleum release site. Background levels for metals can be used to support a finding of no release. Each agency has its own closeout checklist that is completed as part of the final assessment prior to regulatory closure. Engineering controls and institutional controls are used to supplement cleanup remedies and may remain in place in perpetuity through deed notices and deed restrictions. The process for completing remediation varies from one regulatory program to another. The key regulatory programs include:
DTSC uses soil cleanup standards that are geared toward human exposure and are developed by the Office of Environmental Health Hazard Assessment (OEHHA):
DTSC also has its own method for assessing risks from soil vapor intrusion:
The SWRCB is a state agency, with Regional Water Quality Control Boards (RWQCBs) for nine regions across California. Water protection, for groundwater and surface waters, fall under the authority of these agencies.
Environmental Screening Levels (ESL) were established for a wide range of exposure pathways and environmental conditions, and they address both human and environmental receptors. These are updated quite frequently, most recently in 2013. The Los Angeles and San Francisco Bay regional boards put these together, but they are applied across the state.
In order to properly apply the ESLs, it’s critical that the applicable basin plan be consulted to identify all beneficial uses of surface and groundwater for the subject site, as these beneficial uses will drive the selection of screening criteria.
For complex sites where screening levels may not adequately address multiple contaminants or synergistic effects, USEPA’s CERCLA risk assessment methodology may be used to set cleanup levels for a cleanup project.
In Arizona, there are three regulatory paths for stormwater discharge at industrial facilities:
This program falls under the National Pollutant Discharge Elimination System (NPDES) stormwater program of the national Clean Water Act, as applicable to the state and local jurisdiction where the subject property is located. States adopt general permits that cover a wide range of industrial and business activities.
A permit must be obtained for facilities where stormwater is considered “contact stormwater”, from either the state or the city, depending on where the stormwater is discharged. However, some industrial activities are not covered or exempted under general permit standards.
Non-contact stormwater flows on an industrial property means stormwater that does not come into contact with industrial operations or loading/unloading activities.
For facilities that are not planning discharge pollutants into the stormwater system, there are two ways to proceed:
Our children will enjoy in their homes electrical energy too cheap to meter... It is not too much to expect that our children will know of great periodic regional famines in the world only as matters of history, will travel effortlessly over the seas and under them and through the air with a minimum of danger and at great speeds, and will experience a lifespan far longer than ours, as disease yields and man comes to understand what causes him to age.
Lewis Strauss, chair of the Atomic Energy Commission
Even if you build the perfect reactor, you're still saddled with a people problem and an equipment problem.
David R. Brower, environmental activist and founder of the Sierra Club
I just started following The National Interest’s blog, and I’m enjoying the international perspective and diversity of contributors. I’m always interested in alternatives to carbon-based energy, and recently John Quiggin, an Australian economist, wrote about why he thinks that China’s nuclear program could work for them (Link: http://nationalinterest.org/commentary/china-can-make-nuclear-power-work-9815).
I grew up in a time when nuclear power was going to solve all our energy problems, making electricity too cheap to meter. But Quiggin points out that even by the time the Three Mile Island meltdown occurred 1979, the nuclear plant building boom in the United States was nearing an end. Long delays, cost overruns, and public opposition resulted in no new nuclear plants being completed after 1980. In contrast, the French were successful at building a large number of nuclear reactors, in an effort to convert completely to nuclear energy in the wake of the 1970s energy crises. Arnulf Grubler, one of my favorite professors at Yale, pointed to four key factors in the success of the French:
Could China, which seems to have a lot in common with 1970s France, make nuclear power work for them to reduce the amount of coal they are burning? Quiggin seems to think it’s a good possibility and would be beneficial for everyone on our planet. He points out that “China is ruled by a modernising elite that’s procapitalist but happy to exercise state control over the economy, and to ignore or crush public opposition. Like France, China seems likely to standardize on a single Westinghouse model, the AP1000. So, it’s unsurprising to see Chinese nuclear projects being completed on time and on budget while similar projects in the US and Europe are floundering.” Of course, it might be difficult for those conditions to be sustained in China into the future, and if renewables become economically competitive, nuclear could be less attractive.
I’ve spent a lot of time at all kinds of factories in China, including a number of coal fired power plants, biowaste facilities, and co-generation plants at large industrial plants. I’ve audited solar panel fabrication plants, transformer factories, and all kinds of factories making manufactured goods like CAT scan machines, escalators, and refrigerators. What worries me about nuclear power in China are the two things I see in common with all these facilities: not one of them had bothered going through the effort to get all their environmental permits in place, and not one of them had an appropriate operations and maintenance program to ensure that conditions at the factory when it was built would be sustained for more than a year or two after completion. And that brings me back to David Brower’s quote. Given the complexity and inherent risks associated with nuclear power, its success rests on the people and their ability to understand and maintain the equipment they are working with. I’m not sure any government or company can manage that for nuclear power over the lifetime of the plant and the waste it produces.